presumption may be rebutted by evidence to the contrary. Moreover, it is to be noted that such foreign residence does not repatriate the naturalized citizen in his native land, but merely raises a presumption that his American naturalization has been renounced.

In the case of all countries, in order to justify diplomatic protection or the issuance of a passport, it must be shown that there is in good faith an intention to return to the United States. This has been the rule before and after the Act of 1907. Registration is one of the best methods of manifesting the necessary intent to return. Evidence of the absence of an intent to return, prior to 1907, was in many cases difficult to secure. Of course foreign naturalization or taking preliminary steps thereto, voluntary entrance into the civil or military service of another government, express renunciation or acts amounting thereto are clearly to be regarded as evidence of the absence of an intent to return. Usually, however, the intent has had to be inferred from various attendant circumstances and in weighing these, prolonged residence abroad has been perhaps more decisive than any other single factor.2

§ 242. Act of March 2, 1907.

Under the new rule established by the Act of March 2, 1907, when a naturalized citizen leaves this country instead of residing in it, two years' residence in the country of his origin or five years' residence in any other country creates a presumption of renunciation of the citizenship acquired here, and unless that presumption is rebutted by showing some special and temporary reason for the change of resi

1 See, however, the convention signed at Rio de Janeiro by various American states, August 13, 1906, which the United States ratified January 13, 1908. Treaty series, 575. It is there provided that "If a citizen, a native of any of the countries signing the present convention, and naturalized in another, shall again take up his residence in his native country without the intention of returning to the country in which he has been naturalized, he will be considered as having reassumed his original citizenship, and as having renounced the citizenship acquired by the said naturalization." An account of the countries which have ratified the Convention and its status in various other countries is printed in 5 R. D. I. privé (1911), 472–473. See the Venezuelan law of May 24, 1913, § 7.

2

Many cases in which long residence abroad has been held to create a presumption of renunciation of citizenship may be found in Moore's Dig. III, §§ 470, 471, and 475.

dence, the obligation of protection by the United States is deemed to be ended. The presumption may be overcome by showing that the person concerned is residing abroad principally as a representative of American trade and commerce, or that he is residing abroad for health or education, and in all these cases intends to return to the United States permanently to reside, or that he has been prevented by some unforeseen and controlling exigency from returning and intends to return upon the removal of the preventing cause.1

The meaning of the statute was for some time in doubt. It is now agreed, however, that it is intended to furnish a definite rule for determining when protection shall be withdrawn from naturalized citizens residing abroad, and that the presumption as to expatriation which is raised by the foreign residence never becomes conclusive, but is rebutted by a voluntary return to this country to reside permanently. The Act for the first time supplies a clear statutory sanction for the withdrawal of protection from that large class of false citizens who acquire American citizenship not with the intention to reside in the United States and assume the duties of citizenship, but for the purpose of residing abroad and using their American naturalization as a cloak to escape the performance of obligations in their native or other countries.

DOMICIL AS CONFERRING NATIONAL CHARACTER

§ 243. Domicil and Nationality.

It has been observed that in the period of history when people were principally attached to the soil, before nations and nationality in their modern sense became distinct political and legal concepts, domicil, or the permanent home, was the test and criterion of status, civil and political. With the rise of the modern state in Europe, however, nationality became the test of civil and political status. This rule

1

1 Circular of April 19, 1907, Expatriation, pp. 2-3, For. Rel., 1907, I, 3.

2 Gossin's case, 28 Op. Atty. Gen. 504, For. Rel., 1910, 420. Department of State circular, December 22, 1910. Where the return is involuntary, as by deportation from abroad, the presumption is not rebutted. Akulin's case in Russia, Op. Atty. Gen., July 3, 1914. The statute (§ 2) is not retroactive, Department circular, July 21, 1910. See a valuable article by Richard Flournoy, Jr., Chief of the Bureau of Citizenship, Department of State, 8 A. J. I. L. (1914), 477, 481-484.

3 Supra, p. 24.

is adopted at the present time in practically all the countries of continental Europe, the principle having received renewed stimulus through the Italian school of Mancini. In England and the United States, however, domicil has retained practically all its importance as the test of the civil status of the person, and nationality or citizenship has become the test of political status.1

Domicil is the place where a person resides as his permanent home with the fixed intention of constantly remaining there, to which, whenever he is absent, he has the intention of returning.2

Much confusion has arisen as to the true relation between domicil and national character by reason of three different factors: first, the occasional expression of executive opinion to the effect that domicil in the United States confers upon the person domiciled a national character as American and the right to American protection-a view expressed by Secretary Marcy in the Koszta case and that permanent residence or domicil abroad of an American citizen amounts to a voluntary renunciation of American citizenship and the right to diplomatic protection, or indeed, that it constitutes an act of expatriation; secondly, the universal rule of American and English courts in matters of prize law to the effect that the domicil of a merchant in belligerent or neutral territory, fixes the character of his property at sea as enemy or neutral, regardless of his national allegiance; 4

3

1 The question of domicil is almost entirely within the scope of the conflict of laws; hence it cannot be discussed here except in its relation to national character. Domicil is fully discussed in the works on the conflict of laws by Dicey (American notes by J. B. Moore, 1896; 2d English ed. 1908), Story (8th ed., 1883), Wharton (3d ed., 1905), and Minor (1901) and in the works on private international law by Bar (2d ed., Gillispie's trans., 1892), Foote (4th ed., 1914), Phillimore (v. 4 of his Commentaries, 3d ed., 1889), Savigny (2d ed., Guthrie's trans., 1880) and Westlake (5th ed., 1912). See also the special works on domicil by Dicey (1879), Phillimore (1847), Round (1861), Jacobs (1887), and Bentwich (1911).

2 See the definitions of domicil by Phillimore, Story and Wharton quoted by Moore in the Digest III, 813. The Roman law definition of domicil was very similar. See Ortolan, Generalization of Roman law, 573, cited by Morse, op. cit., 93. See also Guier v. Daniel, 1 Binney, 349; Medina v. Costa Rica, Moore's Arb. 2587 and Flutie v. Venezuela, Ralston, 38, 43.

3 The Koszta case is discussed, infra, § 250. The effect of prolonged residence abroad, infra, § 324 et seq.

4 Supra, p. 110. This doctrine of trade domicil in war will be more fully discussed presently.

and thirdly, the rule that permanent residence of a person in belligerent territory subjects him and his property there situate to all the risks of war.1

Influenced largely by one or the other of these doctrines the argument has occasionally been made that in the interpretation of protocols of arbitration of private claims the term "citizen" or "subject" must be understood in a so-called "larger" sense of international law, according to which all persons are "citizens" or "subjects" who by permanent domicil are within the protection of the government under which they reside, rather than in the strict sense of municipal law which construes the term as meaning absolute citizenship or paramount allegiance to a sovereign.2 Such an argument has some support in certain dicta of the British Privy Council passing on appeals from awards of the Board of Commissioners under the treaty of 1814 between Great Britain and France, and in certain decisions of English common-law courts. The decisions of prize courts and other opinions to the effect that belligerent domicil impresses a certain national char

3

2 This was the substance of Mr. Hale's argument before the British-American Claims Commission of May 8, 1871. His argument was rejected by the Commission. Barclay (Gt. Brit.) v. U. S., Moore's Arb. 2727, Hale's Rep. 50. See also Brief of U. S. Solicitor in case of Jonas P. Levy, Sen. Misc. Doc. 251, 35th Cong., 1st sess. (v. 4), 13-15. See also Sec'y Marcy's celebrated argument in Koszta's case, particularly part found in Moore's Dig. III, 832.

In Drummond's case, 2 Knapp P. C. Rep. 295, the claim of a British subject against France was rejected on the ground that by French law he was also a French subject. This case, frequently cited to support Mr. Hale's argument, is therefore not in point. In Countess Conway's case (2 Knapp P. C. Rep. 364, 367), Baron Parke expressed the opinion, as dictum, that had the Countess been domiciled in England she would have been entitled to British protection. In André's case (2 Knapp P. C. Rep. 365, 368), not fully reported, it seems that claimant's domicil in England at the time of the confiscation of her property in France entitled her to British protection.

Marryat v. Wilson (1798), 8 T. R. (Durnford & East), 31, 45; 1 Bosanquet and Puller, 429, 443 (dictum); McConnell v. Hector (1802), 3 B. & P. 113 (British subject commercially domiciled in enemy territory, held disentitled to sue in British courts); Tabbs v. Bendelack (1802), 3 B. & P. 207, note (commercial domicil of American citizen in Great Britain affected him with character of British subject); Bell v. Reid (1813), Maule & Selwyn, 726, 733 (British subject relieved from penalties of illicit trade with Great Britain's enemy, Denmark, by reason of his domicil in a neutral country, the United States); Albretcht v. Sussman (1813), 2 Ves. & Beam. 323.

acter upon the property of the person so domiciled and for belligerent purposes temporarily suspends his paramount allegiance have occasionally been erroneously cited in support of a contention that for civil purposes and in time of peace domicil conferred national character.1 The language of some decisions, unless understood as having relation only to trade domicil in time of war, is indeed calculated to mislead.2 The misinterpreted declarations of Secretary of State Marcy in Koszta's case, to the effect that domicil plus a declaration of intention conferred a right to American protection, led the commissioners of the American-Mexican commission under the protocol of July 4, 1868until Thornton became the umpire-to hold that domicil in the United States combined with a declaration of intention conferred American citizenship and protection.1

3

§ 244. Domicil Neither Confers nor Forfeits Citizenship.

The better rule and the one which, apart from the special matter of belligerent domicil, has been practically uniformly adopted is that domicil neither confers nor forfeits citizenship.5 This is believed to be the correct principle, notwithstanding the executive declaration to the effect that the establishment of a domicil abroad with the intention of not returning to the United States may be construed as

1 Kent appears to have fallen into this error (1 Commentaries, 78, 79), and Sec'y Marcy in Koszta's case relied largely upon Kent, Moore's Dig. III, 832. Cockburn correctly, it is believed, considers this position "altogether inadmissible." Nationality, 203, 204.

2 E. g., The Pizarro, 2 Wheat. 227, to the effect that by the law of nations, a person domiciled in a country, and enjoying the protection of its sovereign is deemed a subject of that country. See also the Charming Betsey, 2 Cranch, 64.

3 Infra, §§ 250, 251.

4 Jarr & Hurst (U. S.) v. Mexico, Moore's Arb. 2707 and the cases following in Moore's Arb. Mr. Ashton's brilliant, if somewhat specious argument (ibid. 2708) appears to have led the American commissioner, Mr. Wadsworth, into the error. Thornton declined to consider a declaration of intention or domicil, singly or together, as conferring citizenship. Wilkinson (U. S.) v. Mexico, ibid. 2720.

5 See Mr. Ashton's able argument in De Leon v. Mexico, No. 593, July 4, 1868, v. III, 392–405; IV, 50–51 paraphrased in Moore's Arb. 2696–2706. See also Adlam (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2552; Barclay, ibid. 2721, 2728; Wilkinson, ibid. 3736. See also Lem Moon Sing v. U. S. (1895), 158 U. S. 538, 547; Lau Ow Bew v. U. S., 144 U. S. 47, 62; Fong Yue Ting v. U. S., 149 U. S. 698, 724, and infra, p. 690.