clause? Great Britain, Germany, and the United States appear to have considered themselves not bound by its terms.

expressly stated:

Mr. Bayard

"The United States has uniformly refused to regard such provisions as annulling the relations existing between itself and its citizen or as extinguishing its obligations to exert its good offices in their behalf in the event of the invasion of their rights."

Furthermore, said Mr. Bayard in another connection:

"No agreement by a citizen to surrender the right to call on his government for protection is valid either in international or municipal law." 2

A close analogy is found in the settled principle of municipal law by which stipulations in private contracts agreeing to resort to arbitration and renouncing judicial remedies are held invalid, on the ground that it is against public policy "to sanction contracts by which the protection which the law affords the individual citizen is renounced." 3 The weight of authority supports the view that the mere stipulation to submit disputes to local courts is confirmatory of the general rule of international law and will be so construed by the national government of concessionaries. If, however, the renunciation goes so far as to preclude recourse to diplomatic protection, even in cases of denial of justice, the renunciation of protection will not be considered as binding upon the claimant's government; for, as in municipal law the private agreement cannot oust the jurisdiction of municipal courts, so in international law the private agreement cannot oust the interposition of international remedies. Again, if there has been a confiscatory breach of the contract by the government, the claimant will

1 Mr. Bayard, Sec'y of State, to Mr. Hall, Minister to Central America, Mar. 22, 1888, For. Rel., 1888, I, 134, 137, with respect to the claim of the Champerico and Northern Transportation Co. v. Guatemala, growing out of an alleged violation by that government of its contract with the company. Moore's Dig. VI, 295. See also Mr. Wilson, Act'g Sec'y of State, to Mr. Hibben, Chargé, May 19, 1909, For. Rel., 1909, p. 222.

2 Mr. Bayard, Sec'y of State, to Mr. Hill, Feb. 16, 1887, For. Rel., 1887, p. 100. 3 Delaware & Hudson Canal Co. v. Pa. Coal Co., 50 N. Y. 250, 258; National Contracting Co. v. Hudson River Water Power Co., 170 N. Y. 439, 442; Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S., 242, 254 (dictum). See R. Floyd Clarke in 1 A. J. I. L. (1907), 378 et seq., and L. von Bar in his opinion in the case of Salvador Commercial Co. v. Salvador, 45 Jhering's Jahrbücher, 193.

be relieved from the stipulation barring his right to make the contract the subject of an international claim. While some arbitrators, notably Umpire Barge, have evolved the rule that the clause is binding upon the claimant, but not on his government, it is difficult to see how such an inconsistent rule can be applied,1 and in fact these arbitrators have taken jurisdiction of claims in such circumstances and made awards. Finally, the right of the government to submit the claims of its citizens to an international tribunal, is, it may be concluded, superior to the right or competency of the individual to contract it away, for whatever the individual's power to renounce a personal right or privilege, he does not represent the government and is, therefore, incompetent to renounce a right, duty, or privilege of the government. In sum total, therefore, the better opinion seems to be that the renunciatory clause is without any effect so far as any changes or modifications in the ordinary rules of international law are concerned.

IMPLIED RENUNCIATION OF PROTECTION

§ 379. Various Acts from which Renunciation is Implied.

3

2

It will have been observed in the discussion of expatriation, express and implied, and of censurable conduct as a method of forfeiting protection, that there are numerous ways in which protection may be renounced by implication. During the latter half of the nineteenth century, the long-continued residence of native citizens abroad was regarded as a voluntary renunciation of protection. Even when it was admitted that such foreign residence did not effect expatriation, the Department of State was guided largely by Secretary Fish's theory, that "citizenship involves duties and obligations, as well as rights. The correlative right of protection by the Government may be waived or lost by long-continued avoidance and silent withdrawal from the performance of the duties of citizenship, as well as by open renunciation."

Since the improvement in the facilities for communication and

1 Mr. Bayard correctly stated that "to deny to a foreigner recourse to his Government by necessary implication questions and denies the right of that Government to intervene." Mr. Bayard to Mr. Hall, Nov. 29, 1886, For. Rel., 1887, p. 80.. 2 Supra, §§ 319, 325 et seq.

3 Supra, §§ 337 et seq.

4 Moore's Dig. III, § 474.

5 Mr. Fish, Sec'y of State, to Mr. Niles, Oct. 30, 1871, Moore's Dig. III, 762.

transportation and the increase of international intercourse, it has been admitted that foreign domicil no longer has the same significance as in former years. With a view to establishing on a more just basis the right of a citizen domiciled abroad to the protection of this government, the Department of State in a circular of July 26, 1910, entitled "Protection of native citizens abroad," fixed upon certain tests and presumptions, which, upon application to particular cases, are intended to establish whether the citizen has definitely identified himself with a foreign country and impliedly renounced his right to American protection. One of the most important factors in determining that the citizen abroad has impliedly renounced his right to protection is his failure to register in an American consulate.2

In the case of naturalized citizens, protracted residence abroad frequently resulted in a presumption of abandonment of their acquired American citizenship and protection. In the absence of statutory rules, prior to 1907, each case had to be determined upon its own merits in the exercise of departmental discretion. The intent to abandon American citizenship was in each case sought to be established, and numerous tests and criteria were applied in the determination of this intent. Departure from the United States soon after naturalization and a return to the native country for apparently permanent residence usually resulted in a presumption of renunciation of naturalization, although evidence was permitted by which the presumption might be overcome. When it was apparent that the naturalization was obtained not with any real design of establishing a permanent residence in the United States, but for the purpose of going abroad and using the advantages of American citizenship, while evading its duties and responsibilities, a presumption of fraud was created. While it is not always clear that expatriation was deemed to follow residence abroad-there being indeed much doubt whether the executive was empowered to denationalize a citizen-protection was uniformly withdrawn. The Act of March 2, 1907 has greatly

1 Supra, § 328.

2 Supra, pp. 689, 723.

* Supra, § 330, Moore's Dig. III, §§ 470, 475.

Supra, pp. 663, 720, 732.

simplified the extension of diplomatic protection to naturalized citizens by providing that two years' residence in the native country or five years' residence in a third country shall establish a presumption of expatriation, and the circular of April 19, 1907 sets forth the various ways in which this presumption may be overcome.1 Almost all the naturalization treaties of the United States provide that a two years' residence in the native country shall create a presumption of intent to renounce American citizenship.2

3

Reference has been made on several occasions to the Anglo-American doctrine of belligerent domicil, according to which the enemy or neutral character of property at sea is judged by the so-called commercial domicil of its owner, rather than by his political allegiance. His personal disposition toward the belligerents is immaterial. Moreover, property engaged in the commerce of the hostile power is legitimate prize, without regard to the domicil of the owner.5 Again, the property on land of a person domiciled in belligerent territory, and property there situated regardless of the owner's domicil, is subject to the risks of war. A person domiciled in enemy territory may properly be regarded as an enemy. The failure of a neutral to take early steps to remove from belligerent territory has been held to constitute an abandonment of the right to claim the protection of the government to which his original and permanent allegiance is due. A similar result naturally follows the entrance of a neutral into belligerent territory after knowledge of the existence of war.9

1 Supra, § 331.

2 Supra, §§ 239, 241.

3 Supra, pp. 110, 253, 559, Moore's Dig. VII, § 1189.

Mrs. Alexander's Cotton, 2 Wall. 404, 419; The Benito Estenger, 176 U. S. 568, Moore's Dig. VII, § 1190.

The Prize Cases, 2 Black. 635.

Supra, pp. 114, 225. Brief of W. E. Fuller before Spanish Treaty Claims Commission, case of Teresa Jeorg v. U. S., Briefs, II, 125.

7 Hall, 491; Davidson (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3738, Hale's Rep. 43. Frazer's dissenting opinion on forfeiture of protection, concurred in by presiding commissioner.

8 Clow (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2658; Cooke, ibid. 2660; Haggerty, ibid. 2663; Thompson, ibid. 2667.

• Thompson (U. S.) v. Mexico, ibid. 2669.

In all these cases of belligerent domicil, there is an implied renunciation of the protection of the national government of the person or of the owner of the property, in so far as the lawful exercise of belligerent rights against him is concerned. Good offices, however, are frequently employed in an endeavor to secure a fair trial before prize courts or the proper exercise of belligerent rights.

The engagement of an American vessel in the coasting trade of a foreign country, which reserves such trade to national vessels, or the employment of an American vessel in the service of a foreign power as auxiliary to military or naval operations has been regarded as an election to rely exclusively upon the protection of the foreign country and to waive any claim to the protection of the United States.1

It has already been observed in previous sections 2 that the censurable conduct of a claimant in certain cases operates as a forfeiture of diplomatic protection. The acts there discussed such as the inequitable conduct of the claimant generally, concealment of citizenship, the presentation of a fraudulent claim, the evasion of national duties, and the violation of municipal or international law in its various phases may likewise be regarded as involving an implied renunciation. of protection.

§ 380. Effect of Accepting Public Office or Employment Abroad.

Whether the acceptance of a public office or employment from a foreign government may be construed as an implied renunciation of American protection depends very much upon the nature of the employment, whether political or not, and upon its consistency with the retention of American citizenship. Thus, where an unqualified oath of allegiance is required,3 or where the employment is of an essentially political character, protection is considered to be renounced. 1 Supra, p. 770, Moore's Dig. II, § 328, particularly Mr. Fish, Sec'y of State, to Mr. Bassett, Sept. 15, 1869, p. 1073.

Supra, § 337 et seq.

3 Lacayo's case, For. Rel., 1893, 184-185. When the military service actually involves naturalization abroad American protection is impliedly renounced. Smith's case in Mexico, Mr. Seward to Mr. Foster, August 13, 1879, For. Rel., 1879, p. 824. 4 Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 808. While this decision is not, of course, binding upon the United States, it will be recalled that among the important tests for determining the right to protection and true allegiance of a