general jurisprudence of nations which recognizes such a residence as consistent with the preservation of nationality." Mr. Fish, Sec. of State, to Mr. Washburne, min. to France, June 28, 1873, "While expatriation may be, and sometimes is presumed from that circumstance [continued residence in another country], it is by no means conclusive of the fact. A citizen of the United States may be absent from his country for an indefinite period for purposes of education, of business or of pleasure, and so long as he does no act or assumes no obligations inconsistent with his native or acquired citizenship in this country, he is not held under our laws to have forfeited any of his rights as a citizen of the United States." Mr. Evarts, Sec. of State, to Mr. White, min. to Germany, June 6, 1879, "The Department holds that for a native American to put off his national character he should put on another. Continued residence of a native American abroad is not expatriation, unless he performs acts inconsistent with his American nationality and consistent only with the formal acquirement of another nationality, and the same rule holds equally good in the case of a naturalized citizen of the United States who may reside abroad otherwhere than in the country of his original allegiance. Existing statutes confirm the principle by providing that citizenship shall flow to the children of American citizens born abroad, the birthright ceasing only with the grandchildren whose fathers have never resided in the United States. Foreign residence, even for two generations, is, therefore, not necessarily expatriation, in the sense of renouncing original allegiance, nor is it necessarily repatriation unless through the conflict of laws of the respective countries and the conclusion of conventional agreements between them." Mr. Evarts, Sec. of State, to Mr. Fish, chargé d'affaires to Switzerland, "An American citizen may travel or reside in a foreign country indefinitely for the purposes of education, health, business, or of pleasure, and continued absence from the United States, not accompanied by any act inconsistent with his allegiance to his country, will not cause a forfeiture of citizenship. If, however, such citizen removes his family and property from the United States, enters into business and settles permanently in a foreign country, neither expressing nor manifesting by his acts any intention of returning permanently to the United States, and if under the latter circumstances he wishes the protection of this Government against the Government. or laws of the country in which he has residence, it becomes a proper subject of inquiry whether he has not voluntarily abandoned his right to such protection." Such protection may be denied, “even if he has not technically forfeited his citizenship." Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England, Feb. 27, 1884, For. Rel. 1884, 216, 218. "As to the mere tenure of office under the Samoan government, the Department is of opinion that such tenure of office, unless it required the assumption of Samoan citizenship, could not of itself be treated as an act of expatriation, as there is nothing in the Constitution or laws of the United States that precludes a private citizen of the United States from rendering official services to foreign governments." Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia, No. 28, Jan. 6, 1888, 123 MS. Inst. Consuls, 532. A citizen of the United States " may renounce his American citizenship, and should he desire to do so no opposition to the execution of his wishes would be proper. It is not thought, however, that his declaration that he should no longer obey any order issuing from your office, or that he would renounce his citizenship, is sufficient evidence of an actual renunciation thereof." Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia, 3. OATHS OF ALLEGIANCE. § 468. "I have received the evidence transmitted by you to the Department, and have read your argument on the subject of the application of Mr. Sidney Mason for a passport. I regret not to find sufficient justification in either the facts or the arguments adduced, for a compliance with his request. By the usage of this Government, protections of the character referred to are granted to citizens of the United States alone. Evidence having been filed in this showing that Mr. Mason, whilst residing in Porto Rico, had taken the oath of allegiance to H. C. Majesty, and at the same time renounced his citizenship in this country, that rule of the Department which gives a preference to American citizens over aliens in its appointments to consulates became applicable to him, and his commission as United States consul at St. Johns was accordingly withdrawn, on the express ground of his having become a Spanish subject. The recognition of Mr. Mason now as an American citizen, by granting him a passport as such, would be in direct conflict with the decision of the Department in respect to him. Satisfied with the propriety of that decision, I can but reaffirm it by refusing Mr. Mason's passport. I will not treat alternately, as an alien and a citizen, a person who may appear in the one or the other character as it may suit his convenience. I wish you, however, to understand distinctly that I give no opinion on the several very grave questions touched in your argument as to the right of Mr. Mason before the tribunals of the United States, in the situation in which he has been pleased to place himself. I decide on the application merely as it regards the duties. of the Department of State." Mr. Forsyth, Sec. of State, to Mr. Emerson, Jan. 23, 1839, 30 MS. Dom. "Without deciding the question, whether an American citizen by taking out a letter of domiciliation in Cuba has forfeited his rights of citizenship, I think that, whilst he remains in the island, enjoying the privileges which such a letter confers, this Government is not under any obligation to protect him as an American citizen. This would seem to be clear, because in order to obtain such letter he must have promised under oath fidelity to her Catholic Majesty, and to the laws, ' renouncing all privilege, right and protection that he might claim as a foreigner, promising not to maintain any dependence, relation or subjection to the country of his birth,' &c.” Mr. Buchanan, Sec. of State, to Mr. Campbell, consul at Havana, July 26, 1848, 10 MS. Desp. to Consuls, 473. It will be observed that Mr. Buchanan draws, in this instruction, a clear distinction between the temporary renunciation or loss of the right to protective intervention, and expatriation, in the sense of loss of citizenship. See, however, Moore, Int. Arbitrations, III. 2701-2703; and supra, § 467. In 1851, soon after the breaking up of the Lopez expedition, Mr. John S. Thrasher, a native citizen of the United States, who had lived for a number of years in Cuba, engaged in business sometimes as a merchant and sometimes as an editor, was arrested and condemned to eight years' imprisonment at hard labor on a charge of treason or conspiracy against the Crown of Spain, and was sent to Spain in execution of his sentence. In reply to a resolution of the House of Representatives requesting information concerning the case, the President transmitted a report of Mr. Webster, Secretary of State, bearing date December 23, 1851. In this report it was laid down that a citizen of the United States, residing in a foreign country, although he was bound to submit to the laws, was entitled to the interposition of his Government if he should be unjustly treated, but his situation was declared to be "completely changed, when, by his own act, he has made himself the subject of a foreign power." The question whether he had not done this was, said Mr. Webster, often a matter of presumption, but the necessity of any presumption in Mr. Thrasher's case was "entirely removed, if, in fact, he actually took out letters of domiciliation, in order to enable him to transact business such as a Spanish subject or a domiciliated foreigner can alone transact, and actually swore allegiance to the Spanish Crown." In this relation Mr. Webster referred to the royal decree of January 17, 1815, to the royal colonization decree of October 21, 1817, and to a bando real issued by the governor-general of Cuba March 6, 1818, in regard to the domiciliation of aliens in Cuba. The question whether Mr. Thrasher had so domiciliated himself was not determined, but it was intimated that he had done so. Report of Mr. Webster, Sec. of State, to the President, Dec. 23, 1851, 6 See, also, Mr. Webster, Sec. of State, to Mr. Barringer, min. to Spain, The report of Mr. Webster above cited is constantly referred to as expressing his views and those of the Government of the United States on the effect of domiciliation in Cuba as an act of expatriation. This circumstance is due to the fact that those who have dealt with the subject have usually confined themselves to the public record and have failed to examine the subsequent correspondence in the case. This correspondence was examined by J. Hubley Ashton, esq., as agent of the United States before the Mexican Claims Commission under the treaty of July 4, 1868, with the result, as shown in one of Mr. Ashton's able and learned arguments, that the report of December 23, 1851, did not represent Mr. Webster's final views on the question. On a further examination of the subject it was shown that the royal colonization decree of October 21, 1817, by which provision was made for domiciliating foreigners, was issued at the request of the civil authorities at Havana for the purpose of increasing the white population of Cuba by Spaniards from the Peninsula and Canary Islands and by emigrants from friendly European nations. Many privileges were granted to such emigrants, including exemption from taxation for fifteen years, and free exportation of the property which they brought with them if they returned to their native country at any time during the first five years; and they were, asstrangers." permitted to leave in the case of war with their native country. The domiciliatory letter, which the foreigner took out, according to Spanish law, "simply authorized a foreign subject to reside in the island more than three months, and to employ himself in commerce or any other useful industry;" and it seemed, said Mr. Webster, that any conditions or restrictions introduced into the domiciliatory oath inconsistent with the letter and spirit of the royal proclamation, or with the provisions of Spanish law, must necessarily be null and void. It appeared, besides, to be the general understanding of the Spanish authorities, as well as of the foreigners who took out domiciliatory letters, that they did not by so doing for feit their rights of citizenship in their respective countries or assume any obligations inconsistent therewith. And throughout the whole Spanish law there was observed a wide distinction between domiciliation and naturalization. "Thus it appears," said Mr. Webster, "that notwithstanding the terms of the oath of domiciliation are so rigid, yet, taken in connection with the provisions of law above cited, the American residents in Cuba have never, in point of fact, regarded themselves as having changed their allegiance by taking out letters of domiciliation. They appear to have considered these letters as mere formal requisites to an undisturbed temporary residence for commercial or other business purposes. In point of fact, it is believed that these papers are usually procured by purchase, that no oath is taken, and no act done on the part of the American resident, except the payment of a small fee. Change of domicil is matter of intention, and, notwithstanding residence in fact, there must be the animus manendi. Change of allegiance, which is manifested by the voluntary action, and usually by the oath of the party himself, ought always to be accomplished by proceedings which are understood on all sides to have that effect." Mr. Webster, Sec. of State, to Mr. Sharkey, consul at Havana, July 5, 1852, Moore, Int. Arbitrations, III. 2701-2703. In the latter part of 1861, a native citizen of the United States, then residing with his family in England, and being the owner of several vessels then in English ports, became apprehensive of war between the United States and Great Britain. With a view to protect his property, he went to the city of Hamburg for the purpose of placing his vessels under the Hamburg flag, and in order to do this he took, in the license office of that city, the citizen's oath to be "true and faithful to the Free and Hanseatic Town of Hamburg." The oath, however, contained no renunciation of native allegiance. The affiant had no intention of remaining permanently in Hamburg, and he was in the city, unaccompanied by any of his family, only about three weeks. On these facts, Mr. B. R. Curtis, formerly a justice of the Supreme Court of the United States, gave an opinion to the effect that the person in question did not cease to be an American citizen, because (1) change of allegiance, as held in Blight's Lessee v. Rochester, 7 Wheat. 535, and admitted in the several opinions of the heads of Departments to the President in response to his letter of Aug. 6, 1873, can not be effected without an actual change of domicil; (2) the act of taking the oath at Hamburg did not amount to a renunciation of native allegiance, or to a declaration of a determination to remain permanently in Hamburg; (3) the naturalization treaty of Feb. 22, 1868, between the United States and the North H. Doc. 551-vol 346 |