(i) By jus sanguinis, followed by the United States, the child of an American father, though born abroad, ordinarily would acquire his father's nationality. Other states follow the same rule. Certain states, including the United States, also follow the jus soli, by which children born within the state acquire the nationality of the place of birth. There might, therefore, be a conflict as to allegiance. To obviate this it has become customary to allow the child born abroad to elect, on arriving at majority, whether he will assume the nationality of the place of birth or of his parentage.

EXPATRIATION.

46. Expatriation is the renunciation or abandonment of nationality.

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The doctrine of perpetual or indelible allegiance has been maintained by many states. There was much difference of opinion in the United States in regard to the right of expatriation, till by an act of July 27, 1868, restrictions upon the right of expatriation were "declared inconsistent with the fundamental principles of this government." Great Britain had for many years particularly maintained the doctrine of inalienable allegiance. This was distinctly renounced in 1870.85 It is now recognized that citizenship may be forfeited by naturalization in a foreign state, by marriage to a foreigner in case of a woman, by entering the military service of a foreign state, by certain other service involving the taking of an oath of allegiance, by desertion from the army or navy, by longcontinued residence abroad, or, in case of naturalized citizens, by residence abroad for a shorter period. Not all states are agreed upon these grounds of expatriation or forfeiture of citizenship. The United States has maintained that service in a foreign army does not necessarily forfeit citizenship. The Netherlands law holds a citizen expatriated if he enters for

the United States shall be held by the government of Austria and Hungary to be American citizens, and shall be treated as such." 84 3 Moore, § 431, ff.; Moore, American Diplomacy, c. VII.

85 Act Concerning Aliens and British Subjects, May 12, 1870 (St. 33 & 34 Vict. 105, c. 14).

eign military service without permission. Some states maintain that residence abroad for a definite period forfeits citizenship; others require proof of intention to remain. German law prescribes that ten years' residence abroad may forfeit German nationality and possibly render a German heimatlos. The United States has frequently demanded proof of animus manendi.

There have been many treaties in regard to expatriation. A common provision of such treaties is to prescribe for the mutual recognition of naturalization as a means terminating prior citizenship. Citizenship based on naturalization may, however, lapse through residence abroad. The law of the United States of March 2, 1907,s provides in general that two years of residence in the foreign state from which he came, or five years of residence in any other foreign state, may expatriate a naturalized citizen.87

PROTECTION OF NATIONALS.

47. (a) A state usually extends as full protection as possible to its native nationals in foreign states.

(b) A like protection is extended to its naturalized nationals in states other than those of their previous allegiance. (c) A degree of protection is extended to those who through taking steps toward obtaining its citizenship have an inchoate right of nationality in a state, even though the new citizenship is not yet granted.

(a) While a state usually extends as full protection as possible to its native nationals, this protection may be conditioned

86 Act March 2, 1907, 34 Stat. 1228 (U. S. Comp St. Supp. 1909, p. 438). See, also, Van Dyne, Naturalization in a Foreign State, c. V. 87 "When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, that such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, that no American citizen shall be allowed to expatriate himself when this country is at war." 34 Stat. 1228 (U. S. Comp. St. Supp. 1909, p. 438).

upon the acts of the nationals themselves. The limits of protection of native nationals abroad depend upon the laws of the foreign state and upon treaty relations.

The rights of a national of one state in another state are usually specified in treaty agreement. Article II of the Treaty of July 3, 1902, between the United States and Spain provides that:

"There shall be a full, entire and reciprocal liberty of commerce and navigation between the citizens and subjects of the two high contracting parties, who shall have reciprocally the right, on conforming to the laws of the country, to enter, travel and reside in all parts of their respective territories, saving always the right of expulsion which each government reserves to itself, and they shall enjoy in this respect, for the protection of their persons and their property, the same treatment and the same rights as the citizens or subjects of the country or the citizens or subjects of the most favored nation.

"They can freely exercise their industry or their business, as well wholesale as retail, without being subjected as to their persons or their property, to any taxes, general or local, imposts or conditions whatsoever, other or more onerous than those which are imposed or may be imposed upon the citizens or subjects of the country or the citizens or subjects of the most favored nation.

"It is, however, understood that these provisions are not intended to annul or prevent, or constitute any exception from the laws, ordinances and special regulations respecting taxation, commerce, health, police, and public security, in force or hereafter made in the respective countries and applying to foreigners in general."

Nationals of a foreign state cannot claim more privileges than the subjects of the state in which they are for the time. As the foreign state has relations only with the national government, the national government cannot disclaim ordinary responsibility because its control of local divisions is of a restricted character. Instances have arisen in the United States in which the jurisdiction of the local states over aliens has given rise to complications in consequence of conflict with the national jurisdiction. Several cases of lynching have taken

place in certain states. In some instances those guilty of participation have not been punished, owing to the impossibility of enforcing the penalties through the local courts, which have jurisdiction. Mr. Hay, Secretary of State of the United States, in a letter to Baron Fava, the Ambassador of Italy, in regard to the lynching of certain Italians in Tallulah, Louisiana, in July, 1899, said on June 12, 1900:

"Excellency: I have the honor to acknowledge the receipt of your excellency's esteemed favor of May 6 in relation to the cruel lynching at Tallulah.

"In answer to your inquiry as to 'what measures the federal government intends to take in order to settle this unfortunate matter,' and to the assurance of your faith in the efficient action of the Department for the prevention in future of any repetition of such atrocious outrages, and for the application of remedial measures to the failure on the part of the Louisiana authorities to do justice, it should hardly seem necessary to testify to your excellency the unqualified condemnation with which the government of the United States views all such acts of lawless violence, whether committed against the subjects of other States residing in the United States or against its own citizens.

"Your excellency is advised of the dual nature of our government, and of the defect in the federal laws, which the President has sought, so far as lies in his power, to have remedied, and of the prompt and energetic measures adopted by the Department of State with a view to the punishment, by the only competent authorities, of the authors of the crime under discussion.

"It having been shown that Italian subjects were slain by said lynching, and that there has been a failure on the part of the only competent authorities to indict or bring the guilty parties to trial in any form, the President feels that a case has been established that should be submitted to the consideration of Congress, with a view to the relief of the families of Italian subjects who lost their lives by lawless violence, which will accordingly be done on the reassembling of Congress in December next.'

"988

88 Foreign Relations U. S. 1900, p. 722,

Presidents of the United States have repeatedly recommended that legislation be passed conferring upon the federal courts jurisdiction in cases involving the treaty rights of aliens. There have been several cases of violence against Italians for which the national government has paid indemnity. The indemnity for the lynching in New Orleans in 1890 amounted to nearly $25,000.

89

By an act of Congress of March 3, 1901, it was voted:

"To pay, out of humane consideration, without reference to the question of liability therefor, to the Italian government as full indemnity to the heirs of Joseph Defatta and John Cyrano, Italian citizens who were lynched at Tallulah, Louisiana, on July twentieth, eighteen hundred and ninety-nine, four thousand dollars." 90

The United States has thus in fact recognized its responsibility in many cases. The correspondence with foreign states. on this subject covers many pages of the United States Foreign Relations since 1891, and receives considerable attention in the messages of the Presidents.

Over its nationals outside the jurisdiction of any state the state exercises full jurisdiction and protection as on its vessels on the high sea. A large degree of protection is also often extended to nationals in dependent areas, even when these are not incorporated into the state."1 When a native national by residence abroad changes his domicile2 to the foreign state, he cannot as of right claim protection from his native state. The rights and obligations of citizenship are naturally correlative. Long residence abroad and identification of interests with those of the foreign state may be sufficient evidence of intent to acquire a foreign domicile to warrant the withdrawal of national protection.

89 Id. 1891, pp. 665–713; 1895, II, pp. 938-954; 1896. 90 31 Stat. 1010, c. 831.

91 Hall, Foreign Jurisdiction of the British Crown, c. 3.

92 Domicile by the Roman law was "the place from which a person going was on a journey and to which returning he was at his journey's end"-"unde cum profectus est perigrinari jam videtur, quo si rediit peregrinari jam destitit."