United States, and is overcome by an actual return to the United States, the Department, in a circular instruction of November 18, 1911, permitted the naturalized citizen to prove "that he has made definite arrangements to return immediately to the United States for permanent residence" as an additional method of overcoming the presumption of expatriation. In this connection, it is prescribed, that "the disposition of his property and effects, the arrangements in regard to his family, if he has one, and the steps taken to obtain passage to the United States are to be considered."

1

It will be recalled that during the administration of Secretary Fish and his immediate successors the payment of the income and excise taxes imposed on American citizens or the possession of property in this country were made tests in determining the intent to retain American citizenship. The question having been raised whether a naturalized citizen against whom the presumption of expatriation had arisen could overcome the presumption by showing that he had paid or was ready to pay the income tax provided for by the Act of October 3, 1913, the Department, in a Circular instruction of March 18, 1914, held that such a rule had not been prescribed, but added that "if a person against whom the presumption . . . has arisen presents .. evidence that he has paid the income tax, this fact will receive due consideration in connection with other evidence submitted to overcome the presumption of expatriation under the established rules, and particularly with regard to the question of intent to return to this country to reside." In like manner, the circular instruction of February 28, 1913 which applies only to Canada, Central America, Mexico, Panama and the West Indies, provides that if a person against whom the presumption has arisen shows "that he has retained in good faith in this country a residential house or other property, such fact, although not of itself decisive, should be given due weight in determining his status, and particularly the question of his intention. of returning to the United States to reside."

§ 332. Rules in the Case of Extraterritorial Countries.

The peculiar position of American citizens in Turkey and China 1 See, e. g., Mr. Fish, Sec'y of State, to Mr. McVeagh, Dec. 13, 1870, For. Rel., 1871, pp. 887, 888.

and the fact that so many American missionaries are resident in those dominions, brought about an extension of the rules by which the presumption of expatriation by residence in Turkey or China could be

overcome.

In the case of both countries, proof that the citizen resides there as a regularly appointed missionary of a recognized American church organization is sufficient to overcome the presumption of expatriation.1

In Turkey, in addition, the citizen may show that prior to March 2, 1907, he had established himself in a distinctively American community, whether or not it was formally recognized as such by the Ottoman government, that he is still residing therein, and that it has been and still is impracticable for him to return to this country to reside.2

In China, the citizen may show that he is regularly employed in an enterprise having for its object the development or advancement of the people and in no wise inconsistent with American interests, or else that he resides in China in the employ of the Chinese Government in a capacity not inconsistent with his American citizenship, and calculated to advance legitimate American interests, commercial or otherwise.3 In either case, he must show that he intends eventually to return to the United States to reside.

It will have been observed that the doctrine of implied renunciation of citizenship by continuous residence in a foreign country applies only with certain limitations to countries in which the United States exercises extraterritorial rights.

Naturalized citizens, natives of these countries, lose their citizenship by returning to them to reside permanently and a residence of

1 Rule (d) of Circular instruction, Dec. 11, 1907 (Turkey), and rule (e) of Circular instruction May 13, 1908 (China), For. Rel., 1908, 1. This rule in fact applies to missionaries everywhere, provided they do not intend to relinquish American citizenship. Mr. Everett to Mr. Marsh, Feb. 5, 1853, 2 Wharton, 360; Mr. Gresham to Mr. Runyon, November 1, 1894, American passport, 209.

Rule (c) of circular of Dec. 11, 1907 as supplemented by rule (e) embodied in instruction of Mr. Knox, Sec'y of State, to W. Stanley Hollis, American Consul General at Beirut, Dec. 16, 1912. Rule (e) has no application to persons who were formerly Turkish subjects or to those who settled in Turkey after March 2, 1907. This question of residence in countries in which the U. S. exercises extraterritoriality will be further discussed presently.

Rules (c) and (d) of circular instruction of May 13, 1908.

creates a presumption that they But in the case of native American

two years, under the Act of 1907, have ceased to be American citizens. citizens or naturalized citizens of other origin than that of the countries in question, a different rule prevails.

In a series of instructions issued in 1887 and 1888, while Mr. Bayard was Secretary of State,1 the Department of State laid down the rule that citizens of the United States not natives of these countries, could not by mere continuous residence there lose their domicil or citizenship in the United States, since they could not, without grave peril to their safety, become subjects of the native government.2 Notwithstanding their indefinitely prolonged residence, protection was extended to them so long as their pursuits were legitimate and not prejudicial to the friendly relations of the United States with the government in whose territory they were residing. In a recent case,3 the United States court for China held that notwithstanding a residence of forty-seven years in China, without an intention to return to the United States,

"There is nothing in the theory or practical operation of the law of extraterritoriality inconsistent with or repugnant to the application of the American law of domicil to American citizens residing in countries with which the United States has treaties of extraterritoriality."

The American citizen, with the exception noted, who is resident in such an extraterritorial country, need not, as a rule, in order to retain his American citizenship, domicil and right to protection, manifest an intention to return to the United States. On the contrary,

1 These instructions are to be found in For. Rel., 1887, 1094, and 1120-1125 and in Moore's Dig. III, 288. See also, on this question, Sen. Doc. 326, 59th Cong., 2nd sess., 210-213, and Hinckley, op. cit., 90-91. See also Moore's Dig. III, § 478. 2 Circular of March 27, 1899, last paragraph.

3 Young J. Allen case, 1 A. J. I. L. (1907), 1029, 1039.

4 Judge Wilfley held that Dr. Allen had acquired an extraterritorial domicil in China, and that the law which Congress has extended to Americans in China, namely, the common law, applied in the distribution of his estate, and not the law of the state (Georgia) in which he had his domicil of origin. The decision appears to have been based largely upon Sir Francis Piggott's reasoning in his work on Exterritoriality (Rev. ed., 1907), 217, 225, 230–233, and upon the views of Hall, Foreign jurisdiction, 184-186. The exception from the general rule is based upon the theory that the person has maintained his identity as an American citizen, and is connected with an American community, recognized as such by the local government.

HERITABILITY OF CITIZENSHIP IN EXTRATERRITORIAL COMMUNITIES

709

the ruling of the Department of State expressly contemplates a permanent residence in the extraterritorial country.1

The most important matter connected with permanent residence in American communities in countries in which the United States exercises extraterritoriality was that, up to 1914, American citizenship was inheritable from generation to generation, so long as the descendants of the American citizen formed part of such a distinctive American community, regardless of their intention to assume a residence in the United States. This important exception to § 1993 of the Revised Statutes, which provides that "the rights of citizenship shall not descend to children whose fathers never resided in the United States," was based upon the ground that "such descendants are to be regarded, through their inherited extraterritorial rights. . . as born and continuing in the jurisdiction of the United States." 2 But the exception to § 1993 was not extended to the descendants of naturalized foreigners who return to the country of their origin, although their country may be one in which the United States exercises extraterritoriality.3

§ 333. Recent Departmental Ruling Concerning Heritability of Citizenship in Extraterritorial American Communities.

It has recently been considered by the Department of State that in view of certain decisions of the Supreme Court limiting the term "United States" to the continental part of the United States, and a ruling that residence in the Philippines is not counted as residence

4

1 The ruling covered American communities in Turkey only, but probably extends to other extraterritorial countries. It reads: "Persons who are members in Turkey of a community of citizens of the United States of the character above described do not lose their domicil of origin no matter how long they remain in Turkey, provided that they remain as citizens of the United States, availing themselves of the extraterritorial rights given by Turkey to such communities, and not merging themselves in any way in Turkish domicil or nationality." For. Rel., 1887, 1125. See as to presumption of expatriation on the part of native American citizens, Circular instruction of July 26, 1910, supra, p. 696.

2 The ruling was made in a case in Turkey, For. Rel., 1887, 1125. Circular instruction, March 27, 1899.

3 Mr. Rives, Asst. Sec'y of State, to Mr. Emmet, Jan. 11, 1888, Moore's Dig. III,

* Downes v. Bidwell (1901), 182 U. S. 244.

in the United States for purposes of naturalization, the instructions of 1887 which held residence in American communities in Turkey to be a perpetual title to American citizenship, must be overruled, for they were deemed to rest upon the fiction that persons born to American citizens residing in American communities in Turkey are born to persons residing within the territory and jurisdiction of the United States. This new ruling of the Department does away with. the exception, made since 1887, to § 1993 of the Revised Statutes, and makes that section of universal application.

BANISHMENT

§ 334. Now Practically Abandoned.

In former times, exile or banishment was frequently practiced. It is now considered inconsistent with the nature of a sovereign state and opposed to the basis of the modern political system, inasmuch as this form of penalty depends for its execution upon the goodwill of neighboring states. Moreover, it may under certain circumstances be incapable of execution, for the original home state is bound to receive back its citizens if no foreign state will accept them, on account of indigence, disease, or other cause. This is one of the distinguishing marks of the bond of nationality, as has been observed. For this same reason, several leading publicists are opposed to the imposition of denationalization as a penalty for long-continued residence. abroad, for entering foreign military service, for the ownership of slaves and for other acts, when no new nationality is acquired by the individual. The loss of diplomatic protection they consider to be a more logical penalty.2

1

It must be remembered that the penalty of loss of citizenship pro

Special Consular Inst. 340, July 27, 1914, Citizenship of children born of American fathers who have never resided in the United States. Including Opinion of the Solicitor, June 22, 1914. Ruling made on the application for a passport of Ben Zion Lilienthal, grandson of a naturalized citizen of the U. S. and resident, as was his father (son of the naturalized citizen) in a Zionist community in Turkey.

2 Bar, § 55; Cogordan, op. cit., 2nd ed., 285-287; Stoerk in R. G. D. I. P., 1895, 287; Bluntschli, art. 372. See Dr. Sturm in 17 Deutsche Juristen-Zeitung, Feb. 15, 1912, col. 278.