countries.1 The United States has not been generally disposed to regard native or naturalized American citizens actively engaged in missionary enterprises in foreign States as having forfeited their nationality, or as having lost the right to national protection.2

b

Other Acts

(1)

§ 392. Participation in the Political Life of a Foreign State. Fugitives from Justice.

On grounds of public policy a State may deem the conduct of a national, apart from residence abroad, to be such as to warrant the withholding that full measure of protection which otherwise would be readily accorded. Thus, while an American citizen by taking office in a foreign State does not necessarily lose the right of national protection, his action may retard the readiness of the United States to espouse his cause, unless he becomes the victim of a denial of justice, to whom also no local remedy offers a means of redress. Likewise, active participation in the political life of a foreign State may produce a similar result.1 Any withholding of protection in such cases is due to domestic policy rather than to a requirement of international law. It

1 While American missionary enterprises have attained largest development in Oriental States, they are also established in numerous countries of the Occident. It is believed that no distinction should be drawn in the matter of the expatriation and protection of American missionaries residing in States of the latter kind.

2 Documents in Moore, Dig., III, 971-974, especially Mr. Adee, Acting Secy. of State, to Mr. Denby, Minister to China, No. 1470, July 20, 1897, MS. Inst. China, V. 460; and Mr. Hay, Secy. of State, to Mr. Conger, Minister to China, Jan. 18, 1900, For. Rel. 1900, 393.

Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to Great Britain, April 25, 1882, For. Rel. 1882, 230, 231, Moore, Dig., III, 782; Mr. Uhl, Acting Secy. of State, to Mr. Weil, Oct. 4, 1894, 199 MS. Dom. Let. 60, Moore, Dig., III, 783; Mr. Rockhill, Acting Secy. of State, to Messrs. Phillips & McKenney, Sept. 1, 1896, 212 MS. Dom. Let. 300, Moore, Dig., III, 784. Concerning the attitude of the Department of State respecting the Case of W. Morgan Shuster, an American citizen, who became Treasurer-General of Persia, see Contractual Claims, supra, § 304.

See, also, Section 7 of Claims Circular of Dept. of State of 1919, Revision of Jan. 30, 1920.

4 Mr. Evarts, Secy. of State, to Mr. Logan, No. 28, Oct. 23, 1879, MS. Inst. Cent. Am., XVIII, 47, Moore, Dig., III, 785; also other documents, id., III, 785-786.

See, also, in this connection, Instructions of Mr. Wilson, Acting Secy. of State, to American Diplomatic and Consular Officers, July 26, 1910, For. Rel. 1910, 1, 2.

UNNEUTRAL CONDUCT

I§ 393 is not believed that a State is deprived of the right to interpose in behalf of a national because of his taking part in the organization and administration of the foreign country in which he resides.1

A State such as the United States may reasonably decline to come to the assistance of its own citizens who as fugitives from its justice have sought refuge on foreign soil,2 or whose conduct is for any other reason regarded by it as censurable.3

393. Unneutral Conduct.

(2)

The American citizen who commits acts of hostility against a country with which the United States is at peace is deemed, as has been observed, to forfeit the right of national protection from the legitimate consequences of his conduct. If he participates in a war with respect to which the United States is a neutral, he so identifies himself with the State whose cause he espouses as to render himself liable to treatment as a belligerent. In such case, his own country cannot assure him protection without making itself a party to his unneutral acts. If after having entered the service of one belligerent he becomes the victim of a denial of justice at the hands of another State, any claim for repara

1 Correspondence between Mr. Olney, Secy. of State, and Baron Fava, Italian Ambassador in 1896, relative to the lynching of three Italians at Hahnville, La., For. Rel. 1896, 407, 410–411, 412, 414–418, 421-422, Moore, Dig., III, 344-353.

It was declared in Circular Instructions to certain American Consular Officers, June 22, 1907, that no circumstance is more calculated to confirm a presumption of expatriation than the fact that a person does by voting participate in the political life of a foreign country, thus acquiring a "political domicile." Ingram's Dig., Consular Instructions, Jan. 1, 1897 to May 25, 1908, p. 138.

2 Mr. Bayard, Secy. of State, to Mr. Hanna, Minister to the Argentine Republic, No. 22, June 25, 1886, MS. Inst. Argentine Republic, XVI, 385, Moore. Dig., III, 790.

3 Claims, Obstacles to Presentation, supra, § 274.

4 Claims, Obstacles to Presentation, supra, § 274. Also Dept. of State Claims Circular of 1919, Revision of Jan. 30, 1920, Section 7.

See, also, opinion of Mr. Bradford, Atty.-Gen., 1 Ops. Attys.-Gen., 57, Moore, Dig., III, 786; Mr. Webster, Secy. of State, to Mr. Peyton, Jan. 6, 1842, 32 MS. Dom. Let. 140, Moore, Dig., III, 787; proclamation of President Taylor, Aug. 11, 1849, Richardson's Messages, V, 7, Moore, Dig., III, 787; proclamation of President Taft, regarding disturbances in Mexico, March 2, 1912, Am. J., VI, Supp., 146; neutrality proclamations of President Wilson of 1914 and 1915, American White Book, European War, II, 15, 17.

5 George Grafton Wilson, Proceedings, Am. Pol. Sc. Ass., 1904, Moore, Dig., VII, 877-878.

"The Department of State will not present to a foreign government a claim based on transactions involving a violation of the neutrality of the United States." Moore, Dig., VI, 623, based on statement of Mr. Bayard, Secy. of State, to Messrs. Morris and Fillette, July 28, 1888, 169, MS. Dom. Let.

263.

tion must be preferred solely by the country in whose service he was engaged when subjected to ill-treatment.1

§ 394. Seamen.

8

Seamen serving in the naval or mercantile marine under a flag not their own, are said to be entitled, for the duration of that service, to the protection of the flag under which they serve.2

The United States, as has been observed, under the existing statutory law, announces that every seaman, being an alien, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served three years upon such merchant or fishing vessels of the United States, be deemed a citizen of the United States for the purpose of serving on board any such merchant or fishing vessel thereof, and that such seaman shall, "for all purposes of protection as an American citizen, be deemed such after the filing of his declaration of intention to become such citizen." 3

Pursuant to its statutory law, the United States, through its consular service, undertakes to extend relief to American seamen found destitute in foreign countries, regardless of the flag of the vessel on which they last served, and to all seamen of whatsoever

1 Opinion of Hassaurek, Commissioner, for the Commission in Cases of the Good Return and the Medea, American-Ecuadorean Commission, Convention of Nov. 25, 1862, Moore, Arbitrations, III, 2731-2740; Opinion of Sir F. W. A. Bruce, in certain cases before American-Colombian Commission, Convention of Feb 10, 1864, id., 2740-2743; Opinion of Findlay, Commissioner, for the Commission, in certain cases before American-Venezuelan Commission, Convention of Dec. 5, 1885, id., 2743-2751. With reference to these cases see, also, Moore, Dig., III, 788. Also Mr. Fish, Secy. of State, to Mr. Murray, Dec. 7, 1869, 82 MS. Dom. Let. 453, Moore, Dig., VI, 623.

2 The language of the text is that of Sir Edward Thornton, Umpire, in the Case of Francis McCready, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 2536, 2537, Moore, Dig., III, 795.

3 Chap. 69, Act of May 9, 1918, 40 Stat. 544, U. S. Comp. Stat. 1918, § 4352 (8). It is expressly declared that nothing in the Act of 1918 is to be construed to repeal or modify any portion of the so-called Seamen's Act of March 4, 1915, 38 Stat. 1164, Chap. 153.

See Declaration of Intention, Does Not Confer Citizenship, supra, § 358. See Consular Regulations of the United States, 1888, Art. 170, cited in Mr. Bayard, Secy. of State, to Mr. Hubbard, Minister to Japan, Nov. 10, 1888, For. Rel. 1888, II, 1079-1080, Moore, Dig., III, 799.

Cf. Cases of two British sailors of the American ship Keweenaw attacked at Valparaiso, Chile, in 1891, For. Rel. 1891, 217-345, id., 1900, 66-71, Moore, Dig., III, 796. See, also, Mr. Uhl, Acting Secy. of State, to Messrs. Goodrich et al., April 10, 1894, For. Rel. 1895, I, 229, 231, Moore, Dig., III, 798; also Dept. of State, Claims Circular of 1919, Revision of Jan. 30, 1920, Sections 5 and 6.

CARE OF INDIGENT NATIONALS

[§ 395

nationality, who are found destitute immediately after having served on an American ship.1

9

§ 395. Care of Indigent Nationals.

No rule of international law requires a State to provide relief for indigent nationals abroad, or for their return to its territory if for any reason they have become a public charge. The United States has not as yet seen fit to burden itself with such an undertaking by treaty or otherwise.2 In announcing this fact the Department of State has declared that the patients in the almshouses and asylums throughout the United States comprise large numbers of aliens who are none the less cared for by the authorities of the locality where their illness happens to occur.3

On occasions of great emergency when large numbers of Americans have been unable to leave foreign territory where their continued presence involved personal danger or hardship, the Congress has furnished necessary relief by way of subsistence and transportation to the United States.

The statement in the text is based upon the language of Mr. F. W. Seward, Acting Secy. of State, to Chev. Tavera, Austro-Hungarian Minister, Aug. 13, 1877, MS. Notes to Austria, VIII, 155, Moore, Dig., III, 796, citing to same effect, Mr. Hill, Acting Secy. of State, to Mr. Choate, Ambassador to Great Britain, No. 639, May 24, 1901, MS. Inst. Great Britain, XXXIII, 612.

Also Rev. Stat. §§ 4577, 4578, as amended June 26, 1884, and June 19, 1886, and § 4579. These sections are §§ 8368, 8369 and 8370, of U. S. Comp. Stat. 1918 ed.

2 Instructions to Diplomatic Officers of the United States, 1897, § 175, p. 68, Moore, Dig., III, 804; Mr. Wharton, Acting Secy. of State, to Mr. Douglas, Nov. 28, 1891, 184 MS. Dom. Let. 247, Moore, Dig., III, 806.

In his annual message of Dec. 2, 1872, President Grant wisely urged that provision be made for the relief of distressed citizens, other than seamen, who might become destitute or sick abroad. Richardson's Messages, VII, 191, Moore, Dig., III, 804.

3 Mr. Bayard, Secy. of State, to Count Lippe-Weissenfeld, Austrian Chargé, June 8, 1886, MS. Notes to Austria, VIII, 518, Moore, Dig., III, 806.

In exceptional cases the Department of State gives information through the diplomatic channel as to indigent aliens in the United States, that relatives abroad may have the opportunity to care for those individuals. Mr. Olney, Secy. of State, to Mr. Hengelmüller, Austro-Hungarian Minister, Jan. 13, For. Rel. 1897, 13-14, Moore, Dig., III, 807.

Mr. Bayard, Secy. of State, to Mr. Lowell, Minister to Great Britain, April 10, 1885, concerning the aid to be rendered an American citizen charged with crime and lacking, for any reason, all the means of defense which the law allowed. MS. Inst. Great Britain, XXVII, 446, Moore, Dig., III, 805.

4 The most notable instance was the relief afforded American tourists in Europe at the outbreak of the War in August, 1914.

10

THE TEMPORARY PROTECTION OF DOMICILED ALIENS DECLARING AN INTENTION TO BECOME AMERICAN CITIZENS

a

396. Thrasher's Case. Koszta's Case.

From the language of Mr. Webster, Secretary of State, in his report on Thrasher's Case, December 23, 1851, and from that of Mr. Marcy, Secretary of State, in his note of September 26, 1853, to the Austrian Chargé d'Affaires, in the Martin Koszta Case, there developed in the United States confusion of thought, manifest even in utterances emanating from the Department of State, as to the exact significance of domicile as the basis of the right of diplomatic protection.3 Both of these Secretaries of State were supposed to have been committed to the doctrine that domicile afforded a criterion of national character; and to Mr. Marcy was imputed the intimation that a declaration of intention to become an American citizen afforded some basis for the according of protection.1

Professor Moore has removed cause for misapprehension concerning both cases. He has shown that with respect to Thrasher's Case, Mr. Webster "referred to something which, although it did not necessarily presuppose the existence of domicile, went in some respects beyond it"; and that subsequently, upon fuller information, in a paper touching the same case, he banished the

1 Senate Ex. Doc. No. 5, 32 Cong., 1 Sess., Moore, Dig., III, 818.

2 House Ex. Doc. 1, 33 Cong., 1 Sess., 30, Moore, Dig., III, 824.

3 Statement in Moore, Dig., III, 817.

4 Mr. Frelinghuysen, Secy. of State, to Mr. Wallace, Minister to Turkey, March 25, 1884, and April 8, 1884, For. Rel. 1884, 551, 560, Moore, Dig., III, 339.

Declared Mr. Bayard, Secy. of State, to Mr. Mackey, Aug. 5, 1885: "The criterion by which Koszta's and Burnato's cases are to be measured in examining questions arising with respect to aliens who have declared, but not lawfully perfected, their intention to become citizens of the United States, is very simple.

"When the party, after such declaration, evidences his intent to perfect the process of naturalization by continued residence in the United States as required by law, this Government holds that it has a right to remonstrate against any act of the Government of original allegiance whereby the perfection of his American citizenship may be prevented by force, and original jurisdiction over the individual reasserted." Wharton, Dig., II, 359–360, Moore, Dig., III, 847.

5

Moore, Dig., III. 817, where the same writer adds: "The early published report in Thrasher's Case related to the question whether he was entitled to the intervention of the United States, in respect of his arrest, sentence, and imprisonment in Cuba on a charge of complicity in the Lopez expedition of