JURISDICTION OVER PERSONS-NATIONALS.

44. Nationals are persons who owe allegiance to a state and are entitled to its protection.

In the discussions of the jurisdiction over persons, the words "citizen," "subject," "person within the jurisdiction of a state," have been used in so many different senses that in recent years the word "national" has been introduced as the term to designate those who owe allegiance to and are entitled to the protection of a given state. The conditions requisite for citizenship are of significance to other branches of public law, rather than to international law.

Over its nationals within its own jurisdiction a state has full authority. This jurisdiction extends, not merely to its domain, but to the ships under its flag on the high seas.

Over its nationals within foreign jurisdiction a state has a qualified jurisdiction, varying according to circumstances and according to the law and practice of the foreign state.

Over its nationals when in a foreign port on vessels flying its flag, for acts beginning and ending on board the vessel, or for acts which do not take effect outside the vessel, a state has, in general, jurisdiction.

Certain persons are by practice exempt from foreign jurisdiction, and under the authority of the state to which they owe allegiance, as in case of a diplomat and the persons connected with the suite of a diplomat.

States sometimes claim authority over their nationals sojourning within a foreign jurisdiction. Claim to authority to call home nationals who may be abroad in time of war has been made from time to time. Claim to authority to punish nationals for crimes committed abroad has been admitted.

Many phases of the jurisdiction over nationals belong to the field of "Conflict of Laws," or "International Private Law." Other phases of the subject will be treated in Part III, "Intercourse of States," and under appropriate sections elsewhere.

ACQUISITION OF NATIONALITY.

45. Nationality may be determined by place of birth, jus soli; by the nationality of the parents, jus sanguinis; or by some form of naturalization.58

While nationality is not determined by international law, its determination is often a subject of international negotiation; indeed, few subjects have given rise to so many diplomatic controversies. The laws determining nationality in different states are unlike, and sometimes there are different methods of determination within the same state." 59

The United States laws provide that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 60 Here the jus soli is followed. Great Britain and South American states generally follow jus soli.

61

The United States law also provides that "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." Here the jus sanguinis is followed; but the father must be a citizen of the United States at the time of the birth of the child, and must have resided in the United States. By the act of March 2, 1907, children, born of American parents resident abroad, who continue to reside abroad, in order to receive the protection of the United States must "upon reaching the age of eighteen years record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath

58 For full treatment of United States practice see Van Dyne, Naturalization in the United States.

59 By Act June 29, 1906, the United States established a Bureau of Naturalization in the Department of Commerce and Labor. 34

Stat. 596 (U. S. Comp. St. Supp. 1909, p. 477).

60 Const. U. S. Amend. 14. See, also, Foreign Relations U. S. 1901,

p. 303; Great Britain, Act May 12, 1870, art. 4.

61 Rev. St. § 1993 (U. S. Comp. St. 1901, p. 1268).

of allegiance to the United States upon attaining their majority." The race, residence, or status of the mother does not affect the status of the child, provided only the father is a citizen at the time of the child's birth.62

63

Foundlings are regarded as nationals of the state in which they are found. An illegitimate child, born within the state of which the mother is a subject, is a national of that state. It has been held that an illegitimate child born abroad to an American woman is not entitled to United States citizenship.": As some other states follow the jus soli, and some the jus sanguinis, and some, like the United States, follow both, there has grown up the practice of allowing the child born abroad to elect his allegiance upon attaining his majority. Certain states, however, require in case of renunciation, not merely that citizenship be renounced by the child, but also that the renunciation be accepted by the state of which the parents are nationals.64

Naturalization is the act conferring on a foreigner the status of a national.

Naturalization may be (a) by general law; (b) by marriage; (c) through act of parent; (d) through general transfer of allegiance by treaty of cession, purchase, etc.; (e) through the transfer of allegiance by conquest; (f) in consequence of certain special service, etc.; (g) by admission of new territory. into a state; (h) by special act of legislation; (i) by election. (a) The laws in regard to the acquisition of nationality vary greatly in different states. In general, they require a renunciation of allegiance to the parent state and an oath of allegiance to the adopted state."5

62 Foreign Relations U. S. 1903, p. 45.

63 Guyer v. Smith, 22 Md. 239, 85 Am. Dec. 650.

64 Swiss Law, July 3, 1876. The jus sanguinis is also followed by Austria, Civil Code, art. 23; Hungary, Law Dec. 24, 1879; Germany, Law June 1, 1870; Sweden, Law Feb. 5, 1858.

65 In the United States the act of Congress of June 29, 1906, provides in section 4:

"That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise:

"First. He shall declare on oath before the clerk of any court

(b) In general, a woman by marriage acquires the nationality of her husband, though this does not follow unless she

authorized by this act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject.

*

"Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing. The petition shall set forth that he is not a disbeliever in or opposed to organized government, or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government, a polygamist or believer in the practice of polygamy, and that it is his intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince.

"Third. He shall, before he is admitted to citizenship, declare on oath in open court that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.

"Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.

"Fifth. In case the alien applying to be admitted to citizenship has borne any hereditary title, or has been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or

would in her own right be entitled to obtain such nationality." If a United States citizen should marry a Chinese woman, the Chinese woman would not thereby acquire United States citizenship, though their children would follow the nationality of the father." In some states it is made easier for a foreigner who has married a native woman to acquire the citizenship of his wife.68

67

By the act of March 2, 1907 (U. S. Comp. St. Supp. 1909, p. 439), an American woman who marries a foreigner takes his nationality. On the termination of the marital relation, if abroad, she may by registering before a United States consul within one year resume her American citizenship, or on returning to reside, or if residing in the United States, American citizenship is resumed by continuing to reside therein.

By the same act a foreign woman who acquires American nationality by marriage to an American citizen retains the same after termination of the marital relation, if she continues to reside in the United States and does not formally renounce the same, or if residing abroad she may retain United States

order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court.

"Sixth. When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this act, be naturalized without making any declaration of intention."

34 Stat. 596 (U. S. Comp. St. Supp. 1909, p. 478). 66 "Any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation." Act March 2, 1907, § 4 (U. S. Comp. St. Supp. 1909, p. 439). Whenever a foreign woman marries an American and is abroad when the marital relation is terminated, she must register as an American citizen before an American consul within one year.

67 Rev. St. § 1994 (U. S. Comp. St. 1901, p. 1268): "Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen."

68 Belgium, Law of Aug. 6, 1881; France, Law of June 26, 1889. WILS. INT.L.-9