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as a synonym of gross income. However, it should be remembered that the tax rates are not applied against this income in its entirety, but are, instead, computed upon the basis of the net income arrived at by the deduction of such expenses and losses as have been allowed by the controlling statute as offsets, or outgo, against the income which we have considered. Legally, these deductions might be termed as exemptions of portions of the income which might be taxed and their nature is to be determined entirely from the wording of the statute which creates them. This being true, an explanation of such deductions belongs rather to a discussion of particular statutory enactment rather than to a consideration of the fundamental legal concepts which stand behind and above the expressions of Congress, such as has been attempted in this series.

In concluding this article we may well revert to the very beginning, and repeat again the classical definition of Mr. Justice Pitney in the Macomber Case; this time, it is hoped with a better understanding of its meaning and a fuller realization of its basic worth:

“ 'Income may be defined as the gain derived from capital, from labor, or from both combined, provided it be understood to include profit gained through a sale or conversion of capital assets. . 'Derived-fromcapital:' the gain-derived-from-capital, etc. Here we have the essential matter; not a gain accruing to capital; not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value, proceeding from the property, severed from the capital, however, received or drawn by the recipient (the taxpayer) for his separate use, benefit, and disposalthat is income derived from property, nothing else answers the description."

and that is the "legal concept” of “income” far better expressed than it is likely to be by any text writer of this or coming generations.

* Eisner v. Macomber, supra.

THE PROPOSED PAN AMERICAN CONVENTION FOR
PREVENTING DUAL NATIONALITY, DRAFTED
AT LIMA BY THE AMERICAN INSTITUTE

OF INTERNATIONAL LAW.*

ADDRESS BY RICHARD W. FLOURNOY, JR.

(Assistant to the Solicitor, Department of State, Professor

of International Law, National University.)

N the present paper I shall discuss only those portions of

the proposed convention which relate to dual nationality, existing in the cases of persons born in one country of parents having the nationality of another country. I shall endeavor to treat the subject in a practical way, avoiding as far as possible unnecessary citations of authorities. In the present instance we are interested not so much in what the law is or has been as in what the law should be, although it will, of course, be necessary to consider to some extent the provisions of the various nationality laws now in effect, which give rise to the problem before us.

All who have had to deal much with cases of dual nationality, whether officially or unofficially, realize the great need of having the laws changed in such a way as either to prevent the condition of dual nationality from arising at all, or, if this proves infeasible, to have it terminated in each case when the person concerned reaches majority or shortly thereafter. It is hopeless to attempt to accomplish this by piecemeal legislation or bilateral treaties. It can be settled in a satisfactory way only through the adoption of a multilateral convention, supplemented, perhaps, by special legislation in each country. Whether or not the draft convention prepared at Lima meets the present need aptly and adequately, it serves a very useful purpose in calling attention to the important subject with which it deals and furnishes a starting point and a basis of discussion.

As the various parts of the proposed convention are arranged in an orderly fashion, we may very well begin at the beginning of the preamble and consider the several paragraphs in order, omitting those which do not relate to the particular subject now before us.

* Reprinted from the Proceedings of the American Society of International Law, Washington, D. C., April 23-25, 1925

1. At present two different and even opposing systems exist for the determination of nationality, the one of jus soli and the other of jus sanguinis:

In this paper no attempt will be made to discuss at length the history of the two systems mentioned. Suffice it to say that jus sanguinis, which is the basis of the present laws of nationality of the countries of continental Europe and Asia, is evidently the older of the two. Under jus sanguinis a person is a national of a particular country because his parents are, or one of them is, a national thereof. Under the older civilizations membership in a nation arose from membership in one of the tribes composing it, and membership in a tribe generally came from membership in a clan or family belonging to the tribe.

Jus soli, under which nationality of a particular country arises from the mere fact of birth within its territory, or to be more accurate, within its territory and jurisdiction, seems to have arisen out of the feudal system. It is the basis of the British law of nationality. It is discussed very fully in Calvin's Case, 7 Coke 1, which was tried in the year 1608, in the Exchequer Chamber, before the Lord Chancellor and all the judges of England. In this case it was held that "they that are born under the obedience, power, faith, ligealty or ligeance of the King, are natural subjects, and no aliens.” According to this theory it makes no difference whether the residence of the parents within the territory of the country is permanent or temporary, but it is essential that the child be born within the "obedience, power,” etc. of the king, or, as we would say, "within the jurisdiction" of the state. This distinction accounts for the exceptions in cases of certain children born within the territory, such as children of foreign diplomatic representatives and children born in places occupied by enemy forces.

Only a few countries have their law of native citizenship based entirely on jus sanguinis. It is understood that Aus

tria, Germany, Hungary, Russia, perhaps the new countries carved out of Russian territory, Japan and Chinal are of this class. France and most of the other continental European countries, while their laws of nationality seem to be based primarily upon jus sanguinis, have also adopted the principle of jus soli to a limited extent, just as, in the converse case Great Britain and the United States, while basing their laws of nationality primarily upon jus soli, have also adopted provisions partaking of the principle of jus sanguinis.

The French law of nationality, which appears to have been copied more or less by a number of continental European countries, is the Code Napoleon with certain amendments, principally those of the law of June 28, 1889. It is interesting to note that the old French law of nationality was based upon the opposite principle, that is jus soli, or the feudal rule.2

One would naturally expect that nationality laws, because of their basic character, would be fairly stable. As a matter of fact, they seem to be especially subject to change. Within the past decade the nationality laws of most, if not all, of the principal countries of the world have been changed to a considerable extent, in some cases quite radically. They seem to be in a more or less fluid state. While these changes are somewhat confusing, they may be regarded, in a sense, as encouraging, because it will naturally be easier, through the adoption of international conventions, to bring about harmony where the laws are in a state of flux than it would be if the laws of the various countries were fixed and permanent in character.

2. The American Republics, as countries of immigration, interested in the growth of their population, have, in general, adopted the first of these systems, whereas European States have generally adopted the second.

* The Chinese have a proverb that chickens born in an oven are not

biscuits. •Calvo, Droit International, Vol. II, 28, citing Pothier.

This statement is correct in a general way, but it is subject to important exceptions.

In our own country the law of nationality by birth is the English common law, tacitly adopted when independence was achieved, and ever since retained. The provision of the 14th Amendment to the Constitution that “all persons born .. in the United States and subject to the jurisdiction thereof are citizens of the United States" was merely declaratory of the preexisting common law rule. Nationality by birth in the United States is discussed fully in the opinions of the courts in Lynch v. Clarkes and United States v. Wong Kim Ark."

Citizenship of the United States was first conferred upon children born abroad of American parents by an Act of Congress of 1790,5 which was replaced by an Act of 1795,9 and this, in turn, by an Act of 1802. As the latter was not prospective in effect, it was found necessary in 1855 to pass a fourth Act, which, embodied in Section 1993 of the Revised Statutes, is our present law on this subject. It reads as follows:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

Thus, the United States claims as its nationals not only persons born in this country, without regard to the nation. I ality of their parents, but also persons born abroad of American fathers, provided the latter have resided in this country. Perhaps certain organizations will sooner or later insist that persons born abroad of American mothers should have American nationality, without regard to the nationality of their fathers, thus further complicating laws already too complicated.

'1 Sandford 583.
'1 Stat. 104 Ch. 3.
? 2 Stat. 155, Ch. 28.

• 169 U. S. 649.
• 1 Stat. Ch. 20.
'1 Comp. Stat. 1901, p. 1268.

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