HERITABILITY OF CITIZENSHIP IN EXTRATERRITORIAL COMMUNITIES 709

the ruling of the Department of State expressly contemplates a permanent residence in the extraterritorial country.1

The most important matter connected with permanent residence in American communities in countries in which the United States exercises extraterritoriality was that, up to 1914, American citizenship was inheritable from generation to generation, so long as the descendants of the American citizen formed part of such a distinctive American community, regardless of their intention to assume a residence in the United States. This important exception to § 1993 of the Revised Statutes, which provides that "the rights of citizenship shall not descend to children whose fathers never resided in the United States," was based upon the ground that "such descendants are to be regarded, through their inherited extraterritorial rights born and continuing in the jurisdiction of the United States." 2 But the exception to § 1993 was not extended to the descendants of naturalized foreigners who return to the country of their origin, although their country may be one in which the United States exercises extraterritoriality.3

as

§ 333. Recent Departmental Ruling Concerning Heritability of Citizenship in Extraterritorial American Communities.

It has recently been considered by the Department of State that in view of certain decisions of the Supreme Court limiting the term "United States" to the continental part of the United States,1 and a ruling that residence in the Philippines is not counted as residence

1 The ruling covered American communities in Turkey only, but probably extends to other extraterritorial countries. It reads: "Persons who are members in Turkey of a community of citizens of the United States of the character above described do not lose their domicil of origin no matter how long they remain in Turkey, provided that they remain as citizens of the United States, availing themselves of the extraterritorial rights given by Turkey to such communities, and not merging themselves in any way in Turkish domicil or nationality." For. Rel., 1887, 1125. See as to presumption of expatriation on the part of native American citizens, Circular instruction of July 26, 1910, supra, p. 696.

2 The ruling was made in a case in Turkey, For. Rel., 1887, 1125. Circular instruction, March 27, 1899.

3 Mr. Rives, Asst. Sec'y of State, to Mr. Emmet, Jan. 11, 1888, Moore's Dig. III,

'Downes v. Bidwell (1901), 182 U. S. 244.

in the United States for purposes of naturalization, the instructions of 1887 which held residence in American communities in Turkey to be a perpetual title to American citizenship, must be overruled, for they were deemed to rest upon the fiction that persons born to American citizens residing in American communities in Turkey are born to persons residing within the territory and jurisdiction of the United States. This new ruling of the Department does away with the exception, made since 1887, to § 1993 of the Revised Statutes, and makes that section of universal application.

BANISHMENT

§ 334. Now Practically Abandoned.

In former times, exile or banishment was frequently practiced. It is now considered inconsistent with the nature of a sovereign state and opposed to the basis of the modern political system, inasmuch as this form of penalty depends for its execution upon the goodwill of neighboring states. Moreover, it may under certain circumstances be incapable of execution, for the original home state is bound to receive back its citizens if no foreign state will accept them, on account of indigence, disease, or other cause. This is one of the distinguishing marks of the bond of nationality, as has been observed. For this same reason, several leading publicists are opposed to the imposition of denationalization as a penalty for long-continued residence abroad, for entering foreign military service, for the ownership of slaves and for other acts, when no new nationality is acquired by the individual. The loss of diplomatic protection they consider to be a more logical penalty.2

It must be remembered that the penalty of loss of citizenship pro

1 Special Consular Inst. 340, July 27, 1914, Citizenship of children born of American fathers who have never resided in the United States. Including Opinion of the Solicitor, June 22, 1914. Ruling made on the application for a passport of Ben Zion Lilienthal, grandson of a naturalized citizen of the U. S. and resident, as was his father (son of the naturalized citizen) in a Zionist community in Turkey.

2 Bar, § 55; Cogordan, op. cit., 2nd ed., 285–287; Stoerk in R. G. D. I. P., 1895, 287; Bluntschli, art. 372. See Dr. Sturm in 17 Deutsche Juristen-Zeitung, Feb. 15, 1912, col. 278.

vided for in the penal codes of many of the Latin-American states has reference merely to the loss of civic rights.

ACTS WHICH DO NOT EFFECT EXPATRIATION

$335. Foreign Military Service.

1

It has been held almost uniformly that entrance into the military service of a foreign government, unless accompanied by an unqualified oath of allegiance, does not effect expatriation. Certain decisions of the domestic commission of 1849 which penalized service in Mexico with a loss of American citizenship must be understood at most in the sense of a temporary disqualification of any claim to American. citizenship, or a loss of diplomatic protection, during the continuance of the service.2 In the case of a citizen who became engaged in service against a country with which the United States was at peace, Secretary of State Jefferson reasoned that the commission of an illegal act could not operate as a legal method of expatriation.3 When military service to a foreign state involves naturalization-which is not often the case it has been held that expatriation is thereby effected.4

Although, under ordinary circumstances, military service abroad does not involve expatriation,5 it has been generally held that unneutral military service forfeits diplomatic protection. If American citizens

1 Santissima Trinidad (1821), 1 Brock. 478; 7 Wheat. 283; Mr. Hunter, Ass't Sec'y of State, to Mr. Green, Sept. 10, 1880, Moore's Dig. III, 732; Mr. Bayard, Sec'y of State, to Mr. Whitehouse, Nov. 14, 1888, ibid. 734; Mr. Rives, Ass't Sec'y of State, to Mr. Putnam, Jan. 5, 1888, For. Rel., 1895, II, 850; Mr. Knox, Sec'y of State, to Mr. Moffat, Nov. 21, 1909, For. Rel., 1909, 451. See also infra, § 364. For a ruling to the contrary, see Mr. F. W. Seward, Ass't Sec'y of State, to Mr. Thomas, May 5, 1877, Moore's Dig. III, 733.

2 Infra, p. 772.

3 From report of Mr. Webster in Thrasher's case, quoted in Moore's Dig. III, 731. Bar considers as absurd the former rule of German law that by entering foreign military service a German lost his nationality. Section 59.

Kircher v. Murray, 54 Fed. 617; Mr. F. W. Seward, Act'g Sec'y of State, to Mr. Foster, Aug. 13, 1879, For. Rel., 1879, 824; Mr. Hay, Sec'y of State, to Mr. Turley, April 6, 1899, Moore's Dig. III, 735; Martin (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2467 and cases cited (award by Palacio, Mexican commissioner).

5 Unauthorized military service abroad forfeits citizenship in certain countries. Supra, p. 687.

are taken prisoners of war, however, the government has deemed it as still its duty to see that they are treated according to the rules of war. If not engaged in unneutral service even their right to diplomatic protection is not affected.2

3

By the law of certain countries, the acceptance of military service abroad does not involve a loss of nationality, unless the subject disobeys a request to withdraw from the foreign service within a fixed time.

§ 336. Other Acts.

Among other acts which have been held not to effect expatriation are the imposition of naturalization by a foreign government against the will of the citizen, the acceptance of minor political offices from foreign governments 5 or the exercise of political rights, such as voting,6 under circumstances not indicating any intention to renounce original allegiance, and the acceptance of titles of nobility from foreign governments. The distinctions attendant upon long continued residence abroad in its effect upon expatriation have been fully discussed.

1 Infra, p. 768.

2 Dictum of Mr. Bayard, Sec'y of State, to Mr. Whitehouse, Nov. 14, 1888, Moore's Dig. III, 734; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 454.

3 E. g., Germany, Italy and Austria-Hungary. Supra, p. 687.

4 Supra, p. 535.

5 Office of Swiss vice-consul at New York, Mr. Peshine Smith, Solicitor, to Mr. Louis Boerlin, Oct. 12, 1869, Moore's Dig. III, 716; Mr. Rives, Ass't Sec'y of State, to Mr. Sewall, Jan. 6, 1888, ibid. 718. See also infra, § 380. But see Medina's case, Mr. Davis, Ass't Sec'y of State, to Mr. Weile, April 18, 1870, ibid. 737. See next footnote.

Calais v. Marshfield (1849), 30 Maine, 515; State v. Adams (1876), 45 Iowa, 99; Ware v. Wisner (1883), 50 Fed. 310.

7 Mr. Bacon, Act'g Sec'y of State, to Mr. Bryan, May 16, 1907, For. Rel., 1907, II, 957. Mr. Bacon stated: "The acceptance of a title from a foreign government is so opposed to the spirit of our institutions and laws that, although not specifically forbidden, and therefore not sufficient in itself to work expatriation, it is a circumstance to be considered in determining whether or not an American citizen has expatriated himself."

8 Supra, § 326 et seq.

CHAPTER III

FORFEITURE OF PROTECTION BY ACT OF CITIZEN-Continued. CENSURABLE CONDUCT OF THE CLAIMANT

§ 337. General Principles. Topical Division.

It is often stated that allegiance and protection are correlative. There is this difference, however, that while the duty of fidelity inherent in allegiance is absolute, the duty of the state to protect is conditional on various circumstances, the modifying effect of which it is within the state's discretion to estimate. One of the most frequent reasons for a denial, or at least, a limitation in the extent of the state's diplomatic protection is the inequitable or censurable conduct of the citizen.

It is an established maxim of all law, municipal and international, that no one can profit by his own wrong, and that a plaintiff or a claimant must come into court with clean hands. We shall, therefore, in this chapter discuss those cases in which foreign offices or international commissions have refused, or at least, limited the protection. ordinarily extended to injured citizens because the acts of the claimant himself have made such protection unjustifiable either in whole or in part. The many cases of this character which have occurred in the diplomatic history of the United States and of other nations during the last hundred years may be classified under certain definite heads, under which we shall undertake to treat the subject: first, censurable conduct generally; second, concealment of citizenship; third, fraud in the presentation or merits of the claim; fourth, the evasion of national duties and particularly military service; fifth, the breach by the citizen abroad of (a) the local law; (b) international law,-assuming, for the purpose, that international law imposes duties upon citizens; and (c) his national law. Because of the great variety of cases occurring under heading five (b) and (c), these heads have