ACTS FROM WHICH RENUNCIATION OF CITIZENSHIP MAY BE IMPLIED 689

IMPLIED RENUNCIATION OF CITIZENSHIP

§ 324. True Meaning of the Phrase.

Inasmuch as Congress did not, until 1907, define the acts which could be construed as involving the expatriation of an American citizen, the Department of State in passing upon the validity of claims to American citizenship was compelled to determine in its discretion what acts were to be regarded as evidence of expatriation. Strictly speaking, it is beyond the competence of the executive, without legislative authorization, to declare a citizen to be expatriated, although the extension or withdrawal of diplomatic protection is within executive discretion. When the citizenship of a native citizen, therefore, is declared to have been impliedly renounced, the right to diplomatic protection is generally meant; but in view of the fact that the acts to be mentioned presently have been construed as evidences of expatriation, it has been deemed not improper to consider them under the head of implied renunciation of citizenship.

§ 325. Acts from which Renunciation of Citizenship may be Implied. Besides formal naturalization abroad, which was always admitted by the political department of the government to have the effect of expatriation, the establishment of a permanent residence abroad, the assumption of the obligations of a subject of a foreign state, or the manifestation of an intent not to return to the United States have at different times been held equivalent to expatriation,1 although it may be said that frequently the term expatriation was employed merely in the sense of a forfeiture of the right to diplomatic protection.

In certain countries, e. g., Norway, failure to register in a consulate abroad within one year after leaving the country operates as an implied renunciation of citizenship. A similar effect is produced in the United States, under the Act of 1907, by the failure of the non-resident widows of American citizens of native widows of aliens to register their intention to retain or resume American citizenship, and in cases of certain minors, the failure to register implies an election of alienage.2

1 Moore's Dig. III, § 466, and particularly the opinions of Attorneys-General Black and Williams, there quoted.

2 Supra, § 271.

(A) EFFECT OF PROLONGED RESIDENCE ABROAD

326. General Principles.

The individual act which most often required executive construction in deciding whether citizenship or protection had been impliedly renounced was prolonged residence abroad. By the Act of March 2, 1907 and the recent rulings of the Department of State, to be considered presently, numerous presumptions and criteria have been established, both in the case of native and of naturalized citizens, by reason of which the determination of the effect of protracted residence abroad upon citizenship and protection has been greatly simplified.

In many state papers it is declared that the establishment of a permanent domicil abroad is to be construed as an act of voluntary expatriation. Aside from the expatriation of an American woman by her marriage to an alien, the statutes of the United States, however, provide for only three modes of expatriation-(1) naturalization in or (2) the taking of an oath of allegiance to a foreign state, and (3) a presumption of expatriation on the part of a naturalized citizen when he resides two years in his native land or five years in any other country.1 The executive declarations in the case of native citizens, therefore, to the effect that long-continued residence abroad without an intent to return to the United States is equivalent to expatriation must be understood merely as withdrawing from the person so situated one of the most important privileges and incidents of citizenship-the diplomatic protection of the United States.

The anomalous situation which ensues when persons migrate to a foreign country to reside there indefinitely, availing themselves of its resources yet failing to acquire its nationality has been often brought to the attention of this government and of foreign governments. Neither our municipal laws nor international agreements have as yet furnished a satisfactory solution for the difficult questions to which this situation has given rise. Latin-American publicists have with some justice complained of that large class of foreigners who reside permanently in Latin-America, thereby avoiding all the

1 Act of March 2, 1907, § 2. To the effect that nothing less than expatriation can work a loss of citizenship, see 9 Op. Atty. Gen. 356.

duties of citizenship to their national state and relying upon their alienage to escape civic burdens in the state of residence. These persons often marry abroad, engage in business, and identify themselves almost completely with the people among whom they reside; yet in time of war or revolution or trouble, they assert their alienage, escape military service, war contributions and other civic obligations, and for injuries they may sustain claim indemnities through diplomatic channels.1 It has already been observed that several countries of Europe consider departure from the country without an intent to return or for ten years as an act of expatriation.2 A somewhat anomalous situation therefore confronts the nationals of such countries who, coming to the United States, declare their intention of becoming citizens. Having presumably done all in their power to sever the tie which bound them to their own country, they are nevertheless not yet citizens of the United States. Cockburn emphatically considers that such persons during the probationary period have no claim to the protection of their original nationality. The United States in this respect has apparently shared the views of those publicists who apply to nationality the principles of the law of domicil by holding that the old nationality is not put off until the new one is acquired. Nevertheless, as has been noted, the Act of 1907 provided for the extension of a limited right of protection to persons who have declared their intention to become citizens of the United States.5

While it is universally admitted that a citizen residing abroad owes what is inaccurately designated as a local or temporary allegiance to the state of residence, it is also evident that a clear distinction is and should be made between citizens temporarily and citizens permanently resident abroad."

1 See, e. g., Lisboa, Les fonctions diplomatiques, p. 190.

2 Supra, p. 689.

Cockburn, Nationality, 202–203. See also Mr. Ashton's argument on citizenship and domicil, before U. S.-Mexican commission of 1868. Moore's Arb. 2701. 4 Section 1. Supra, p. 501.

5 Dept. of State rules governing the granting and issuing of passports to such persons, November 14, 1913.

• Supra, p. 94.

'Phillimore, II, 6. Supra, p. 91. Tunstall's case, in which Mr. Bayard applied

For purposes of discussion, the effect of long-continued residence abroad upon the right to diplomatic protection in the case of native citizens and of naturalized citizens will be considered separately. The general effect of permanent domicil upon the alien's legal position in the state of residence has already been discussed.1

It may be here said that the Department of State and international commissions have taken the view that it is for the protecting state to determine the effect of long residence abroad upon the right of diplomatic protection. Thus, notwithstanding the fact that by the local law of the state of residence the alien is considered to have acquired citizenship in that state or abandoned his former allegiance, such determination is not binding upon his national state nor will it serve to deprive that state of its right to protect him. Such a result depends upon the will of his home state.2

$327. The Case of Native Citizens.

The Department of State's construction of the effect on expatriation of the protracted residence abroad of a native citizen has not always been consistent. Secretary of State Evarts held that continued. residence abroad does not amount to expatriation, unless the citizen

the rule of permanent residence to deny the right of Great Britain to protect a British subject permanently resident in the United States. For. Rel., 1885, 459. At least, so far as the use of the local judicial remedies was concerned, Mr. Bayard considered him as identical with a citizen. Asst. Atty. Gen. Hoyt in For. Rel., 1898, 108; Sec'y Seward in case of Panama Riot claims, Naturalization Report, Appendix 64. Webster's earlier view in Thrasher's case to the effect that domiciliation in Cuba deprived Thrasher of his American citizenship and right to protection (S. Ex. Doc. 10, 32nd Cong., 1st sess.) was, on fuller information, subsequently changed. Moore's Dig. III, 719-721, §§ 488-489.

Supra, § 40.

2 Lynn (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2569, 2570. See also as to effect of purchasing real estate in Mexico, cases in Moore's Arb. 2468-2482. This conclusion is only partially shared by Mr. Ashton in his abie argument on citizenship and domicil before the U. S.-Mexican commission of 1868. If the local state confers citizenship by reason of domicil, the alien would, said Mr. Ashton, forfeit his original citizenship and right to national protection. Moore's Arb. 2696, 2700. Whatever may be the merits of this view, it does not appear to have the unreserved support of the United States. Mr. Ashton's point was not directly involved in the question then under discussion.

performs acts inconsistent with his American nationality and consistent only with the formal acquirement of another nationality.1

On the other hand, many secretaries of State construed the effect of residence abroad without an intent to return to the United States as a severance of that mutual relation of protection and allegiance which lies at the foundation of citizenship, and withdrew American protection from citizens so situated.2 Secretary Marcy considered such permanent residence abroad as an abandonment of citizenship 3 and contended that the rule that trade domicil in time of war confers national character should be extended in time of peace so as to include citizens domiciled abroad. Secretary Fish in a report of August 25, 1873, expressed an opinion which was adopted by Secretary Hay and Secretary Root as a correct rule:

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"When a person who has attained his majority removes to another country and settles himself there, he is stamped with the national character of his new domicil; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period, and the presumption of law with respect to residence in a foreign country, especially if it be protracted, is that the party is there animo manendi, and it lies upon him to explain it."

These rigorous views have not prevailed. The rule more recently applied is that the mere fact that a native citizen (i. e., a citizen of the United States by birth) resides abroad, no matter for how long a time, is not sufficient of itself to deprive him of the diplomatic protection of the United States. The important fact to determine in each case is whether the citizen has manifested an intention not to return to the United States and assume the duties of citizenship. Upon evidence of this fact, the right of protection is withdrawn.

1 Mr. Evarts, Sec'y of State, to Mr. Fish, Oct. 19, 1880 (Rau's case), For. Rel., 1880, 960.

2 Extracts from instructions of Secretaries Calhoun, Webster, Marcy, Seward, Fish, and others, Moore's Dig. III, 758 et seq. It is admitted by publicists that whatever its relation to citizenship, permanent domicil abroad seriously affects the right to diplomatic protection. Phillimore, II, 6; Hall, 277.

3

Mr. Marcy to Mr. Kinney, Feb. 4, 1855, Moore's Dig. III, 759. See also Mr. Calhoun to Mr. Fairchild, Dec. 9, 1844, ibid. 758.

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4 Mr. Marcy to Mr. Clay, May 24, 1855, ibid. 760.

5 Circular of March 27, 1899 (Hay); Circular of April 19, 1907 (Root).

Sec'y Fish to the President, Aug. 25, 1873, For. Rel., 1873, II, 1186.