¹ “ The report comprises a statement presented by M. Rundstein and approved by M. de Magalhaes (including a preliminary draft of a convention), a supplementary note by M. Rundstein, observations by M. Schiicking and a reply by M. Rundstein, and, finally, the text of the preliminary draft of a convention as amended by M. Rundstein in consequence of the discussions which took place in the Committee of Experts.” All printed in Special Supplement to this Jotjhn al for July, 1926, pp. 21-61.

² “ For the present, it is believed that the most feasibl measure will be the adoption of a multilateral convention providing for the termination of the status of dual nationality at the time when the persons concerned attain the age of majority, or, perhaps, one year thereafter.” R. W. Flournoy, Jr., Proceedings, American Society of International Law, Nineteenth Annual Meeting, 1925, p. 77.

³ In view of the provisions of the Fourteenth Amendment to the Constitution of the United States 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,” and in view also of the assertions made by the Act of Congress of February 2, 1855, with respect to children born outside of the United States whose fathers were at the time of their birth citizens thereof, our own country is hardly in a position to impute arbitrariness to states which invoke either or both theories, or to advocate the adoption of a plan which deprives a state of the right to do so. Diplomatic controversies arising from conflicting claims respecting the nationality of a child during his minority are relatively infrequent. In such cases the United States respects the equities of the state claiming the child as its own by right of birth under the jus sanguinis or the jus soli so long as he continues to reside within its territory. Moreover, it is inclined to the opinion that during the period of minority changes of residence or domicile effected by the parents should not serve to deprive the child of the inchoate right to take appropriate steps, upon attaining his majority, to clothe himself with the single nationality of his choice.

⁴ An objection of the same general character, although of a possibly less practical significance,might be raised with respect to Article III, which provides that “A child of parents who are unknown or whose nationality cannot be ascertained acquires the nationality of the state in which it was born or found when it cannot claim another nationality in right of birth, proof of such other nationality being admissible under the law in force at the place where it was found or born.”These provisions appear to limit the free application of the jus soli. 6

⁵ M. Rundsteins report manifests a frank disclaimer of such a design.

⁶ See“ Suggestions concerning an International Code on the Law of Nationality,” Yale Law Journal, June, 1926, Vol. XXXV, 939; also address by the same writer before the American Society o f International Law, April, 1925, Proceedings, Nineteenth Annual Meeting, 69. The writer acknowledges his indebtedness to Mr. Flournoy for numerous valuable suggestions set forth in these papers, of which free use is here made.

⁷ In Anglo-American jurisprudence that term has reference to a conclusion of law derived from certain factors, of which an important one is the state of mind of the individual concerned.It might well be urged that the fact of actual residence should, regardless of the design of that individual, suffice to produce the termination of an adverse claim.

⁸ See Act of July 27, 1868, 15 Stat. 223, as embodied in Rev. Stats. Sections 1999, 2000, 2001. See in this connection, “ Naturalization and Loss of Nationality” by Hackworth, Green H, Proceedings, American Society of International Law, Nineteenth Annual Meeting, 1925, p. 59.Google Scholar

⁹ “The doctrine embodied in the Act of 1868 is that naturalization invests the individual with a new and single allegiance, and by consequence absolves him from the obligations of the old. The position of governments and of publicists who deny the American contention is that naturalization merely adds a new allegiance to the old, so that the individual becomes subject to a dual allegiance, and may be held to all the obligations o f his original citizenship if he returns to his native country. The doctrine o f dual allegiance is, in a word, the precise test, the acceptance of which distinguishes those who reject the doctrine of voluntary expatriation from those who support it.”(John Bassett Moore, Principles of American Diplomacy, 1918, p. 294.)

¹⁰ The article is as follows: “ A release from allegiance (permit of expatriation) shall produce loss of the original nationality only at the moment when naturalization is actually obtained in one of the contracting states. Such release shall become null and void if the naturalization is not actually granted within a period to be determined.”

¹¹ See the views of Attorney General Black, concerning the case of Christian Ernst, 9 Opinions Attys. Gen., 356, Moore, Digest, III, 573.

¹² Declared Secretary Bayard in the course of a communication to Mr. Lothrop, Minister to Russia, Feb. 18,1887: “ The Department is far from questioning the right o f His Imperial Majesty to refuse to permit his subjects to emigrate. This is an incident of territorial sovereignty recognized by the law of nations, but can only be exercised within the territory of Russia. . . . His Imperial Majesty may prevent Russians from coming to the United States, but when they have come, and have acquired American citizenship they are entitled to the privileges conferred by the article (10 of the treaty of commerce of Dec. 18, 1832).”(For. Rel. 1887, 948, Moore, Digest, III, 633.)

¹³ Lack of space forbids the discussion of the form which it is believed such a proposal might well assume. Mr. R. W. Flournoy, Jr., has made interesting suggestions in his paper in the Yale Law Journal for June, 1926, Vol. X XXV, 939, 943-946.

¹⁴ It may be observed in this connection that the withholding by a state of a claim to a child as a national who was born within its territory to a foreign father accredited as a diplomatic officer to itself does not necessarily involve recourse to a fiction such as one to the effect that the child is to be deemed to have been bom in the territory of the state of which his father is a national. It is believed that the withholding of the claim is to be explained on simpler grounds. It is due to the consensus of opinion that the diplomatic character of the father cuts off the right o f the state within whose territory the birth occurred to invoke theprojus soli. The law of nations denies to that state that privilege by depriving it of jurisdiction for purposes of nationality over one who was in fact born within and remains within its territory.

¹⁵ Cf. Instruction to American Diplomatic and Consular Officers, of April 12, 1924, concerning the “ Mention of Alien Wives in Husband's American Passports.”