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 bave 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 evi. dently 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 o. Dupont, 3 Peters U. 8. 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.

1 This is the law in most European States, Westlake, p. 16, S 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 v. Clarke, 1 Sandford's Ch. (New York) Rep., 585.

But this decision seems not to be entirely approved ; Munro 0. 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'

of a nation of which its father was not a member at the time of his death or of its birth, is a member of such nation, if its father was also born therein.”

Shipping having the national character of a nation, is deemed a part of its territory, within the meaning of this Chapter. Heffter, s 78; Vattel, Droit des Gens, Bk. I., ch. 19, § 216. Thus, persons navigating an alien ship “are ex prima facie aliens." Chalmers' Colonial Opinions, p. 652, (Am. ed. of 1858.)

• Some such limitation is necessary in order to prevent the perpetuation of a race of aliens domiciled within the territory. The restriction here proposed is that adopted in France. Fælix, Dr. Intern. Privé, I., p. 109, note ; Mourlon, (4th ed.,) 99.

Illegitimate children.

252. Except as provided in article 255, an illegitimate child is a member of the nation of which its mother is a member at the time of its birth. See Westlake, Private Int. Law, $ 18, pp. 18, 19. Effect of recognition.

253. An illegitimate child, recognized by its father, becomes a member of the nation of which he is then a member.' Such recognition has no retroactive effect.”

Felix, I., p. 55. The conflicting authorities are referred to by Boileux, I., pp. 50, 51; Mourlon, I., pp. 88, 89. • See Fælix, Dr. Int. Privé, I., p. 108. Mode of recognition.

254. The recognition mentioned in the last article must be made in the manner provided by the law of the nation to which the father then belongs, and at : time when, by the law of that nation, the child is stil a minor.

The authorities are to the effect that “the status of a person can never be modified except in conformity with his personal law;" (i. e., that of his domicil.) Damangeat's note to Fælix, Dr. Int. Privé, I., p. 98.

" It is the law of his birth-place which renders him capable of disposing of his person.” Fælir, I., p. 108, no. 41. “Majority belongs to personal status, and is, and can only be, governed by the law of the country to which the person belongs.” Mourlon, I., p. 94.

The rule stated in the article, however, is in harmony with other proposed changes, referring to the law of the nation of which the father is, and the child is to become, a member, as the test.

Illegitimate child born abroad. 255. An illegitimate child, born within the jurisdiction of a nation of which its mother is not a member at the time of its birth, is a member of such nation, if its mother was also born therein. See Westlake, Private Int. Law, $ 18, pp. 18, 19. Parents of unknown national character.

256. A child, the national character of neither of whose parents is known, is a member of the nation within whose jurisdiction it is born. If its birth-place is also unknown, such child is a member of the nation within whose jurisdiction it is first found.'

| Mourlon, I., pp. 87–92.

Presumption of membership.

257. A person actually within the jurisdiction of a nation, is presumed to be a member of such nation, until the contrary is shown.

“The law presumes that all persons who live among us are citizens of the United States, until the contrary appears by strict proof." State e. Beackmo, 6 Blackford': (Indiana) Rep., 488.

So, where the only fact is that the defendant spoke slanderous words within the territory. Lister v. Wright, 2 Hill's (New York) Rep., 320.

“I think it may be assumed as a principle, that the law of nations, without regarding the municipal regulations prescribed for his admission,

dence is prima facie evidence of national character, susceptible, how. ever, at all times, of explanation. If it be for a special purpose, and transient in its nature, it shall not destroy the original or prior national character. But if it be taken up animo manendi, with the intention of remaining, then it becomes a domicil, superadding to the original or prior character the rights and privileges as well as the disabilities and pena, ties of a citizen or subject of the country in which the residence is po tablished.” Johnson v. Merchandise, 2 Paine's U. 8. Circuit Ct. Rep.. 624, 625.

“ Another (rule) is, that a neutral or subject found residing in a foreign country is presumed to be there animo manendi ; and if a state of war should bring his national character into question, it lies upon him to esplain the circumstances of his residence." The Venus, 8 Cranch's U. S Sup. Ct. Rep., 279.

It does not seem necessary to include in these provisions the case of corporations, which are sometimes said to have the national character of the nation by virtue of whose laws they exist. It is a familiar rule that a corporation can have no legal existence beyond the territorial limits of the sovereignty which creates it.

It exists by force of the law; and where that ceases to operate and is no longer obligatory, the corporation can have no existence. It cannot migrate to another sovereignty, and can only have transactions from its home, through its agents. The Baltimore and Ohio Railroad Co. v. Glenn, 28 Maryland Rep., 287. See The Bank of Augusta v. Earle, 13 Peters' U. S. Supreme Ct. Rep., 519, Opinion of TANEY, Ch. J.

It is held, that a corporation chartered by two States, with the same capacities and powers, and intended to accomplish the same objects, exercising the same powers, and fulfilling the same duties in both States, is a distinct and separate body in each State County of Alleghany o. Cleveland & Pittsburgh R. R. Co., 51 Pennsylvania Rep., 228.

Change of national character.

258. The national character of any person may be change by expatriation and naturalization.

There are some other apparent cases of a loss of national character ; such, for instance, as the French rule, that a Frenchman accepting, without authority from his government, public functions confided to him by a foreign nation, loses the quality of Frenchman ; Code Napoleon, Art. 17 ; but these should rather be regarded as a denial of the rights or privileges of national character. In respect of the obligations or subjection of the individual, the national character should be deemed to continue until another is acquired.

Political privileges unaffected by marriage.

259. Marriage gives to the wife the privileges of the national character of her husband,' but does not deprive her of the privileges of that which she had before marriage,' except as prescribed by the next article.

11 Phillimore's Intern. Law, p. 350.

. This should seem to be the proper rule. Marriage “may change her civil rights, but it does not affect her political rights or privileges.” STORY, J., in Shanks v. Dupont, 3 Peters' U. 8. Sup. Ct. Rep., 246.

The marriage of a woman in her own country with a foreigner domiciled therein, should certainly not depationalize her. The objection of double allegiance does not preclude her enjoying the privileges. As to the effect of marriage on nationality, see Annual Register, 1868.

By the British “Naturalization Act, 1870,” (33 Vict., c. 14, $ 10,) a married woman is to be deemed a subject of the State of which her husband is for the time being a subject.

Effect of marriage and removal. 260. If before or after her marriage, the domicil of

quires by such marriage and removal the national character of her husband. .

This provision covers two classes of cases : 1. Where a woman emigrates while unmarried, and marries abroad, or in her own country, if only visiting there ; 2. Where she marries at home, and afterwards emigrates. No difference is recognized between emigration to the husband's country and emigration to another. So long as she remains in her native land, here are evident reasons for allowing her to retain her original nationality. But if an English woman marries a Frenchman, and they both emigrate to America, there is no reason for continuing to her the rights or duties of the English character.



ARTICLE 261. “ Allegiance" defined.

262. Extinguishment of allegiance.
263. Renewal of allegiance.

Allegiance" defined.

261. Allegiance is the obligation of fidelity and obedience which a person owes to the nation of which he is a member, or to its sovereign.

Extinguishment of allegiance. 262. Allegiance is extinguished, 1. By expatriation, and a formal act of renunication;

2. By discharge therefrom by the nation or sovereign entitled thereto;

3. By change of national character, in the case mentioned in article 260.

At present no formal act is required except by municipal law. "The “ fact of renunciation is to be established like other facts for which there “is no prescribed form of proof, by any evidence which will convince the “ judgment.” 9 Opinions of U. 8. Attorneys-General, (Aug. 17, 1857,) pp. 63, 64.

It has been suggested that a legal sentence of banishment from the

« ForrigeFortsett »