duties of citizenship to their national state and relying upon their alienage to escape civic burdens in the state of residence. These persons often marry abroad, engage in business, and identify themselves almost completely with the people among whom they reside; yet in time of war or revolution or trouble, they assert their alienage, escape military service, war contributions and other civic obligations, and for injuries they may sustain claim indemnities through diplomatic channels.1 It has already been observed that several countries of Europe consider departure from the country without an intent to return or for ten years as an act of expatriation.2 A somewhat anomalous situation therefore confronts the nationals of such countries who, coming to the United States, declare their intention of becoming citizens. Having presumably done all in their power to sever the tie which bound them to their own country, they are nevertheless not yet citizens of the United States. Cockburn emphatically considers that such persons during the probationary period have no claim to the protection of their original nationality. The United States in this respect has apparently shared the views of those publicists who apply to nationality the principles of the law of domicil by holding that the old nationality is not put off until the new one is acquired. Nevertheless, as has been noted, the Act of 1907 provided for the extension of a limited right of protection to persons who have declared their intention to become citizens of the United States.5

While it is universally admitted that a citizen residing abroad owes what is inaccurately designated as a local or temporary allegiance to the state of residence, it is also evident that a clear distinction is and should be made between citizens temporarily and citizens permanently resident abroad."

1 See, e. g., Lisboa, Les fonctions diplomatiques, p. 190.

2 Supra, p. 689.

3 Cockburn, Nationality, 202-203. See also Mr. Ashton's argument on citizenship and domicil, before U. S.-Mexican commission of 1868. Moore's Arb. 2701. 4 Section 1. Supra, p. 501.

'Dept. of State rules governing the granting and issuing of passports to such persons, November 14, 1913.

6

Supra, p. 94.

'Phillimore, II, 6. Supra, p. 91. Tunstall's case, in which Mr. Bayard applied

For purposes of discussion, the effect of long-continued residence abroad upon the right to diplomatic protection in the case of native citizens and of naturalized citizens will be considered separately. The general effect of permanent domicil upon the alien's legal position in the state of residence has already been discussed.1

It may be here said that the Department of State and international commissions have taken the view that it is for the protecting state to determine the effect of long residence abroad upon the right of diplomatic protection. Thus, notwithstanding the fact that by the local law of the state of residence the alien is considered to have acquired citizenship in that state or abandoned his former allegiance, such determination is not binding upon his national state nor will it serve to deprive that state of its right to protect him. Such a result depends upon the will of his home state.2

$327. The Case of Native Citizens.

The Department of State's construction of the effect on expatriation of the protracted residence abroad of a native citizen has not always been consistent. Secretary of State Evarts held that continued residence abroad does not amount to expatriation, unless the citizen

the rule of permanent residence to deny the right of Great Britain to protect a British subject permanently resident in the United States. For. Rel., 1885, 459. At least, so far as the use of the local judicial remedies was concerned, Mr. Bayard considered him as identical with a citizen. Asst. Atty. Gen. Hoyt in For. Rel., 1898, 108; Sec'y Seward in case of Panama Riot claims, Naturalization Report, Appendix 64. Webster's earlier view in Thrasher's case to the effect that domiciliation in Cuba deprived Thrasher of his American citizenship and right to protection (S. Ex. Doc. 10, 32nd Cong., 1st sess.) was, on fuller information, subsequently changed. Moore's Dig. III, 719-721, §§ 488-489.

1 Supra, § 40.

2 Lynn (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2569, 2570. See also as to effect of purchasing real estate in Mexico, cases in Moore's Arb. 2468-2482. This conclusion is only partially shared by Mr. Ashton in his abie argument on citizenship and domicil before the U. S.-Mexican commission of 1868. If the local state confers citizenship by reason of domicil, the alien would, said Mr. Ashton, forfeit his original citizenship and right to national protection. Moore's Arb. 2696, 2700. Whatever may be the merits of this view, it does not appear to have the unreserved support of the United States. Mr. Ashton's point was not directly involved in the question then under discussion.

performs acts inconsistent with his American nationality and consistent only with the formal acquirement of another nationality.1

3

On the other hand, many secretaries of State construed the effect of residence abroad without an intent to return to the United States as a severance of that mutual relation of protection and allegiance which lies at the foundation of citizenship, and withdrew American protection from citizens so situated.2 Secretary Marcy considered such permanent residence abroad as an abandonment of citizenship and contended that the rule that trade domicil in time of war confers national character should be extended in time of peace so as to include citizens domiciled abroad. Secretary Fish in a report of August 25, 1873, expressed an opinion which was adopted by Secretary Hay and Secretary Root as a correct rule: 5

"When a person who has attained his majority removes to another country and settles himself there, he is stamped with the national character of his new domicil; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period, and the presumption of law with respect to residence in a foreign country, especially if it be protracted, is that the party is there animo manendi, and it lies upon him to explain it."

These rigorous views have not prevailed. The rule more recently applied is that the mere fact that a native citizen (i. e., a citizen of the United States by birth) resides abroad, no matter for how long a time, is not sufficient of itself to deprive him of the diplomatic protection of the United States. The important fact to determine in each case is whether the citizen has manifested an intention not to return to the United States and assume the duties of citizenship. Upon evidence of this fact, the right of protection is withdrawn.

1 Mr. Evarts, Sec'y of State, to Mr. Fish, Oct. 19, 1880 (Rau's case), For. Rel., 1880, 960.

2 Extracts from instructions of Secretaries Calhoun, Webster, Marcy, Seward, Fish, and others, Moore's Dig. III, 758 et seq. It is admitted by publicists that whatever its relation to citizenship, permanent domicil abroad seriously affects the right to diplomatic protection. Phillimore, II, 6; Hall, 277.

3 Mr. Marcy to Mr. Kinney, Feb. 4, 1855, Moore's Dig. III, 759. See also Mr. Calhoun to Mr. Fairchild, Dec. 9, 1844, ibid. 758.

4 Mr. Marcy to Mr. Clay, May 24, 1855, ibid. 760.

5 Circular of March 27, 1899 (Hay); Circular of April 19, 1907 (Root).

6 Sec'y Fish to the President, Aug. 25, 1873, For. Rel., 1873, II, 1186.

Interest lies then in establishing what is the manifestation of an intent not to return to the United States and perform the duties of citizenship. Long continued residence and the absence of any indication of intention to return,1 or in addition, engaging in business abroad, marrying there, and identification with the country of residence,2 or the purchase and cultivation of land abroad 3 raise a presumption that a citizen has practically abandoned his allegiance to his native country and with it the right to claim protection from the government from which he has alienated himself and withheld his support.1

Besides prolonged residence abroad, the failure to contribute to the support of the government by the payment of taxes was in Secretary Fish's administration made an important criterion in determining whether a citizen had abandoned his right to American protection.5 But this test, like the property test, is not and has never been a good one. Under a recent ruling of the Department of State, evidence of the payment of the income tax under the Act of October 3, 1913, will not alone overcome a presumption of expatriation which may have arisen, although it will be considered in connection with other evidence in determining the question of intent to return to this country or the right to the continued protection of the United States.

The fact that the American owner of a registered vessel resides abroad has been held to suspend the benefit of American registry during such foreign residence. The same suspension of the privileges

1 Hepburn's case, residence of 35 years in Haiti; Allen's case, residence of 56 years in Haiti; Robinson's case, residence of 38 years in Mexico; Rulings of Sec'y of State Fish, Moore's Dig. III, 761–762; Robinson, however, appeared before international commissions as an American citizen, Moore's Arb. 3038, 3410; 33 years' residence in Scotland, Sec'y Olney to Mr. Bendit, Moore's Dig. III, 766.

2 Morris' case, Mr. Gresham to Mr. Smith, Sept. 1, 1893, Moore's Dig. III, 765; Webster, P., Citizenship, 169, 303; Sec'y Bayard to Min. to Switzerland, Oct. 12, 1887, For. Rel., 1887, 1073.

Sec'y Fish to Mr. Williamson, March 16, 1875, Moore's Dig. III, 765; Burt's case, Sec'y Fish to Mr. Hackett, June 12, 1873, ibid. 774. (It was later shown that Mr. Burt's absence was due to reasons of health.) The Venus, 8 Cranch, 253, 281.

4 Mr. Bayard to Sec'y of State Gresham, For. Rel., 1893, 327-328; Sec'y of State Hay to Mr. Porter, Jan. 17, 1902, For. Rel., 1902, 407-408; American Passport, 210. 5 Quotations from Sec'y Fish's instructions in Webster, P., op. cit., 165–166. 6 Circular March 18, 1914 and infra, p. 706.

7 Wirt, Atty. Gen. (1821), in 1 Op. Atty. Gen. 523.

of American registry has been held to follow the employment of an American vessel in foreign coastwise trade. Where the owner of such a vessel was domiciled in a country which by special license extended the privileges of its coastwise trade to the vessel, Secretary of State Seward held that the protection of the United States during such employment was waived.1

§ 328. Practice under the Amended Rules of 1907 and the Circular Instruction of July 26, 1910.

The recent statute of 1907 and the rules of the Department of State issued thereunder, particularly regarding the registration of American citizens resident abroad,2 have vastly increased the number of cases in which the Department has been required to pass upon the effect of residence abroad upon the right to protection. The same general principles govern applications for registration and for passports. In the circular governing registration it is provided that the certificate of registration shall not be issued unless "it is clearly shown that the residence abroad has not assumed a permanent character." In paragraph 4 of the rules governing the granting and issuing of passports,3 it is still provided that the applicant must not only state that he intends to return to this country, but within what length of time, although this latter requirement does not appear ever to have been rigidly enforced. How long the applicant could remain abroad without losing his right to receive a passport depended, until very recently, upon his intention of returning, which was determined by the circumstances of his business and social relations. But if his absence was to be permanent, he forfeited his right to receive a passport.*

1 Mr. Seward, Sec'y of State, to Mr. Sullivan, July 16, 1867, Dipl. Cor., 1868, II, 1016, Dec. 4, 1867, Moore's Dig. II, 1072. Yet when this case subsequently went to arbitration (the Montijo, (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421) the Umpire held that the claimants were not domiciled in Colombia, and added (as dictum) that even if so domiciled, the "United States would still have the right, under certain circumstances, to extend to them its protection."

2 Act of March 2, 1907, §§ 3, 4, 6, 7; Consular Regulations, § 172, as amended, Circular Instruction, Expatriation, April 19, 1907, For. Rel., 1907, 3.

3 Issued by President Wilson, January 12, 1915.

4 The American passport, 203. For a time between 1908 and 1910 the Department required native citizens who resided in a foreign country over ten years to submit