PART II.

THE RELATIONS OF A NATION TO THE PERSONS AND PROPERTY OF THE MEMBERS

OF OTHER NATIONS.

TITLE VI. NATIONAL CHARACTER.

VII. DOMICIL.

VIII. NATIONAL JURISDICTION.

IX. DUTIES OF A NATION TO FOREIGNERS.

X. DUTIES OF FOREIGNERS TO THE NATION.

TITLE VI.

NATIONAL CHARACTER.

National character, as here treated, and as elsewhere mentioned in this Code, is that which is recognized during Peace. It may perhaps be regarded as coextensive with Allegiance, and to some extent to correspond with Jurisdiction. In questions arising out of War, national character, in the sense of belligerent or neutral, is said to be impressed on persons, according to domicil or other circumstances; but it has seemed better to use the words in this Code in their strict sense. The hostile or neutral character, which may be acquired or lost by acts aiding the enemy, without respect to any element of national character, will be the subject of provisions of the Book on WAR.

For a recent discussion of the subject of National Character of Persons, see the Transactions of British Association for the Promotion of Social Science, 1868, pp. 158, 179; Revue de Droit International, 1870, No. 1 P. 120.

The new English Law of Naturalization recognizes the principle of defeasible allegiance, &c., as expressed in Chapter XIX. See "The Naturalization Act, 1870," 33 Vict., c. 14.

CHAPTER XIX. Of Persons.

XX. Of Shipping.

"National character" defined.

247. The national character of a person is his connection with a nation, being one of its members, as explained in this Chapter.

Every person has one national character.

248. Every person has a national character.' No

person is a member of two nations at the same time;' but any nation may extend to a member of another nation, with his consent," the rights and duties of its own members, within its own jurisdiction, in addition to his own national character.

This article changes the existing rule on the subject, in that it recog nizes a national character in every person whomsoever, and declares distinctly that no person can have two national characters; but it permits each nation to extend any rights or privileges of its members to strangers, who are members of another nation, or to suspend the rights and privi leges of its own members, as provided in this Code, or by its own constitution and laws.

The existing rule may be stated as follows:

A person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a member of the nation to which he last belonged, except so far as his rights and duties within its territory, or in relation to such nation, are concerned.

Such persons are said to number many thousands in France. Heffter, (Droit International,) § 38, subd. I., note 2.

By the French law they have a French status, if domiciled there, (1 Boileux, p. 58,) even if domiciled without authority; (Id., p. 63;) but their national character is uncertain. Heffter, above. Valette, (sur Prudhon, t. 1, p. 200,) is of the opinion that if domiciled in France they are French. But this is denied by 1 Boileux, pp. 52, 62.

2. Double nationality, though tolerated in a large part of Europe, has been expressly proscribed by many Codes, as the person is required to choose, in such case, between his actual and his native domicil. Zouch, De Jure Fec, II., 2, 13, who denies the possibility of being the subject of more than one State, certainly goes too far; for it depends purely on the provisions of the laws of the States in question." Heffter, $ 59, a.

That any one should be a member of two nations at once, is inadmissible in principle." Westlake's Private International Law, p. 21, § 22. If double allegiance or national character were allowed, resulting either from birth or from operation of law, a minor should be permitted to choose a single allegiance within a reasonable time after attaining to full age, according to the law of his domicil. See Ludlam v. Ludlam, 26 New York Rep., 356. Such a declaration of alienage is now allowed by the Naturalization Act, 1870," 33 Vict., c. 14, § 4.

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3 The authorities are conflicting on this point:

No State can impose the rights and duties of citizenship upon aliens who do not choose to take them." Re Conway, 17 Wisconsin Rep., 529. "The laws of the United States determine what persons shall be regarded as citizens, irrespective of such persons' pleasure." Calais v.

Marshfield, 30 Maine Rep., 518. (See a qualification of this, in the same case, cited below.)

"The Court of Aix . . . holds, that Art. 4 of the Constitution of 1793 conferred the French character upon foreigners in certain cases fully and without any necessity on the part of the persons thus naturalized ipso facto, of manifesting their will or making any declaration of any sort, and that the only question that could be raised was as to the force of a protest to the contrary, which the foreigner might have made for the purpose of preserving his nationality." Fœlix, Droit International Pricé,1, p. 96, note (a) by M. Demangeat.

"The statutes of Anne and Geo. II., are peculiar in attaching the character of British subjects to the native-born citizens of other States, without the volition of the subject, and without requiring the condition of residence." Ex-parte Dawson, 3 Bradford's (New York) Rep., 137.

Laws of this character frequently limit to the territory the privileges conferred. [Décret, Aug. 26, 1811, Tit. 1, Art. 3; (Roger Collard Codes Franc., App., p. 46.)]

Similar laws have been passed in most of the United States; (see Lynch v. Clarke, 1 Sandford's Ch. (New York) Rep., 663;) and in some of them alien inhabitants have the electoral franchise. (Ib.)

This limitation is also applied at present where expatriation is not permitted. "The original connection is preserved, but only in the interest of the nation of which the individual was a member at the outset, without excluding, as far as relates to his adopted country, the validity of his naturalization there." Felix, Droit Intern. Privé, I., p. 57, note 1; Wilson v. Marryat, 8 Term Rep., 45.

Native-born subjects are protected as such within the territory of the nation of their birth, even though claimed by another nation as its subjects. Ainslie v. Martin, 9 Massachusetts Rep., 454.

So, it was held by KENT and his associates, that the law of Spain, which authorized a domiciled American citizen to acquire the Spanish character by taking an oath before a Spanish consul in New York, without coming within Spanish territory, could not confer upon him a right accorded only to aliens; i. e., the right to be sued in the Federal and not in the State courts. Fish v. Stoughton, 2 Johnson's Cases, (New York,) 407.

"If, by the laws of the country of their birth, children of American citizens born in such country are subjects of its government, the legisla tion of the United States will not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory. United States Consular Regulations, (1870,) p. 40, ¶ 115.

"Although the government of one country may grant to persons owing allegiance to that of another, the rights and privileges of citizenship, it is not intended to intimate that the government making such grant would thereby, and without their consent or change of domicil, become entitled to their allegiance in respect to any of their political duties or relations." Calais v. Marshfield, 30 Maine Rep., 520.

In Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters' Rep., (U_S.,) 157, STORY, J., says: The nation "may give him the privileges of a subject, but it does not follow that it can compulsorily oblige him to renounce his former allegiance."

In Marryat v. Wilson, 1 Bosanquet & Puller's Rep., 443, the court says: "Is there any general principle in the law of nations, (out of which this adoption of subject seems to have grown,) that in the parent State the adopted subject is incapable of enjoying the privileges which have been conceded by the parent State to the subjects of that State which has adopted him? I know of no such disabling principle;" which is evidently not in conflict with the above limitation.

By the British "Naturalization Act, 1870," (33 Vict., c. 14,) an alien may acquire all political and other rights, powers and privileges of a nativeborn subject, except within the limits of the State of which he was previously a subject.

Effect of marriage.

249. Except as provided in article 260, marriage does not change the national character of the wife.

Shanks v. Dupont, 3 Peters' U. S. Rep., 242.

See Article 248; and 1 Phillimore's International Law, p. 350.

Legitimate child of a member of the nation.

250. A legitimate child, wherever born, is a member of the nation of which its father at the time of its birth was a member; or, if he was not then living, of the nation of which he was at the time of his death a member,' except as provided in the next article.

This is the law in most European States, Westlake, p. 16, § 16; Fælix I., p. 54; but not in England or in the United States. However, in Ludlam v. Ludlam, 26 New York Rep., 371, the Court says: "Citizenship of the "father is that of the child, so far as the laws of the country of which "the father is a citizen are concerned." And it has been held in the United States, that the national character of the parent is of no importance, even in the case of a child born within the territory to a parent who is not, and has not taken any step towards becoming naturalized there, and who removes the child while an infant. Lynch e. Clarke, 1 Sandford's Ch. (New York) Rep., 585.

But this decision seems not to be entirely approved; Munro . Merchant, 26 Barbour's (New York) Rep., 400, 401; and probably would at the most be considered as authority only in regard to the right of succession to real property within that State.

Legitimate child of a foreigner.

251. A legitimate child, born within the jurisdiction'