Interest lies then in establishing what is the manifestation of an intent not to return to the United States and perform the duties of citizenship. Long continued residence and the absence of any indication of intention to return,1 or in addition, engaging in business abroad, marrying there, and identification with the country of residence,2 or the purchase and cultivation of land abroad 3 raise a presumption that a citizen has practically abandoned his allegiance to his native country and with it the right to claim protection from the government from which he has alienated himself and withheld his support.

Besides prolonged residence abroad, the failure to contribute to the support of the government by the payment of taxes was in Secre tary Fish's administration made an important criterion in determining whether a citizen had abandoned his right to American protection.5 But this test, like the property test, is not and has never been a good one. Under a recent ruling of the Department of State, evidence of the payment of the income tax under the Act of October 3, 1913, will not alone overcome a presumption of expatriation which may have arisen, although it will be considered in connection with other evidence in determining the question of intent to return to this country or the right to the continued protection of the United States.

The fact that the American owner of a registered vessel resides abroad has been held to suspend the benefit of American registry during such foreign residence. The same suspension of the privileges

1 Hepburn's case, residence of 35 years in Haiti; Allen's case, residence of 56 years in Haiti; Robinson's case, residence of 38 years in Mexico; Rulings of Sec'y of State Fish, Moore's Dig. III, 761-762; Robinson, however, appeared before international commissions as an American citizen, Moore's Arb. 3038, 3410; 33 years' residence in Scotland, Sec'y Olney to Mr. Bendit, Moore's Dig. III, 766.

2 Morris' case, Mr. Gresham to Mr. Smith, Sept. 1, 1893, Moore's Dig. III, 765; Webster, P., Citizenship, 169, 303; Sec'y Bayard to Min. to Switzerland, Oct. 12, 1887, For. Rel., 1887, 1073.

Sec'y Fish to Mr. Williamson, March 16, 1875, Moore's Dig. III, 765; Burt's case, Sec'y Fish to Mr. Hackett, June 12, 1873, ibid. 774. (It was later shown that Mr. Burt's absence was due to reasons of health.) The Venus, 8 Cranch, 253, 281.

4 Mr. Bayard to Sec'y of State Gresham, For. Rel., 1893, 327-328; Sec'y of State Hay to Mr. Porter, Jan. 17, 1902, For. Rel., 1902, 407-408; American Passport, 210. 5 Quotations from Sec'y Fish's instructions in Webster, P., op. cit., 165–166. 6 Circular March 18, 1914 and infra, p. 706.

7 Wirt, Atty. Gen. (1821), in 1 Op. Atty. Gen. 523.

of American registry has been held to follow the employment of an American vessel in foreign coastwise trade. Where the owner of such a vessel was domiciled in a country which by special license extended the privileges of its coastwise trade to the vessel, Secretary of State Seward held that the protection of the United States during such employment was waived.1

§ 328. Practice under the Amended Rules of 1907 and the Circular Instruction of July 26, 1910.

The recent statute of 1907 and the rules of the Department of State issued thereunder, particularly regarding the registration of American citizens resident abroad,2 have vastly increased the number of cases in which the Department has been required to pass upon the effect of residence abroad upon the right to protection. The same general principles govern applications for registration and for passports. In the circular governing registration it is provided that the certificate of registration shall not be issued unless "it is clearly shown that the residence abroad has not assumed a permanent character." In paragraph 4 of the rules governing the granting and issuing of passports,3 it is still provided that the applicant must not only state that he intends to return to this country, but within what length of time, although this latter requirement does not appear ever to have been rigidly enforced. How long the applicant could remain abroad without losing his right to receive a passport depended, until very recently, upon his intention of returning, which was determined by the circumstances of his business and social relations. But if his absence was to be permanent, he forfeited his right to receive a passport.1

1 Mr. Seward, Sec'y of State, to Mr. Sullivan, July 16, 1867, Dipl. Cor., 1868, II, 1016, Dec. 4, 1867, Moore's Dig. II, 1072. Yet when this case subsequently went to arbitration (the Montijo, (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421) the Umpire held that the claimants were not domiciled in Colombia, and added (as dictum) that even if so domiciled, the "United States would still have the right, under certain circumstances, to extend to them its protection."

2 Act of March 2, 1907, §§ 3, 4, 6, 7; Consular Regulations, § 172, as amended, Circular Instruction, Expatriation, April 19, 1907, For. Rel., 1907, 3.

Issued by President Wilson, January 12, 1915.

4 The American passport, 203. For a time between 1908 and 1910 the Department required native citizens who resided in a foreign country over ten years to submit

In the circular instruction of March 27, 1899, entitled "Passports for persons residing or sojourning abroad" it is stated that "a condition precedent to the granting of a passport is . . . that the citizenship of the applicant and his domicil in the United States and intention to return to it with the purpose of residing and performing the duties of citizenship shall be satisfactorily established.1 . . . Even where expatriation may not be established, a person who is permanently resident and domiciled outside of the United States cannot receive a passport."

After carefully considering the principles underlying the whole question of the protection of citizens abroad, the Department of State in 1910 came to the conclusion that in the case of a native American residing in a foreign country, a definite intention to resume residence. in this country should not be made an absolute prerequisite to the privilege of receiving a passport or certificate of registration, or if necessary, protection by the United States. The new ruling of the Department is embodied in a circular instruction of July 26, 1910, to Diplomatic and Consular Officers, entitled "Protection of native Americans residing abroad," which may, with advantage, be quoted in part:

"In modern times there has been a vast improvement in facilities for communication and transportation between the various nations of the earth, and a corresponding increase in international travel and trade, and it has become a not unusual practice for citizens of one country to establish themselves in another country for purposes of business, without any intention of renouncing their original allegiance. Therefore, it is the Department's opinion that the acquisition of permanent foreign residence by a native citizen has not the same significance which it had in former years. It is considered that an American citizen may now have a permanent foreign residence and yet contribute, indirectly if not directly, to the wealth and strength, the prestige and general welfare of his country, so that as long as he maintains a true allegiance to this Government and is ready, if need be, to come to its defense, he may be entitled to its protection.

sworn statements as to the cause of such residence, their ties of family and property within this country, and their intention to return to the United States for permanent residence.

1 The exceptions to the rule governing loss of protection by residence abroad will be considered infra. See the instruction of Secretary Bayard to Mr. Winchester, Minister to Switzerland, October 12, 1887, For. Rel., 1887, 1073-1074.

"In each case of an American permanently residing abroad it will be necessary, before deciding as to his right to protection, to determine among other things whether he maintains an actual connection with the United States and a true allegiance thereto, or whether he has practically abandoned this country and identified himself with the political community of the land in which he resides; and while, as to questions arising in regard to registration and the issuance of passports, a lack of intention to resume residence in this country may, upon matters relating to protection as American citizens, still raise a presumption of expatriation, such presumption shall not be considered as conclusive, but the person concerned shall be given an opportunity to show that he is still a true citizen of the United States. In this connection are to be considered the cause of the foreign residence, participation in the politics of the country of residence or abstention therefrom, ties of family, business, or property maintained with this country, and, in the case of a married man, the original nationality of the wife and the mode of raising the children, and, finally, the general conduct of the person in question. It is impossible to lay down a general rule which will be applicable to every case which arises, and each case must be decided upon its peculiar merits. You will, therefore, not finally refuse a passport or registration certificate to any person belonging to the class under consideration until you shall have been authorized to do so by the Department after a full presentation of the pertinent facts."

The purpose of the circular is to furnish tests and criteria by which the great and important question, namely, whether the citizen by birth still feels and bears true allegiance to the United States, may be determined.

The payment of the income tax under the Act of October 3, 1913, will also "be duly considered in deciding the question of the right to the continued protection of this government in cases of native citizens who have resided abroad for a period so long that the natural presumption may be held to have arisen that they have abandoned this country." 1

While these rulings modify the former rigid rule that passports and registration were to be refused to Americans who were "permanently resident and domiciled outside of the United States," the Department will probably continue, under the rulings, to decline to extend these evidences of citizenship and protection to that considerable class of renegade Americans established in foreign countries, especially in Latin-America, who have no loyalty for the United States, 1 Circular instruction "Payment of the income tax,” etc., March 18, 1914.

who fail to contribute in any way to its welfare, who meddle in the politics of the countries in which they live, never approaching our diplomatic or consular representatives until they get into trouble, and who, far from increasing the prestige of the United States abroad, merely serve to bring this country into bad odor with foreign governments.

1

It has already been observed that under a uniform rule of the Department, given statutory sanction by the Act of March 2, 1907, a passport and protection are denied to the native citizen who leaves this country at an early age and continues to reside abroad after attaining majority without electing American citizenship.

§ 329. Decisions of International Tribunals of Arbitration.

The decisions of arbitral commissions have been practically uniform in concluding that domicil or residence in a foreign country does not denationalize, unless there be a distinct law to that effect either in the claimant or defendant country. Some brilliant arguments have been made 2 to show that in an international sense the term "citizens" embodied in a protocol of arbitration, was not to be taken in its strict meaning in municipal law as denoting paramount allegiance to a sovereign, but in a so-called larger sense which embraced persons who by permanent domicil were within the protection of the government under which they resided. Such an argument, it is believed, is founded upon a failure to draw a distinction between belligerent domicil or trade domicil in time of war, in which the person's rights and liabilities flow from his domicil, and ordinary civil domicil in time of peace. It has already been observed that international commissions have frequently considered belligerent domicil as conferring national character under the terms of protocols of arbitration and as a principle of international law, but in the absence of an express agreement it has been the general rule of international commissions, so far as relates

3

1 Supra, p. 584, particularly Mr. Olney, Sec'y of State, to Mr. von Reichenau, November 20, 1896, For. Rel., 1897, 182.

2 See, e. g., Hale's and Hoar's arguments before British-American Commission under protocol of May 8, 1871, paraphrased in Moore's Arb. 2722-2725, and in Hale's Report, 11-13.

3 Supra, § 246.