being a citizen under our laws, even while domiciled here, can not enjoy all the rights of citizenship either here or abroad. He is entitled to our care, and in most circumstances we have a right to consider him as under our protection, and this Government is disposed and ready to grant him all the benefits he can or ought to receive in such a situation. (Moore's Digest, III, p. 839.)

The rule now in effect was thus stated by Secretary Olney in 1896: It is established by the practical interpretation and application of domestic statutes, and by various treaties of naturalization concluded with foreign states, that a mere declaration of intention to become a citizen can not clothe the declarant with any of the international rights of citizenship. (Van Dyne on Citizenship, p. 75.)

The unsatisfactory status of the declarant was set forth by President Cleveland in his annual message of 1885:

The rights which spring from domicile in the United States, especially when coupled with a declaration of intention to become a citizen, are worthy of definition by statute. The stranger coming hither with intent to remain, establishing his residence in our midst, contributing to the general welfare, and by his volunary act declaring his purpose to assume the responsibilities of citizenship, thereby gains an inchoate status which legislation may properly define.

The feasibility of granting a temporary protection to a declarant finds an additional justification if we consider the matter of domicil. It is of course evident that mere residence, however long continued, can not, in the absence of a statute, invest such resident with the rights and corresponding duties of citizenship; but it is not unreasonable that residence extended over a long period of time, by which the person and fortune of such resident becomes incorporated, as it were, into the population and resources of our country, gives to such an one a claim upon the good will and protection of the country, based upon the fact of residence.

Indeed, it is not too much to say that the oath of the declarant may be taken as evidence of domicil, and that domicil depending upon actual residence with intent to continue such residence is therefore shown conclusively by the oath of the declarant. Domicil, as such, can not, any more than mere residence, as such, confer the rights of citizenship, but permanent residence may well be considered as giving a person so domiciled greater claims upon the country of his residence than a person temporarily sojourning would be justified in claiming.

Viewed in this light, the declarant is not only making evident an intent to become a citizen, but it is evidence of the most solemn kind of the establishment of a permanent domicil. If the subject be so considered, it will be seen that the attitude of Secretary Marcy, in the celebrated Kosta case, may be well supported and cited as an authority for protecting persons domiciled in this country who may temporarily find themselves in a foreign country other than the land of their birth.

III. EXPATRIATION.

RECOMMENDATIONS AND OBSERVATIONS.

Recommendations.

The law asserting the right of expatriation (sec. 1999, Rev. Stat.) should be supplemented by an act declaring that expatriation of an American citizen may be assumed:

First. When he obtains naturalization in a foreign state.

Second. When he engages in the service of a foreign government and such service involves his taking an oath of allegiance to such government.

Third. When he becomes domiciled in a foreign state, and such domicil may be assumed when he shall have resided in a foreign state for five years without intent to return to the United States; but an American citizen residing in a foreign country may overcome the presumption of expatriation by competent evidence produced to a diplomatic or consular officer of the United States under such rules and regulations as the President shall prescribe.

Fourth. Any person who shall have accomplished expatriation in the manner set forth in the preceding paragraphs shall, in order to reacquire American citizenship, be required to comply with the laws applicable to the naturalization of aliens.

Fifth. The exercise of the right of an American citizen to expatriate himself shall only be permitted or recognized in time of peace. Observations.

I AND II.

The first and second clauses of the recommendations require little comment. Other countries, like our own, do not naturalize foreigners until they have foresworn all other allegiance, and an American citizen who foreswears allegiance to the United States has expatriated himself from the United States.

He has done so with equal certainty when he takes an oath of allegiance to a foreign government in order to enter its service. It is true that because of conflicting laws on the subject of citizenship in different countries a child may be born to a double allegiance; but no man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance be due to more than one.

III.

The third clause of the recommendation requires more extended notice.

In 1808 an effort was made in Congress to pass a bill providing that

all citizens shall be considered such no longer than while they actually reside within the United States; and that, also, if any citizen shall expatriate himself, he shall, ipso facto, be deemed an alien, and ever after be incapable of becoming a citizen.

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The bill went to the Committee of the Whole in the House of Representatives, but was never acted upon. (Franklin's Naturalization in the United States, 115, 116.)

In 1817 the question was revived, and the following provision was reported to the House:

That whensoever any citizen of the United States shall, by a declaration in writing, made and executed in the district court of the United States, within the State where he resides, in open court to be by said court entered of record, declare that he relinquishes the character of a citizen, and shall depart out of the United States, such person shall, from the time of his departure, be considered as having exercised his right of expatriation, and shall thenceforth be considered no citizen.

He was to remain an alien until he should have gone through the usual process of naturalization. (Franklin's Naturalization, 144.) This bill failed of passage and the subject was not seriously revived till 1868.

The bill from which the act of July 27, 1868, was evolved, as presented to the House January 29, 1868, by the Committee on Foreign Affairs, contained this as the third section:

That if any naturalized citizen of the United States shall return to his native country with intent to resume his domicile therein; or if any citizen shall leave the United States with the intention of permanent residence in any foreign state; or shall fail to make annual return of his property in the United States for taxation to the assessor of internal revenue for the district of the United States in which said citizen last resided; or shall engage as an army or navy belligerent in any foreign war or service, such citizen shall not be entitled to the interposition of the Government in his behalf under the provisions of this act.

The fourth section provided that the term "domicile," in the preceding section, should be construed to mean a continuous residence of more than five years in the native country of the naturalized citizen, or establishing himself in any business which denoted an intention to resume a permanent residence. (Cong. Globe 71, pt. 1, 831.)

The object sought was to deprive such a person of the interposition of the United States in his behalf without affecting his citizenship. A right of citizenship was to be in abeyance during his foreign domicile, and could be resumed when foreign domicile ceased.

In the course of the debate Mr. Jenckes, of Rhode Island, offered the following:

That any citizen of the United States may lose his national character, first, by becoming naturalized in any foreign country; second, by undertaking without the permission of this Government the performance of public duties under a foreign government; third, by making his domicile in any foreign country without intent to return. But no residence for the purpose of commerce shall be considered as made without intent to return. SEC. 3. * *

*

but such protection shall not be accorded to the following class of persons, and the Executive shall not interfere in their behalf after their quality shall have been ascertained:

First. Those who have renounced their citizenship in either of the modes prescribed in the preceding section.

Second. Those who may be guilty of any crime against the laws of any foreign state, committed within its jurisdiction.

Third. Those who, by treason or any other crime against the United States, shall have forefeited their rights as citizens of the United States.

Fourth. Those who shall have been absent from the United States for more than five years continuously, and who shall have failed to make return of their income and property for taxation and shall have paid no taxes in the district and State within the United States where they have each had their last domicile

during each year of such absence, in the manner required by the laws of the United States and of such State.

Seventh. Those naturalized citizens who shall return to the country of their birth with intent to resume a domicile therein, which intent shall be presumed from five years' continuous residence in the native country of any such naturalized citizen, or from the establishment of any business therein which requires his personal attention, and which denotes an intention of remaining a permanent resident.

SEC. 4. And be it further enacted, That any citizen of the United States who shall have lost or renounced his citizenship in either of the modes hereinbefore set forth, may again become entitled to the same by resuming his permanent residence in any State or Territory thereof, and by making declaration of his intent to resume his citizenship in the clerk's office of any court of the United States. (Cong. Globe 71, pt. 1, 968.)

This sought to lay down a rule by which expatriation should be determined, to say what would be its effect, and how citizenship might be resumed, the proposed rules relating to expatriation being taken from the Roman law.

As the debate progressed it threatened to become unduly prolonged, and the Foreign Affairs Committee brought in an amended bill which left out the clause relating to the right of protection, the chairman of the committee stating that it did not then press for consideration and might properly be postponed. The question immediately under consideration was that of the status abroad of American citizens who were not suspected of any intention of remaining there permanently. The law as passed proclaimed the right of expatriation in the following terms:

Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of this principle, this Government has freely received emigrants from all nations and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subject to foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disallowed: Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation is declared inconsistent with the fundamental principles of the Republic. (Sec. 1999, Rev. Stat.)

This section declared that aliens have a right to become full citizens of the United States, and section 2000, declaring their rights equal with those of native citizens, was its corollary; but the law has always been construed as carrying by implication a declaration of the right of expatriation of Americans as well as foreigners.

Expressed renunciation of American citizenship is, however, extremely rare; but the class of Americans who separate themselves from the United States and live within the jurisdiction of foreign countries is becoming larger every year, and the question of their protection causes increasing embarrassment to this Government in its relations with foreign powers.

Immigration to the United States has of recent years reached proportions hitherto unheard of, and many of these immigrants will become naturalized citizens of the United States. Naturalized citizens are more apt to go abroad than native citizens. Having already changed their domicile, they are more apt to change it again. They come with the flood of prosperity and depart with it, and the number

of American citizens outside of the United States, already large, must for these and many other reasons increase in the future. One reason why the attempts which have been made in the past to secure a legislative definition of expatriation have failed is undoubtedly because the necessity has been slight in comparison with the necessity which now exists. It is the duty of the Executive to protect every American citizen while he is abroad from unjust and unlawful molestation, but it is not his duty to protect an American from just punishment for violating any law of a foreign country, and the refusal of protection is not necessarily a denial of American citizenship.

There have been numerous instances of the refusal of the passport, which is now the only document issued by the Executive in authentication of citizenship and right to protection, to citizens of the United States because of suspected intention to put the document to improper uses. In 1885 passports were refused to Mormon missionaries, who, the Secretary of State was convinced, went abroad to obtain emigrants to the United States who would upon their arrival practice polygamy (Moore's Digest, III, 921), and on July 31, 1906, the Secretary of State instructed the agent and consul-general at Cairo to refuse a passport to an American who was engaged in plots to assassinate the Sultan of Turkey and desired to travel for this purpose. The most common reason for refusing a passport is, however, that the person refused is permanently resident abroad and does not intend to return to the United States. The ground of the refusal is that he has so ordered his life that it is made impossible for him to perform the duties of a citizen of the United States, having placed himself where he can not protect and defend the United States.

It is held that the duties of a citizen toward the state and of the state toward a citizen are reciprocal obligations, and that the state is not bound to protect one who can not protect it. In refusing protection to a person who is resident abroad without intention of returning to this country one of his rights of citizenship is withdrawn; but if his intention changes and he returns to the United States to reside he may assume at once his right to protection; and, upon satisfying the Secretary of State of his intention to return, he may, if he goes abroad again, receive this Government's document of protection. He may thus really play fast and loose with his nationality, resuming to-morrow rights which he lost yesterday.

When and under what circumstances it is permissible to assume that the conditions have arisen which require the withdrawal of protection are matters left wholly to the discretion of the Executive, and he has no statute to guide him or support him.

It is difficult to determine when those who have been absent from the United States for a long time and who give no tangible evidence of an intention of returning should be left without protection. When they are refused they are aware that it is in the discretion of the Executive to accord them protection; they are aware that the policy toward them has not been stable and that one official may grant what another has refused. They do not accept, therefore, a refusal as final, but strain their energies to induce a change of decision, and their cases remain open while their status remains undefined. It seems to be clear that these people have by their own act worked their own expatriation, and that their status should be put beyond the uncertainty or fluctuations of executive policy by a declaratory law.