in Great Britain, secured British naturalization, leaving immediately thereafter for the United States.1

The Spanish-American Claims Commission of 1871 held that departure from the United States without any intent to return is to be construed as an act of expatriation.2

The French-American Commission under the protocol of January 15, 1880, held in a number of cases that in accordance with the French Civil Code the establishment of a residence in the United States without intent to return to France forfeited the right of the claimant to appear before the commission as a citizen of France.3

$330. Case of Naturalized Citizens.

4

In our discussion of the status of naturalized citizens, it has been observed that citizenship acquired by naturalization may be more easily lost by residence abroad than citizenship acquired by birth. The tie which binds the naturalized citizen to his adopted country has always been recognized as more easily dissoluble than that which binds the native citizen to his country. While in the case of native as well as naturalized citizens, proof of residence abroad without intent to return to the United States was regarded, prior to 1907, as evidence of expatriation and involved a forfeiture of the right of American protection, the tests and criteria by which the absence of intent to return was determined were much more strictly construed and were more unfavorable to expatriation in the case of the native than in that of the naturalized citizen. Thus, a comparatively short period. of residence abroad on the part of a naturalized citizen raised a presumption of abandonment of his American citizenship.

1 Boyd (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2465. But the principal ground of decision appears to have been that by U. S. law he was an American citizen, and could not claim internationally against the United States. Supra, p. 588.

* Lavigne, No. 11, and Bister, No. 21, also Marrot, No. 114, Moore's Arb. 2565; Price (U. S.) v. Spain, ibid. 2565 (naturalized citizen settled abroad permanently immediately after naturalization).

'Lebret (France) v. U. S., Moore's Arb. 2492, 2505, Boutwell's Rep. 105 (dictum). Mrs. Lebret resided 45 years in U. S. Bouillotte, ibid. 2562 (34 years' residence in U. S. and permanent establishment construed as intention not to return). Deucatte, ibid. 2582 (declaration of intention to become U. S. citizen plus long residence in U. S. held to forfeit French citizenship under French law).

A further distinction is to be noted between naturalized citizens returning to their native countries and those proceeding to reside in third countries. The practice of the United States, as manifested in its statutes, treaties and diplomatic correspondence, has always recognized that the presumption of expatriation and of the intent to reside abroad permanently is much stronger in the case of a return to the country of origin than in the case of residence in a third country.1 In the bill from which the Act of July 27, 1868 was evolved, one section provided that continuous residence of five years in his native country on the part of a naturalized citizen shall be construed as a permanent domicil there and a forfeiture of the right to protection. In practically all of the naturalization treaties concluded by the United States, the reëstablishment of residence in the native country with the intent not to return is equivalent to a renunciation of American citizenship, and two years' residence may be regarded as evidence of such intent.3

The Act of March 2, 1907, maintains the recognized distinction between naturalized citizens returning to their native or to a third country by providing that "when any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years." Unless the presumption of renunciation of citizenship is rebutted by showing some special and temporary reason for the change of residence, the obligation of protection by the United States is deemed to be ended. While the statute may be open to the criticism that it enlarges the class of persons without any nationality, inasmuch as it withdraws American

1 Mr. Fish, Sec'y of State, to Mr. Wing, Apr. 6, 1871, Moore's Dig. III, 737; Mr. Fish to Mr. Washburne, June 28, 1873, For. Rel., 1873, I, 260; Mr. Adee, Act'g Sec'y of State, to Mr. Little, July 13, 1895, For. Rel., 1895, II, 937; The American passport, 138.

2 The section was ultimately dropped from the bill. Its legislative history is set forth in Sen. Doc. 326, 59th Cong., 2nd sess., 24-25.

* Supra, § 241.

Section 2 of the Act. This provision applies as well to the natives of countries in which the U. S. exercises extraterritoriality. The statute is not retroactive. Department of State circular instruction, July 21, 1910, For. Rel. 1901, 1.

citizenship regardless of the acquirement of any other citizenship,1 it has nevertheless been of great aid to the Department of State in determining when protection may properly be withdrawn from naturalized citizens residing abroad.

If it is shown that the residence abroad, whether in the native or in a third country, has, at any time within five years of the date of naturalization, become permanent, American protection may be withdrawn, and § 15 of the Act of June 29, 1906, authorizes the Department of Justice to bring proceedings for the cancellation of certificates of naturalization upon proof that the naturalized citizen has established a permanent residence abroad.

(B) METHODS OF OVERCOMING PRESUMPTION OF EXPATRIATION

The presumption of expatriation resulting from residence abroad may be overcome by showing that it is consistent with a valid claim to American citizenship, and the Act of 1907 provides that the presumption may be overcome "on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe." These rules and regulations are contained in the circular instruction of April 19, 1907 2 and subsequent amendments thereof.3 The circular instruction states that "the evidence required to overcome the presumption must be of the specific facts and circumstances" which bring the alleged citizen under one of the heads exempting him from the presumption of expatriation "and mere assertions, even under oath, that any of the enumerated reasons exist will not be accepted

4

1 The Pan-American conference at Rio Janeiro in 1906, in its convention on the status of naturalized citizens (ratified by the U. S. Jan. 13, 1908, Treaty Series, 575) has overcome this difficulty by providing in effect that the two years' residence in the native state shall be construed, subject to rebuttal, as a recovery of original nationality as well as a loss of adopted citizenship. (Supra, p. 554.)

2 Expatriation, For. Rel., 1907, 3. See also circular, Applications for Registration, March 2, 1908.

3 In the circular of July 26, 1910, various criteria are mentioned for overcoming the presumption of expatriation by the long residence abroad of a native citizen of the United States. Supra, p. 696. The rules now mentioned, while laid down primarily with reference to naturalized citizens, apply equally to native citizens. 4 To be named presently.

as sufficient." In the circular instruction of March 2, 1908, concerning the registration of citizens in consulates abroad, it is provided that "whenever an applicant against whom the presumption of expatriation lies submits evidence to overcome the presumption, this evidence must be in the form of an affidavit a form for which was prepared by the Department. The consular officer was empowered, in his discretion, to require corroborative evidence, if deemed necessary.

§ 331. Interpretation and Construction of Departmental Rules.

1. The most important factor which will serve to overcome the presumption of expatriation is proof that the residence abroad is in representation of American business or commerce, and that the citizen intends eventually to return to the United States permanently to reside.1 This was a rule of the Department from an early period, and the first rule prescribed by the Department under the provisions of the Act of 1907 was that the party could overcome the presumption by showing that he resided in the foreign country solely as a representative of American trade and commerce.3 Subsequently the rule was enlarged to include a person principally engaged as a representative of such trade.1 The Solicitor's Office deemed it advisable to still further enlarge the scope of this rule, with respect to naturalized citizens residing in countries contiguous to the United States, to include those engaged in substantial trade or commerce between the United States and such countries. In a circular instruction issued February 28, 1913, the Department prescribed a special and more liberal rule in the case of naturalized citizens residing in countries near to the United States for reasons and in a manner not inconsistent with the retention of American citizenship and protection. This rule reads:

"(Special rule a) In the case of a naturalized American citizen residing in Canada, Mexico, the West Indies, Central America or Panama, the presumption of expatriation may be overcome upon his presenting to a 1 Rule (a) of the Circular instruction, Expatriation, April 19, 1907, For. Rel., 1907, 4.

2 See instructions printed in Moore's Dig. III, § 476. Van Dyne, Naturalization, 355.

3 See rule (a) of Circular instruction, April 19, 1907, For. Rel., 1907, 4.

4 Circular of May 14, 1908, Amendment to rule (a) to overcome the presumption of expatriation.

diplomatic or consular officer satisfactory evidence that he is employed by a legitimate corporation or company or principally engaged in any legitimate concern, which is effectively owned and controlled by a citizen or citizens of the United States and materially promotes the interests of this country, and that he intends to return to the United States to reside."

Settlement in business by a naturalized citizen on his own account and not as a representative of American trade and commerce leads to the belief that the residence abroad is permanent and will not serve to overcome the presumption of expatriation.

2. The rule that persons who take up an apparently permanent residence abroad are not entitled to diplomatic protection, does not apply to persons who go abroad for reasons of health and remain abroad many years, hoping to come back, yet prevented from doing so by continuing illness. This rule of the Department, with the addition of the principle that residence abroad for purposes of education does not effect a change of domicil, was adopted as the second rule to overcome the presumption of expatriation under the Act of 1907.2

1

3. The third factor which may overcome the presumption is "that some unforeseen and controlling exigency beyond his power to foresee has prevented his carrying out a bona fide intention to return to the United States within the time limited by law, and that it is his intention to return and reside in the United States immediately upon the removal of the preventing cause." 3

i 4. In view of the opinion of the Attorney General in Gossin's case to the effect that the presumption of expatriation by two years' residence in the native country was created to relieve the Department from protecting persons without a bona fide intention to reside in the

1 Partial paraphrase by Mr. Moore of an instruction of Sec'y Bayard, Oct. 12, 1887, For. Rel., 1887, 1073, Moore's Dig. III, 775. See also Dupuy v. Wurtz, 53 N. Y. 556, to effect that residence abroad for reasons of health does not constitute change of domicil. Beattie v. Johnson, 10 Cl. and Fin. 139 (dictum of Lord Campbell); Burt's case, Moore's Dig. III, § 477; Strahlheim's case, Sec'y Hay to Mr. Hardy, May 20, 1902, For. Rel., 1902, 975.

2 The clause reads: "That his residence abroad is in good faith for reasons of health or for education, and that he intends eventually to return to the United States to reside." Rule (b) of Circular instruction of April 19, 1907, For. Rel., 1907, 4. 3 Rule (c), ibid.

428 Op. Atty. Gen. 504. Circular instruction, Dec. 22, 1910, For. Rel., 1910, 3, 421.