as sufficient." In the circular instruction of March 2, 1908, concerning the registration of citizens in consulates abroad, it is provided that "whenever an applicant against whom the presumption of expatriation lies submits evidence to overcome the presumption, this evidence must be in the form of an affidavit a form for which was prepared by the Department. The consular officer was empowered, in his discretion, to require corroborative evidence, if deemed necessary.

§ 331. Interpretation and Construction of Departmental Rules.

1. The most important factor which will serve to overcome the presumption of expatriation is proof that the residence abroad is in representation of American business or commerce, and that the citizen intends eventually to return to the United States permanently to reside.1 This was a rule of the Department from an early period, and the first rule prescribed by the Department under the provisions of the Act of 1907 was that the party could overcome the presumption by showing that he resided in the foreign country solely as a representative of American trade and commerce.3 Subsequently the rule was enlarged to include a person principally engaged as a representative of such trade.* The Solicitor's Office deemed it advisable to still further enlarge the scope of this rule, with respect to naturalized citizens residing in countries contiguous to the United States, to include those engaged in substantial trade or commerce between the United States and such In a circular instruction issued February 28, 1913, the Department prescribed a special and more liberal rule in the case of naturalized citizens residing in countries near to the United States for reasons and in a manner not inconsistent with the retention of American citizenship and protection. This rule reads:

"(Special rule a) In the case of a naturalized American citizen residing in Canada, Mexico, the West Indies, Central America or Panama, the presumption of expatriation may be overcome upon his presenting to a 1 Rule (a) of the Circular instruction, Expatriation, April 19, 1907, For. Rel., 1907, 4.

2 See instructions printed in Moore's Dig. III, § 476. Van Dyne, Naturalization, 355.

3 See rule (a) of Circular instruction, April 19, 1907, For. Rel., 1907, 4.

4 Circular of May 14, 1908, Amendment to rule (a) to overcome the presumption of expatriation.

diplomatic or consular officer satisfactory evidence that he is employed by a legitimate corporation or company or principally engaged in any legitimate concern, which is effectively owned and controlled by a citizen or citizens of the United States and materially promotes the interests of this country, and that he intends to return to the United States to reside."

Settlement in business by a naturalized citizen on his own account and not as a representative of American trade and commerce leads to the belief that the residence abroad is permanent and will not serve to overcome the presumption of expatriation.

2. The rule that persons who take up an apparently permanent residence abroad are not entitled to diplomatic protection, does not apply to persons who go abroad for reasons of health and remain abroad many years, hoping to come back, yet prevented from doing so by continuing illness. This rule of the Department, with the addition of the principle that residence abroad for purposes of education does not effect a change of domicil, was adopted as the second rule to overcome the presumption of expatriation under the Act of 1907.2

3. The third factor which may overcome the presumption is "that some unforeseen and controlling exigency beyond his power to foresee has prevented his carrying out a bona fide intention to return to the United States within the time limited by law, and that it is his intention to return and reside in the United States immediately upon. the removal of the preventing cause." 3

4. In view of the opinion of the Attorney General in Gossin's case to the effect that the presumption of expatriation by two years' residence in the native country was created to relieve the Department from protecting persons without a bona fide intention to reside in the

1 Partial paraphrase by Mr. Moore of an instruction of Sec'y Bayard, Oct. 12, 1887, For. Rel., 1887, 1073, Moore's Dig. III, 775. See also Dupuy v. Wurtz, 53 N. Y. 556, to effect that residence abroad for reasons of health does not constitute change of domicil. Beattie v. Johnson, 10 Cl. and Fin. 139 (dictum of Lord Campbell); Burt's case, Moore's Dig. III, § 477; Strahlheim's case, Sec'y Hay to Mr. Hardy, May 20, 1902, For. Rel., 1902, 975.

2 The clause reads: "That his residence abroad is in good faith for reasons of health or for education, and that he intends eventually to return to the United States to reside." Rule (b) of Circular instruction of April 19, 1907, For. Rel., 1907, 4. Rule (c), ibid.

* 28 Op. Atty. Gen. 504. Circular instruction, Dec. 22, 1910, For. Rel., 1910, 3, 421.

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."

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.

2 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.

3 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.

* 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.