tria, Germany, Hungary, Russia, perhaps the new countries carved out of Russian territory, Japan and China1 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. Clarke 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," 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.8

Thus, the United States claims as its nationals not only persons born in this country, without regard to the nationality 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.

The first statute in England conferring English nationality upon persons born abroad of English fathers was an Act of 25 Edward III. There have been several subsequent British statutes on the subject. The present British law governing the status of persons born abroad of British subjects is found in the British Nationality and Status of Aliens Act of 1914, as amended by Acts of 1918 and 1922. While the nationality laws of most of the Latin American countries are based primarily on the principle of jus soli, those of Mexico, Salvador, the Dominican Republic and Haiti seem to be based primarily on the other principle. The laws of Colombia, Ecuador and Nicaragua seem to be based upon neither jus soli nor jus sanguinis, but rather upon the parental domicil. Persons born in those countries of native parents or of domiciled aliens have the nationality of the countries of birth. Domicil plays an important part in the nationality laws of nearly all of the Latin American countries. In most of them persons born abroad of their nationals acquire their nationality only when they acquire a domicil within their territories. In some cases registration in the civil register is required before persons born abroad of nationals of these countries acquire their nationality.

As a rule, the nationality laws of Latin American countries defer to the reasonable demands of foreign countries. The law of Venezuela is peculiar. Like Siam, Venezuela has adopted both jus soli and jus sanguinis without limitation. All persons born in Venezuela and all persons born abroad of Venezuelan parents have Venezuelan nationality. For the most part, however, the nationality laws of the Latin American countries seem remarkably logical and reasonable.

While the nationality laws of the countries of continental Europe are based principally upon jus sanguinis, most of them contain provisions under which nationality is derived, upon certain conditions, from the fact of birth within the territory. Thus, Article 8 of the French Civil Code provides, in Sections 2, 3 and 4, that the following are French:

2. Every person born in France of unknown parents or of parents whose nationality is unknown;

3. Every person born in France of a foreigner himself born there;

4. Every person born in France of a foreigner, and who, at the time of attaining his majority, is domiciled in France, unless, within the year following his majority, as regulated by the French law, he has declined French nationality and proved that he has preserved the nationality of his parents, etc.

3. This divergency of legislation is often a cause of conflict between two or more countries on the subject of the nationality of an individual.

The "divergency" referred to seems to be that which exists between the nationality laws of the American Republics and those of the European states, referred to in the preceding paragraph. It is quite true that this divergency gives rise to numerous conflicts between the claims of European states and the claims of countries of the Western Hemisphere. The Department of State, in connection with the issuance of passports or the extension of diplomatic protection, is called upon daily to deal with cases of individuals who are citizens of the United States under the law of this country and are also citizens of certain European countries under their laws. Most of these cases relate to persons who were born in the United States of parents of European nationality. Usually the persons concerned were taken in early childhood by their parents to the countries from which the latter came and have remained there ever since. Frequently it appears that they have reached the military age and are applying for American passports or consular registration certificates in order to avoid the performance of military service. The rule of this government is to refuse to grant protection to persons who, although they may claim American citizenship through the fact of birth in this country, are also claimed as nationals of the country in which they reside, under its laws. The opposite course would seem to be unreasonable. The Government of the United States cannot consistently claim as nationals of this country persons born abroad of American parents, as it does, and at the same time deny the right of

foreign states to make a similar claim in cases of persons born in the United States of their nationals.

Moroever, whether or not it appears that the foreign state is asserting its claim in the case of an individual born in the United States of parents having the nationality of such state, this government declines to grant protection where the person in question, after reaching his majority, has continued to reside for a protracted period in the foreign country. This is believed to be a reasonable rule. This government is not morally obligated, nor is it to its interest, to extend its protection indefinitely to persons who contribute nothing to this country and have evidently abandoned their ties with the United States and identified themselves with the countries of their parents' nationality. There is no magic in the bare fact of birth on American soil which entitles an individual to the protection of this government forever, no matter where he lives or what he does. The obligation is mutual. It does not rest entirely upon the government. The individual, in order to merit protection abroad as a citizen of the United States, must fulfill the obligations of citizenship.

Sometimes the denial of protection in cases of the kind mentioned has been based upon the ground that the persons in question had "elected" the nationality of the foreign country where they resided. Numbers of cases are cited in Moore's International Law Digest in which the Department of State has denied protection to persons who were born with dual nationality, upon the ground that they had manifested an "election" of the foreign nationality. In some cases the courts of this country have made mention of the doctrine of "election." It is believed, however, that the statements of the courts referred to were in the nature of obiter dicta, and that, as a matter of strict law, an American national does not lose his American nationality by merely electing the nationality of another country, although, of course, he does lose his American nationality,

See especially Vol. III, pp. 549-551.