In the circular instruction of March 27, 1899, entitled "Passports for persons residing or sojourning abroad" it is stated that "a condition precedent to the granting of a passport is . . . that the citizenship of the applicant and his domicil in the United States and intention to return to it with the purpose of residing and performing the duties of citizenship shall be satisfactorily established.1 . . . Even where expatriation may not be established, a person who is permanently resident and domiciled outside of the United States cannot receive a passport."

After carefully considering the principles underlying the whole question of the protection of citizens abroad, the Department of State in 1910 came to the conclusion that in the case of a native American residing in a foreign country, a definite intention to resume residence in this country should not be made an absolute prerequisite to the privilege of receiving a passport or certificate of registration, or if necessary, protection by the United States. The new ruling of the Department is embodied in a circular instruction of July 26, 1910, to Diplomatic and Consular Officers, entitled "Protection of native Americans residing abroad," which may, with advantage, be quoted in part:

"In modern times there has been a vast improvement in facilities for communication and transportation between the various nations of the earth, and a corresponding increase in international travel and trade, and it has become a not unusual practice for citizens of one country to establish themselves in another country for purposes of business, without any intention of renouncing their original allegiance. Therefore, it is the Department's opinion that the acquisition of permanent foreign residence by a native citizen has not the same significance which it had in former years. It is considered that an American citizen may now have a permanent foreign residence and yet contribute, indirectly if not directly, to the wealth and strength, the prestige and general welfare of his country, so that as long as he maintains a true allegiance to this Government and is ready, if need be, to come to its defense, he may be entitled to its protection.

sworn statements as to the cause of such residence, their ties of family and property within this country, and their intention to return to the United States for permanent residence.

1 The exceptions to the rule governing loss of protection by residence abroad will be considered infra. See the instruction of Secretary Bayard to Mr. Winchester, Minister to Switzerland, October 12, 1887, For. Rel., 1887, 1073-1074.

"In each case of an American permanently residing abroad it will be necessary, before deciding as to his right to protection, to determine among other things whether he maintains an actual connection with the United States and a true allegiance thereto, or whether he has practically abandoned this country and identified himself with the political community of the land in which he resides; and while, as to questions arising in regard to registration and the issuance of passports, a lack of intention to resume residence in this country may, upon matters relating to protection as American citizens, still raise a presumption of expatriation, such presumption shall not be considered as conclusive, but the person concerned shall be given an opportunity to show that he is still a true citizen of the United States. In this connection are to be considered the cause of the foreign residence, participation in the politics of the country of residence or abstention therefrom, ties of family, business, or property maintained with this country, and, in the case of a married man, the original nationality of the wife and the mode of raising the children, and, finally, the general conduct of the person in question. It is impossible to lay down a general rule which will be applicable to every case which arises, and each case must be decided upon its peculiar merits. You will, therefore, not finally refuse a passport or registration certificate to any person belonging to the class under consideration until you shall have been authorized to do so by the Department after a full presentation of the pertinent facts."

The purpose of the circular is to furnish tests and criteria by which the great and important question, namely, whether the citizen by birth still feels and bears true allegiance to the United States, may be determined.

The payment of the income tax under the Act of October 3, 1913, will also "be duly considered in deciding the question of the right to the continued protection of this government in cases of native citizens who have resided abroad for a period so long that the natural presumption may be held to have arisen that they have abandoned this country." 1

While these rulings modify the former rigid rule that passports and registration were to be refused to Americans who were "permanently resident and domiciled outside of the United States," the Department will probably continue, under the rulings, to decline to extend these evidences of citizenship and protection to that considerable class of renegade Americans established in foreign countries, especially in Latin-America, who have no loyalty for the United States, 1 Circular instruction "Payment of the income tax," etc., March 18, 1914.

who fail to contribute in any way to its welfare, who meddle in the politics of the countries in which they live, never approaching our diplomatic or consular representatives until they get into trouble, and who, far from increasing the prestige of the United States abroad, merely serve to bring this country into bad odor with foreign governments.

1

It has already been observed that under a uniform rule of the Department, given statutory sanction by the Act of March 2, 1907, a passport and protection are denied to the native citizen who leaves this country at an early age and continues to reside abroad after attaining majority without electing American citizenship.

§ 329. Decisions of International Tribunals of Arbitration.

The decisions of arbitral commissions have been practically uniform in concluding that domicil or residence in a foreign country does not denationalize, unless there be a distinct law to that effect either in the claimant or defendant country. Some brilliant arguments have been made 2 to show that in an international sense the term "citizens" embodied in a protocol of arbitration, was not to be taken in its strict meaning in municipal law as denoting paramount allegiance to a sovereign, but in a so-called larger sense which embraced persons who by permanent domicil were within the protection of the government under which they resided. Such an argument, it is believed, is founded upon a failure to draw a distinction between belligerent domicil or trade domicil in time of war, in which the person's rights and liabilities flow from his domicil, and ordinary civil domicil in time of peace. It has already been observed that international commissions have frequently considered belligerent domicil as conferring national character under the terms of protocols of arbitration and as a principle of international law, but in the absence of an express agreement it has been the general rule of international commissions, so far as relates

1 Supra, p. 584, particularly Mr. Olney, Sec'y of State, to Mr. von Reichenau, November 20, 1896, For. Rel., 1897, 182.

2 See, e. g., Hale's and Hoar's arguments before British-American Commission under protocol of May 8, 1871, paraphrased in Moore's Arb. 2722-2725, and in Hale's Report, 11-13.

3 Supra, § 246.

to the question of jurisdiction, to consider the national character of the party to be determined by his paramount allegiance, irrespective of the fact of domicil.1

The few decisions of arbitral commissions which have predicated a loss of citizenship or protection upon long-continued residence abroad were based either upon the law of the claimant country according to which such a result followed long residence abroad, or upon exceptional grounds.2 The British-American Commission of 1853 had in a number of cases, e. g., Laurent and Uhde, considered that the domicil in Mexico of British subjects conferred upon them Mexican citizenship and deprived them of standing as British subjects.

This view

1 Belcher (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 2695; Fretz (U. S.) v. Colombia, Feb. 10, 1864 (decision of Sir Frederick Bruce, umpire, Moore's Arb. 2560; Miller (U. S.) v. Mexico, July 4, 1868, ibid. 2706 (see the able argument of J. Hubley Ashton, ibid. 2696–2706); Eigendorff, ibid. 2717 (temporary absence); Bowen, ibid. 2482; Elliott, ibid. 2481 and cases cited 2482 (long residence and purchase of real estate in Mexico did not forfeit American citizenship or protection). See also supra, p. 492; "Carta de seguridad" as Chilean involved no forfeiture of American citizenship; Pradel (U. S.) v. Mexico, ibid. 2543. See also Robinson, ibid. 3410 (38 years' residence in Mexico); Wilkinson, ibid. 2720; Barclay (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2721, 2727, Hale's Rep. 11-14; Crutchett, ibid., Hale's Rep. 14; Lynn (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2569-2570 (48 years' residence in Cuba, acquisition of real estate and marriage there); Machado (U. S.) v. Spain, ibid. 2567 (carta de domicilio in Cuba held not to deprive claimant of right to appear before commission as American citizen); Portuondo, ibid. 2565 (no proof of intention to abandon U. S. or renounce U. S. citizenship); San Pedro, ibid. 2568; Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421; La Fontaine, 210, 212 (citizenship not lost by domicil abroad "in cases of flagrant violation of justice," and U. S. presentation of claim held proof that U. S. considered claimants citizens). See also Moore's Dig. II, 1072. Perrenin (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2572-2574, Boutwell's Rep. 103 (notwithstanding Art. 17 of French Civil Code by which claimant had lost his French citizenship through long residence in U. S. without intention to return to France, commission admitted him as French citizen, inasmuch as he had not acquired U. S. citizenship. Perhaps the decision is explainable on the ground that it was not absolutely certain that the claimant was without intent to return to France). See Lebret (France) v. U. S., Boutwell's Rep. 105; Faber (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 630.

2 In Thompson (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2668, residence plus the acquisition of real estate which involved an oath of allegiance to Texas, plus expressed intention to become citizen of Mexico deprived claimant of title to American protection.

3 Supra, p. 562. These decisions, however, merely held that belligerent domicil

was supported by Mexico in a number of cases before the 1868 Commission between the United States and Mexico to bar claims of American citizens domiciled in Mexico. Wadsworth, American Commissioner, wrongly interpreting the Koszta case, was inclined to agree with the argument that domicil fixed the national character.1 Mr. Ashton, counsel for the United States, however, in an able argument, drew a clear distinction between nationality and domicil,2 after which Commissioner Wadsworth appears to have modified his views. While Umpire Lieber held that foreign domicil could not denationalize, unless so provided by the municipal law of the native or adopted country, the Commission nevertheless held that the foreign domicil of a naturalized citizen without intent to return to the United States, or departure and establishment of domicil abroad after the filing of a declaration of intention 5 involved an abandonment of all claim to American protection. After a number of decisions in which domicil plus a decclaration of intention were held to confer nationality, Sir Edward Thornton, as second Umpire of the Commission, put an end to the uncertain and unsatisfactory decisions on this matter by acting upon the principle that the term "citizens" in the convention meant citizenship according to the law of the contracting parties, and declined to recognize a declaration of intention or domicil, singly or together, as conferring citizenship.7

The British-American Commission of 1871, dismissed the claim of a person born in the United States, who, after three years' residence

conferred the nationality of the place of domicil for determining war damages and in the matter of trade.

1 Schaben (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2696.

2 Ibid., 2696-2706. Supra, § 252.

Miller (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2706.

Perez (U. S.) v. Mexico, ibid. 2718. See also Halsey (U. S.) v. Mexico, No. 449, not in Moore (absence from U. S. for 26 years, dictum), Biencourt, ibid. 2483 (dictum).

Kern (U. S.) v. Mexico, ibid. 2719 and cases cited 2720.

Jarr and Hurst (U. S.) v. Mexico, ibid. 2707 et seq. But it was not held to confer nationality when not followed by naturalization. Kern, ibid. 2719. See also supra, p. 575.

7 Wilkinson (U. S.) v. Mexico, ibid. 2720. Zamacona, Mexican Commissioner, seems also to have acted on that principle.