While the United States does not by statute prescribe loss of citizenship in case of a failure to return in time of war, the Supreme Court has expressed itself as follows: 1

"The duty of a citizen when war breaks out, if it be a foreign war and he is abroad, is to return without delay."

The Citizenship Board appointed in 1906 to make recommendations for a change in the laws concerning citizenship, expatriation, and protection, added that this duty was equally evident if the government is threatened by domestic insurrection. The government should be able to control the services of every citizen and the right of changing allegiance should not exist when the state is in peril. To this effect Halleck's statement was quoted, namely, that

"the right of voluntary expatriation exists only in time of peace and for lawful purposes." 2

Secretary of State Seward, in considering the claim of a naturalized citizen, a native of Sicily, who returned to that country shortly after his naturalization and in 1860 was despoiled of some of his property by the soldiers of the Kingdom of Naples during the siege of Palermo in that year, referred to the duty of a citizen to return home in times of domestic insurrection as follows:

"The reflection is a very obvious one that in such a crisis a good and loyal citizen might be expected to be at home in the United States and coöperate with his fellow citizens in maintaining the government against domestic enemies rather than to be residing abroad and invoking aid to prosecute claims of his own for redress of injuries which he may have suffered when domiciled amid the perils of a foreign revolution."

§ 347. Evasion of Duties of Citizenship Generally.

The right of the government to decline protection on account of an evasion of national duties has come up frequently in the case of citizens residing abroad for a long time, or in the case of naturalized citizenship. Talbot v. Jansen (1795), 3 Dallas, 133; Fish v. Stoughton (1801), 2 Johns. Cas. 407; see, however, Brown v. Dexter (1884), 66 Cal. 39 and Kircher v. Murray (1893), 54 Fed. 617.

15 Wall. 408.

2 House Document 326, 59th Cong., 2nd sess., 28.

'Seward, Sec'y of State, to Mr. Marsh, May 7, 1863, For. Rel., 1863, pt. II, p. 1067.

citizens returning to their native country. Thus, Secretary of State Fish, referring to a statement of Chief Justice Marshall's in the case of Murray v. The Schooner Charming Betsy,' stated:

"If, on the one hand, the Government assumes the duty of protecting his rights and his privileges, on the other hand the citizen is supposed to be ever ready to place his fortune and even his life at its service, should the public interest demand such a sacrifice. If, instead of doing this, he permanently withdraws his person from the national jurisdiction, if he places his property where it cannot be made to contribute to the national necessities; if his children are born and reared upon a foreign soil, with no purpose of returning to submit to the jurisdiction of the United States, then, in accordance with the principles laid down by Chief Justice Marshall and recognized in the 14th amendment, and in the act of 1868, he has so far expatriated himself as to relieve this Government from the obligation of interfering for his protection." 2

It has been noted that in determining the right of native citizens, permanently resident abroad under the regulations of July 26, 1910, to receive the protection of the United States, the evasion of national duties of citizenship constitutes an important factor. The former difficulties in establishing the title to protection of foreign-domiciled naturalized citizens have been much simplified by the presumptions of expatriation following a two and five years' residence abroad, under the Act of March 2, 1907.3

The United States has been frequently placed in a delicate situation by the demand for protection of naturalized citizens returning to their native countries, where military service is compulsory. These individuals having departed from their native country just prior to becoming eligible for military service, have secured naturalization in the United States and then, returning to their native country, have boasted of their immunity from service,-to the moral detriment of the community in which they live. The United States has not resisted the right of the foreign countries thus prejudiced to expel these undesirable pseudoAmericans. These individuals have as a matter of fact committed

1 Murray v. The Schooner Charming Betsy, 2 Cranch, 120.

2 Mr. Fish, Sec'y of State, to Mr. Washburne, Minister to France, June 28, 1873, For. Rel., 1873, I, 256, 259, Moore's Dig. III, 763.

a fraud both upon their native and upon their adopted country in that they seek to escape the obligations due to both and to secure the privileges of citizenship in both as occasion may make it their interest to make use of them.1 The interposition of the United States has been limited to securing an amelioration of the hardship of expulsion in particular cases, as, for example, securing an extension of the order until the individual could adjust his business affairs or could remove his family, or similar alleviation of a harsh situation.

Moreover, where American citizens by birth have gone abroad at an early age and remained permanent residents in countries where military service is compulsory, the United States has declined to aid them in escaping such military service, in the absence of evidence that the individual intends to return to the United States and reclaim his American citizenship, and assume the duties of an American citizen.2 Where a naturalized citizen has failed to fulfill military duties which had accrued and were owing at the time of his emigration from his native country, the United States will decline to protect him. By treaty and diplomatic negotiations, the United States has, however, established the definite policy that they will protect the naturalized citizen against the fulfillment of military duty which had not become due and owing from him at the time of his emigration from his native country.3

BREACH OF LOCAL (FOREIGN) LAW

§ 348. Limitations on Diplomatic Protection.

It is a fundamental principle of international law that the citizen abroad must obey the local law.

1 Our diplomatic correspondence shows frequent cases of this character. Two of the leading cases are those of Hofmann, For. Rel., 1894, pp. 30-36 (see the striking letter of Mr. Tripp to Mr. Gresham, Sec'y of State, August 13, 1894), and the case of Selig Fink, For. Rel., 1908, p. 18, at p. 21. See also cases in Prussia, For. Rel., 1903, pp. 457–459. These cases are of course always judged on their merits and all the circumstances taken into account; and it requires the evidence of some appar ently fraudulent evasion of national responsibilities to induce the Department to withdraw its protection from citizens naturalized in proper form.

2 Edward Pierrepont, Atty. Gen., to Hamilton Fish, Sec'y of State, For. Rel., 1875, I, 565.

3 Supra, p. 676.

"Americans, whether native born or naturalized, owe submission to the same laws in Great Britain as British subjects, while residing there and enjoying the protection of that government." 1

The question has frequently arisen in our international relations as to how far the United States will protect a citizen abroad who has violated the local law of the country of his residence. As will be noted, when criminal proceedings are involved, protection has not been absolutely declined, but it has in general been strictly limited to securing a fair trial and the application of the ordinary penalties or a concurrent attempt to ameliorate the harshness of arbitrary measures.

In the case of the Fenian movement in Ireland many naturalized Americans, natives of Ireland, were involved in suspicion of having incited the movement and were arrested under the suspension of the habeas corpus act in Ireland passed in February, 1866. The United States was often placed in a delicate position in extending protection. The principle generally followed may be expressed in the instructions of Mr. Adams, Minister of the United States, to Mr. West, American Consul at Dublin, namely:

"To secure a proper share of protection for innocent persons who were citizens of the United States without attempting to interfere on behalf of those who had justly subjected themselves to suspicion of complicity with treasonable practices." 2

3

In the case of Haggerty against Mexico a claim was made for the destruction of property of a neutral American citizen in Texas, the property being under the guaranty of the protection of Mexico under the treaty of 1831 between the United States and Mexico. On proof, however, that the property was introduced into Mexico without having paid customs duties and in disregard of a decree closing the port and without certified invoice from the Mexican consul, the Commission held that the property was introduced not under the protection of Mexico, but in defiance of it and was hence without rights under the treaty mentioned.

1 Mr. Seward, Sec'y of State, to Mr. Adams, Dipl. Cor., 1866, Pt. 1, cited from appendix to British Report on Aliens and Naturalization, 1869, pp. 47-48.

2 Cockburn on Nationality, London, 1869, p. 86.

Haggerty et al. (U. S.) v. Mexico, Domestic Commission under act of Congress, Mar. 3, 1849, Moore's Arb. 2664.

A number of cases have arisen in which the injury, to redress which protection was demanded, arose out of a breach of the local law by a foreign subject. In one such case, an officer of the U. S. S. Mohican in a Brazilian port fired his pistol at one of the boatmen trying to desert. The officer was arrested and then released with a reprimand. On complaint by the captain that this was an offense to the officer's dignity and to our flag Mr. Seward, Secretary of State, answered that the officer's act

66

was a breach of the peace, offensive to the dignity of Brazil, which the Government of that country may well expect the United States to disavow and censure. . . . The United States are not looking out for causes of complaint against foreign states."

It is a general rule that an injury to an alien arising out of a breach of or failure to observe the local law or police regulations involves a complete or partial forfeiture by the alien of the protection of his own government, though the government will usually insist that his trial be fair and the punishment not unusual or disproportionate to his offense. International commissions have followed this rule. Thus, in the case of Santangelo, a naturalized American citizen, expelled from Mexico for publishing a periodical in which articles appeared tending to ridicule Mexico, the commissioners under the convention of April 11, 1839 made a large award because the expulsion was extremely harsh and disproportionate to the offense. The violation of a proclamation of Gen. Butler in New Orleans during the Civil War prohibiting the publication of articles reflecting on the United States, etc., by a certain Dubos, a French citizen, was held to have justified

1 Brand (U. S.) v. Peru, January 12, 1863, Moore's Arb. 1625–1626; Baker (U. S.) v. Peru, January 12, 1863, Moore's Arb. 1626; Case of Koenigsberger in Guatemala (attempted smuggling), For. Rel., 1901, pp. 252-260; Case of the British brigantine Hibernia, unlawfully engaged in diving operations on the coast of Peru, 35 St. Pap. 1301. See also the cases of the British ship Vixen, seized by Russia for carrying a prohibited commodity (salt) into a Russian port (26 St. Pap. 2-60) and the British schooner Araunah, seized by Russia for seal-catching without license in Russian waters, in which cases Great Britain declined to interfere with the regular course of Russian law confiscating the vessels. American-owned vessels in Turkey, in 1912, were warned that a continued violation of local navigation regulations would result in a withdrawal of protection.