91. Residence abroad. In order to effect expatriation there must be a change of residence. "No person can make himself subject to another power while domiciled and resident within a country to which he owes allegiance," said Secretary Fish to the President, August 25, 1873. For. Rel. 1873, pt. 2, p. 1187. In Comitis v. Parkerson, 22 L. R. A. 148, 56 Fed. 556, where a woman, a native of Louisiana, married a subject of Italy and lived with her husband in Louisiana until his death, the latter never becoming naturalized, it was held that the widow, who continued to reside in the United States, was a citizen of the United States; that expatriation must be effected by removal from the country; and that, in the absence of an act of Congress authorizing it, there can be no implied renunciation of citizenship by an American woman marrying an alien. While residence of a naturalized citizen of the United States in a foreign country is not sufficient evidence of expatriation, long continued residence abroad raises a presumption of abandonment of citizenship. The presumption of law, with respect to residence in a foreign country, especially if it be protracted, is that the party is there "animo manendi," and it lies upon him to explain it. "A person may reside abroad for purposes of health, of education, of amusement, of business, for an indefinite period; he may acquire a commercial or a civil domicil there; but, if he does so sincerely and bona fide animo revertendi, and does nothing inconsistent with his pre-existing allegiance, he will not thereby have taken any step towards self-expatriation. of this, he permanently withdraws himself and his property, and places both where neither can be made to contribute to the national necessities, acquires a political domicil in a foreign country, and avows his purpose not to return, he has placed himself in the position where his country has the right to presume CIT. 18 But if, that he has made his election of expatriation." Secretary Fish to the President, For. Rel. 1873, pt. 2, pp. 1188, 1189. "It not infrequently happens that naturalization is almost immediately followed by the return of the naturalized person to his native country, and his continued residence there, without having acquired property or established any permanent relations of family or of business in the United States. Again, cases are of frequent occurrence of naturalized persons who have resided for years in the country of nativity, manifesting no purpose of returning to the United States and exhibiting no interest in the government, but who assert American citizenship only when called upon to discharge some duty in the country of their residence; thus making the claim to American citizenship the pretext for avoiding duties to one country, while absence secures them from duties to the other. These are among the class of cases where the continued residence in the country of nativity, and the absence of apparent purpose of returning, may be taken at least as prima facie evidence of expatriation." Id. For. Rel. 1873, pt. 2, p. 1191. Voluntary expatriation by a naturalized citizen, which for feits a right to diplomatic intervention, may be inferred from a long residence abroad in the place of his birth, by nonpayment of taxes and nonpossession of property in this country, and by failure to express an intention to return. 2 Wharton, Interna tional Law Dig. p. 3GS. Persons voluntarily emigrating from the United States to take up a permanent abode in a foreign land "cease to be citizens of the United States, and can have, after such a change of allegiance, no claims to protection as such citizens from our government." 2 Wharton, International Law Dig. p. 447. The theory and practice of this government proceed upon the principle that citizenship involves duties and obligations as well as rights, and an evasion of the duties and obligations by continued residence abroad works a forfeiture of the right to protection from the authorities of the United States. Mr. Fish to Mr. Niles, MSS. Dom. Let., October 30, 1871; Mr. Evarts to Mr. Logan, March 9, 1881, MSS. Inst. to Cent. America. In determining whether expatriation has taken place in any given case, the intent of the party or absence of intent to return to the United States is a very material element. As indicated above, in several of the naturalization treaties of the United States with other countries the residence of a naturalized citizen in the land of his nativity, without intent to return to the United States, is declared to work of itself a renunciation of the citizenship acquired by such naturalization, and such intent may be held to exist when the residence continues for more than two years. The adoption of this period of two years as that when the intent not to return to the United States may be held to exist on the part of the naturalized citizen who has returned to his native country indicates that, while the principle on which rests the right of protection while in foreign countries of the naturalized is the same with that of the native-born citizen, there is an appreciation of the strong proclivity to resume his original citizenship, on the part of him who, having wandered from home, returns to find the attractions of early associations and of family ties enticing him at a period, perhaps, when the restlessness and spirit of adventure of the fresher years of life have passed, to rest and to end his days amid the scenes of his childhood or youth, and among those who claim the strong ties of common blood. Hence, probably, even when not regulated by treaty, the evidence would be more readily obtained to determine that a naturalized citizen who had returned to the country of his nativity should be deemed to have expatriated himself,—or, per haps, it would be more proper to say, to have rehabilitated himself with his original citizenship,-than to show that a nativeborn citizen had expatriated himself by the same period of for eign residence. Secretary Fish to the President, August 25, 1873. Under the provision in the naturalization treaty with the North German Confederation, that the "intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country," it is held that the two years' residence is merely prima facie evidence of abandonment of nationality, and may be rebutted. 2 Wharton, International Law Dig. p. 379. While the intent to remain in the country of birth may be held to exist after two years' continuous residence, it is in reality not so held without special circumstances showing, either an intent to remain permanently, or the absence of all intent to return to the United States. Ibid. A naturalized citizen may forfeit his citizenship before the two years mentioned in the treaties have elapsed. When a citizen of the United States goes abroad without any intention to return, he forfeits, with the abandonment of his country, all right to the protection of its government. 2 Wharton, International Law Dig. p. 450. A citizen of the United States, who, being of lawful age, leaves the United States and establishes himself in a foreign country, without any definite intention to return to the United States, is to be considered as having expatriated himself. Decision of Arbitrators in American & Spanish Claims Commission Convention of 1871 (17 Stat. at L. 839), Moore, International Arbitrations, p. 2565. The position of this Department, where an American citizen goes to a foreign country and settles there animo manendi, is that he thereby forfeits the right to the protection of this government, and is to be considered as having expatriated himself. Acting Secretary Hill to Mr. Pioda, June 14, 1901, For. Rel. 1901, p. 511. 92. Military or naval service in a foreign country.- Merely entering into the military or naval service of a foreign sovereign does not, of itself, work expatriation. Chacon v. 89 Bales of Cochineal, 1 Brock. 478, Fed. Cas. No. 2,568; 7 Wheat. 283, 5 L. ed. 454. It was held by Acting Secretary Seward, in 1879, however, that James W. Smith, an American citizen, by the act of voluntarily taking military service under the government of Mexico, while a law was in existence by which such an act on his part conferred and involved the assumption of Mexican citizenship, must be deemed to have understandingly conformed to that Mexican law, and of his own accord embraced Mexican citizenship. Under the enactment of Congress (Rev. Stat. § 1999 LU S. Comp. Stat. 1901, p. 1269]), no permission of the government of the United States is necessary to the exercise of the right of expatriation. Mr. Seward to Mr. Foster, August 13, 1879, For. Rel. 1879, p. 824. Assistant Secretary Rives, on January 5, 1888, in response to an inquiry of the United States consul general at Honolulu, whether citizens of the United States, by enlisting in the army in Hawaii, relinquished their nationality, said: "Citizens of the United States do not lose their nationality by enlisting in foreign armies." For. Rel. 1895, p. 850. The Department of State, in an instruction to the United States consul at Lourenco Marques, during the Boer war, held that "an American citizen who wilfully takes up arms in the service of a foreign state must bear the consequence of his act, and cannot expect, while he serves under a foreign banner, to be |