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and any additional facts concerning residence, marriage, and children should be noted in the register, but the full registration having been made once need not be repeated on each subsequent registration." 1 "ELIHU ROOT"

The circular of November 30, 1907, instructs consuls specifically to apply to applicants for registration the rules of the circular of April 19, 1907 entitled "Expatriation," 2 which embodies the provisions of the Act of March 2, 1907 and certain rules of evidence for overcoming the presumption of expatriation. Consuls are informed that the Department expects them "to use their best endeavors to secure the registration of all American residents in their districts," although the registration of travellers and brief sojourners is not, under ordinary circumstances, contemplated. The supplementary circular instruction of March 2, 1908, informs consuls that applications for registration need not in ordinary cases be made in the form of an affidavit. A further circular of June 21, 1909 requires the consul to insert in the register and the certificate "the local address of the person registering and the name and address of the nearest relative in America with whom it would be necessary to communicate in the event of any serious accident to or death of the person registered." In a circular instruction of December 21, 1914, diplomatic and consular officers are informed that in the issuance of emergency passports and the renewal of Departmental passports, consular registration certificates should not be accepted as conclusive evidence of citizenship.

Attention has already been given to the circulars of April 19, 1907 regarding the registration of women who desire to resume or retain American citizenship and the registration of children of American citizens born abroad.5 The circular of January 18, 1908 authorizes consuls to enter the name of a Japanese wife with the registration of her husband, for the certificate of registration merely states that

'Circular instruction, Registration of American citizens, April 19, 1907, For. Rel., 1907, I, 6-7.

'Infra, § 319.

'Circular Instruction, "Applications for registration," March 2, 1908. For. Rel., 1907, I, 10, supra, §§ 265, 267.

'Ibid., 1907, I, 9, supra, § 271.

the head of the family, to whom it is issued, is an American citizen, and does not state specifically that his wife and children are citizens.1

A circular of December 9, 1911 authorizes consular officers to register citizens of Porto Rico and the Philippines, under the terms of the Acts of April 12, 1900 and July 1, 1902, respectively. The citizens in question are "required to produce sworn applications as to birth and residence, accompanied by the best documentary evidence procurable that they were Spanish subjects at the time of the annexation of the islands," and their statements must be supported "by affidavits of two credible persons, as in applications for insular passports." Duplicate certificates of registration are not to be issued to persons claiming citizenship of Porto Rico or the Philippines until their applications have been approved by the Department.2

The circular of April 19, 1907 provides that registration shall be made before principal consular officers, but inasmuch as registration is optional and not mandatory, it is possible that registration at legations or before diplomatic agents would serve the same purposes.

The provisions of local legislation in various countries requiring foreigners to be registered or matriculated in the office of a local authority as a condition precedent to the enjoyment of certain domestic privileges have been recognized as valid by the United States. A similar provision debarring foreigners, not matriculated, from the diplomatic protection of their own government has been vigorously opposed by the United States, on the ground that the "evidence of the foreign status of an individual consists of the facts as they exist, or of the authentic certification of his own government, as in the form of a passport"; it does not originate in the compliance with the munici pal statute of a foreign country.3

1 Circular of January 18, 1908, "Issuing passports to or registering Japanese wives of American citizens and their children born in Japan."

2 Circular of December 9, 1911, "Registration of citizens of Porto Rico and the Philippine Islands."

Mr. Olney, Sec'y of State, to Mr. Dupuy de Lôme, Feb. 17, 1896, For. Rel., 1896, 677. These attempted limitations upon diplomatic protection found in the legislation of various Latin-American countries are considered at greater length in Chapter VII, infra, § 394.

OTHER CONDITIONS

§ 314. Fulfillment of Duties of Citizenship.

Other conditions imposed by governments upon an applicant for diplomatic protection contemplate a fulfillment of his duties of allegiance and an absence of all censurable conduct justifying the state in withholding or withdrawing its protection. Several European governments, like France, for example, forbid their diplomatic and consular representatives to protect citizens who have failed to submit to the obligations of military service. In the following chapters, 2 attention will be directed toward those acts of the claimant which have operated as a forfeiture of the right to diplomatic protection.

1 Circular of June 16, 1873, renewed by that of Nov. 5, 1905; Pillaut, Manuel de droit consulaire, Paris, 1910, § 139.

2 Infra, §§ 315 et seq.

CHAPTER II

FORFEITURE OF PROTECTION BY ACT OF CITIZEN. EXPATRIATION

§ 315. Recognition as an Individual Right. History in United States. Expatriation, or the voluntary renunciation or abandonment of citizenship and allegiance, is obviously the most direct method by which diplomatic protection may be forfeited. As in the case of emigration,1 it is only within the last fifty years that states have come to recognize that the feudal theory of indissoluble allegiance is an anachronism, and that the individual has the right to change his domicil and nationality, although the reciprocity of obligation between the individual and the state of which he is a member still requires, in many states, the consent of the government to a recognition of the change of allegiance.2

1 Bar, L. von, Theory and practice of private international law, Edinburgh, 1892, pp. 145-147.

2 The countries of Europe in which military service is compulsory do not recognize, except so far as they have become bound by treaty, the expatriation of their subjects, without the consent of the state or the prior performance of military duty. Supra, § 238. Even the naturalization treaties recognizing expatriation do not relieve the expatriated person from obligations incurred prior to emigration, should he return to his native country. The following countries of Europe have not concluded naturalization treaties with the U. S. recognizing the expatriation of their subjects: France, Italy, Switzerland, The Netherlands, Roumania, Servia, Spain, Russia and Turkey, Supra, § 239. Russia and Turkey still maintain the doctrine of indelible allegiance, and deny the right of voluntary expatriation, except in the case of the marriage of native women to aliens. In practically all the other countries of Europe, the consent of the state is obtainable upon proof of the fulfillment of military obligations. The various attitudes of governments on the question of expatriation are set forth in H. Doc. 326, 59th Cong., 2nd sess., 12 and are discussed supra, p. 544 and infra, p. 684.

Publicists now universally admit that a citizen has the general right of expatriation in time of peace, and in the absence of prohibition or qualification, the assent of the government is implied. E. g., Bluntschli, art. 372; Bar, § 60; Fiore, 4th ed.,

RECOGNITION AS AN INDIVIDUAL RIGHT. HISTORY IN UNITED STATES

675

In the development of the policy of the United States the doctrine of expatriation has experienced numerous vicissitudes. The courts of the United States, prior to 1868,2 generally accepted the common. law doctrine of perpetual allegiance, Chancellor Kent laying down the rule "that a citizen cannot renounce his allegiance to the United States without the permission of government." 3 While the views of the executive department of the government were by no means consistent, the opposite doctrine, namely, the freedom of expatriation, was generally maintained. In this connection, it must be remembered that the question was considered by the executive practically always from the point of view of a foreigner abjuring his native allegiance to become a citizen of the United States. In some cases the United States disavowed any intention to protect a naturalized citizen in his native country when the latter, by its municipal law, still considered him as its subject. Buchanan during the years 1845-1848 was the first Secretary of State to announce the unqualified right of expatriation, namely, that naturalization clothes the individual with a new allegiance and releases him from the obligation of the old; 5 and after art. 653; Bonfils, § 417; Stoerk, in 2 R. G. D. I. P. (1895), 287; Halleck, 1908 ed., I, ch. XII, § 29.

1 On the American law governing expatriation see Van Dyne, Citizenship, Rochester, 1904, §§ 89-99; Van Dyne, Naturalization, Washington, 1907, pp. 333-362; Moore's Dig. III, §§ 431-440; 466-473; Moore, J. B., American diplomacy, New York, 1905, chap. VII; Report of Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 12-13, 23-28; 160-168; Opinions of executive officers, and appendixes, For. Rel., 1873, II, 1185 et seq.

2 Inglis v. Trustees of the Sailor's Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 Pet. 242, 246; The Santissima Trinidad, 7 Wheat. 283. Contra, Alsberry v. Hawkins, 9 Dana (Ky.), 178. These and some other cases are considered in Comitis v. Parkerson, 56 Fed. 556, 558-561. See also Moore's Dig. III, § 432, and H. Doc. 326, 59th Cong., 2nd sess., 160-161.

32 Kent's Commentaries, marg. 49. See also the views of Story set forth in Moore, American diplomacy, 171-172. It was recognized by Kent and by the Supreme Court in Shanks v. Dupont that this theory of perpetual allegiance was inconsistent with our naturalization laws, but it was said that only Congress could correct the inconsistency.

See Mr. Wheaton's celebrated declaration in Knoche's case in Prussia, July 24, 1840, Moore's Dig. III, 564 and supra, p. 542. See also Sec'y of State Webster, Everett and Marcy, Moore's Dig. III, § 436. See also Cushing, Atty. Gen., Oct. 31, 1856, in 8 Op. 139 and Moore, American Diplomacy, 177.

'Moore's Dig. III, § 435.

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