even made this construction applicable to the minor children of returned naturalized citizens who resided in Germany over two years, notwithstanding the birth of such children in the United States. When such minor children reached the military age, they were called upon to perform military service. As this gave rise to vigorous remonstrance by the United States, which was not successful in affording relief in all cases, Germany, with a view to avoid the unpleasant situation. which developed, adopted the expedient of expelling such minor children from the country, instead of requiring military service.

Again, while the treaties insure the immunity from military service of naturalized citizens of German origin who emigrated before they were seventeen years old, the German government, nevertheless, claims and exercises the right of expelling such persons on the presumption that they left Germany in order to evade military service, and that their permanent residence in Germany is contrary to the public welfare. The United States has unsuccessfully remonstrated against this practice of expulsion.1

Inasmuch as Alsace-Lorraine became a part of Germany since our naturalization treaties with the other German States were negotiated, American citizens, natives of that province, may be held liable to military service or fine for evasion, on return, notwithstanding their naturalization. Such persons are informed 2 that they may be subjected to inconvenience and possible detention by the German authorities if they return without having sought and obtained permission to do so from the imperial Governor at Strassburg. Germany has never admitted the somewhat specious argument of the United States that the Bancroft treaties covered Alsace-Lorraine and thus far a new treaty specifically including that province has not yet been negotiated.3

The Austro-Hungarian treaty contains no provision by which a

1 The diplomatic correspondence relating to the practice of expulsion of naturalized citizens from Germany is set out at considerable length in Moore's Dig. III, § 393. The position of the returning German is briefly stated in the circular notice of March 29, 1912. See also Webster, P., Citizenship, pp. 228-230, and annual volumes of For. Rel., s. V°. Germany.

2 Circular notice, March 29, 1912, Germany.

'See Moore's Dig. III, § 392; For. Rel., 1906, 648-653; 1907, I, 511.

renunciation of American naturalization is presumed from a residence. of more than two years in Austria-Hungary. Thus it has happened that many subjects of that country, after obtaining naturalization in the United States, return to their native country intending to live there permanently, and invoke their American citizenship when called upon to fulfill military duty. This abuse of naturalization papers induced the government of Austria-Hungary in 1899,1 in 1909,2 and on other occasions to suggest an amendment or abrogation of the treaty. Since 1907, there is less ground for objections to the treaty than theretofore, since by the Act of March 2, 1907, the presumption of expatriation of a naturalized citizen arises after two years' residence in the country of origin. The United States has not objected to the expulsion by Austro-Hungarian authorities of naturalized citizens who, by boasting of their immunity from service in their native communities, are considered detrimental to the public welfare.3 The United States has, however, generally demanded that the "pernicious character of the returning person should be affirmatively shown in justification of the extreme resort to expulsion." 4

§ 241. Renunciation of Naturalization.

It has been recognized from an early period of our history that naturalization may be renounced and protection forfeited by acts inconsistent with the retention of American citizenship. This fact was first prominently illustrated by the frequency with which natives. of other countries have become naturalized here for the purpose of returning to their homes or seeking a residence in third countries with the benefit of American protection. The Executive, therefore, had early to deal with the case of persons who had been naturalized in the United States, not with any real intention of permanent residence in this country, but for the purpose of availing themselves of the advantages of citizenship while evading its obligations by continuous or

1 For. Rel., 1899, pp. 79-80.

2 For. Rel., 1909, 35.

3 Moore's Dig. III, § 399. See also For. Rel., 1887, 1894 and 1900, s. V°., AustriaHungary, and supra, p. 53.

4 Mr. Hay, Sec'y of State, to Mr. Herdliska, July 9, 1901, For. Rel., 1901, p. 10; Message of President McKinley, Dec. 3, 1900, For. Rel., 1900, xvi.

prolonged residence abroad. Apart from the provisions in the few naturalization treaties that had been concluded, the Executive had, up to the Act of March 2, 1907, no guide by which to determine how great a period of foreign residence entailed a forfeiture of American naturalization and protection. The rule followed was to establish, if possible, the intent of the person to maintain his American citizenship by returning to the United States; and to determine this intent not merely residence abroad for a prolonged period was an element to be considered, but all the attendant circumstances of the residence abroad, e. g., whether it was for purposes of health, education, in representation of American business houses, or whether it indicated a complete abandonment of American citizenship.1

Evidence of the absence of an intent to return to the United States is established by various tests. By all but a few 2 of the naturalization treaties concluded by the United States, the reëstablishment of residence in the native country with the intent not to return to the United States is equivalent to a renunciation of American citizenship, and two years' residence in the native country may be regarded as evidence of an intent not to return to the United States. The only early treaty in which this two years' residence rule is declared to raise a rebuttable presumption of expatriation is the one with Ecuador, but the United States has regarded the residence merely as a presumption, as a rule of evidence, in the case of all the other treaties in which the provision as to two years' residence is found.3 The German states, however, appear to have considered it as a conclusive rule, and declared the American citizenship forfeited by mere residence, without affording any opportunity to show an intent to return. In the more recent treaties of the United States, which include treaties with several of the Latin-American states, it has been expressly declared that the

1 These questions will be considered more fully under the head of expatriation, infra, § 324 et seq. For the practice in the matter of renunciation of naturalization prior to 1906, see Moore's Dig. III, §§ 470–474.

2 Those with Belgium, Baden, Austria-Hungary and Great Britain are the exceptions.

3 I. e., with the North-German Union, Hesse, Würtemberg, Bavaria, Denmark, Norway and Sweden. See the comparison of the treaties as made by Webster, P., op. cit., 175-176, and Secretary Bayard's view as expressed in an instruction to Mr. Cox, Nov. 28, 1885, For. Rel., 1885, pp. 885, 889.

presumption may be rebutted by evidence to the contrary. Moreover, it is to be noted that such foreign residence does not repatriate the naturalized citizen in his native land,' but merely raises a presumption that his American naturalization has been renounced.

In the case of all countries, in order to justify diplomatic protection or the issuance of a passport, it must be shown that there is in good faith an intention to return to the United States. This has been the rule before and after the Act of 1907. Registration is one of the best methods of manifesting the necessary intent to return. Evidence of the absence of an intent to return, prior to 1907, was in many cases difficult to secure. Of course foreign naturalization or taking preliminary steps thereto, voluntary entrance into the civil or military service of another government, express renunciation or acts amounting thereto are clearly to be regarded as evidence of the absence of an intent to return. Usually, however, the intent has had to be inferred from various attendant circumstances and in weighing these, prolonged residence abroad has been perhaps more decisive than any other single factor.?

§ 242. Act of March 2, 1907.

Under the new rule established by the Act of March 2, 1907, when a naturalized citizen leaves this country instead of residing in it, two years' residence in the country of his origin or five years' residence in any other country creates a presumption of renunciation of the citizenship acquired here, and unless that presumption is rebutted by showing some special and temporary reason for the change of resi

1 See, however, the convention signed at Rio de Janeiro by various American states, August 13, 1906, which the United States ratified January 13, 1908. Treaty series, 575. It is there provided that "If a citizen, a native of any of the countries signing the present convention, and naturalized in another, shall again take up his residence in his native country without the intention of returning to the country in which he has been naturalized, he will be considered as having reassumed his original citizenship, and as having renounced the citizenship acquired by the said naturalization." An account of the countries which have ratified the Convention and its status in various other countries is printed in 5 R. D. I. privé (1911), 472–473. See the Venezuelan law of May 24, 1913, § 7.

2 Many cases in which long residence abroad has been held to create a presumption of renunciation of citizenship may be found in Moore's Dig. III, §§ 470, 471, and 475.

dence, the obligation of protection by the United States is deemed to be ended. The presumption may be overcome by showing that the person concerned is residing abroad principally as a representative of American trade and commerce, or that he is residing abroad for health or education, and in all these cases intends to return to the United States permanently to reside, or that he has been prevented by some unforeseen and controlling exigency from returning and intends to return upon the removal of the preventing cause.1

The meaning of the statute was for some time in doubt. It is now agreed, however, that it is intended to furnish a definite rule for determining when protection shall be withdrawn from naturalized citizens residing abroad, and that the presumption as to expatriation which is raised by the foreign residence never becomes conclusive, but is rebutted by a voluntary return to this country to reside permanently.2 The Act for the first time supplies a clear statutory sanction for the withdrawal of protection from that large class of false citizens who acquire American citizenship not with the intention to reside in the United States and assume the duties of citizenship, but for the purpose of residing abroad and using their American naturalization as a cloak to escape the performance of obligations in their native or other countries.

DOMICIL AS CONFERRING NATIONAL CHARACTER

§ 243. Domicil and Nationality.

It has been observed that in the period of history when people were principally attached to the soil, before nations and nationality in their modern sense became distinct political and legal concepts, domicil, or the permanent home, was the test and criterion of status, civil and political. With the rise of the modern state in Europe, however, nationality became the test of civil and political status. This rule 1 Circular of April 19, 1907, Expatriation, pp. 2-3, For. Rel., 1907, I, 3.

2 Gossin's case, 28 Op. Atty. Gen. 504, For. Rel., 1910, 420. Department of State circular, December 22, 1910. Where the return is involuntary, as by deportation from abroad, the presumption is not rebutted. Akulin's case in Russia, Op. Atty. Gen., July 3, 1914. The statute (§ 2) is not retroactive, Department circular, July 21, 1910. See a valuable article by Richard Flournoy, Jr., Chief of the Bureau of Citizenship, Department of State, 8 A. J. I. L. (1914), 477, 481-484.

'Supra, p. 24.