In 1885 a new position, more nearly associable in theory with the Koszta case, was taken by the Department of State, when the printed personal instructions to the diplomatic agents of the United States were amended so as to provide (section 118) that "nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicil, and to claim protection from this Government, in the maintenance of such status." The origin of this amendment, in a report of Dr. Wharton, as solicitor of the Department of State, is elsewhere shown; and the amendment is cited, in Wharton's International Law Digest, with the comment that "when the party making the declaration [of intention] has acquired a domicil in this country" the Government of the United States "will protect him in all the rights which the law of nations attaches to domicil." In the President's message of Dec. 8, 1885, however, it was stated that "the rights which spring from domicil in the United States, especially when coupled with a declaration of intention to become a citizen," were "worthy of definition by statute;" that such a person gained an inchoate status which legislation may properly define; that, under the laws of certain States and Territories, he enjoyed the "local franchise" and possessed "rights of citizenship to a degree which places him in the anomalous position of being a citizen of a State and yet not of the United States within the purview of Federal and international law;" and that it was important, "within the scope of national legislation, to define this right" of "alien domicil" as distinguished from "Federal naturalization." 66 By this recommendation, the President, whose views on the subject no doubt were shared by the Secretary of State, does not appear to have thought it desirable that the United States should forsake, as the basis of its diplomatic action, the usual and definite test of citizenship, embodied in existing law, for the subjective and circumstantial test of domicil. But qualified as the recommendation was, Congress took no action upon it; and the view embodied in the amendment of the personal instructions, although it was occasionally reitcrated in terms similarly indefinite in other documents, seems gradually to have fallen into desuetude. It directly appears, indeed, that Mr. Bayard became convinced that the proposed innovation, to which he had given a formal sanction, did not afford a satisfactory rule of action. In the case of Baron Seillière, given below, he says: "The question of domicil is a matter of inference from circumstances which are often shifting, uncertain, and complex. a Supra, p. 522. Wharton Int. Law Dig. II. 359. The rights of domicil and of nationality are not identical, and are often entirely distinct and independent." When the instructions to diplomatic agents were revised in 1897, during the Secretaryship of Mr. Olney, the reference to domicil was omitted. "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. Koszta and Burnato were both resident in the United States, and their absence was that of temporary character, animo revertendi, which does not conflict with the continuity of residence required by the statute. Koszta was arrested by the authorities of Austria in the dominions of a third state. Burnato, who had definitely abandoned Mexican domicil, was held for military service in Mexico on the occasion of a transient return. “Mr. Walsh, however, as my predecessors have remarked, had given no proof of retention of American residence. On the contrary, immediately after his declaration of intention, he established a commercial domicil in Mexico under circumstances which would have sufficed to disrupt his continued residence in the United States and prevent his naturalization under the statute. "By so removing to Mexico, he must be deemed to have abandoned his declared intention to become an American citizen." Mr. Bayard, Sec. of State, to Mr. Mackey, Aug. 5, 1885, Wharton's Int. See, also, Mr. Bayard, Sec. of State, to Mr. Beard, April 8, 1885, 155 MS. The view above expressed reflects the gloss first put upon the Koszta case in 1884. (Supra, pp. 339-340.) The intimation, however, that a declarant acquired special rights as against the country of his "original allegiance" seems to be directly in conflict with the theory advanced in 1884 that he was entitled to protection only in third states, as well as with the position taken by Mr. Marcy, not only in Koszta's case, but also in Tousig's case and on other occasions; nor is it borne out by an examination of the position actually taken by the United States in the case of Burnato. The facts in Burnato's case are as follows: 66 In 1880 a report was received at the Department of State that five American citizens had been impressed into the military service in Mexico. Among the persons mentioned was Felipe Burnato, a native of Mexico. It appeared that in November, 1879, Burnato was arrested at Piedras Negras by custom-house guards for smuggling 18 bottles of beer into Mexico. For this violation of the revenue laws he was sentenced" by the collector of customs at Piedras Negras to five years' service as a soldier in a Mexican battalion. With the premise that there was " scarcely any act of which a nation should be less tolerant than that of a neighboring power forcibly impressing its citizens into their military service," Mr. Morgan, the American minister in Mexico, was instructed to demand "the instant release of these men; but as to Burnato it was stated that, if the Mexican Government should bring up the fact of his "not being a citizen of the United States," the minister was to suggest that, as he had for fourteen years been a permanent resident of the United States, of which he had declared his intention to become a citizen, and had thus been under the protection of the Government, its laws, and treaties, it would "seem very ungracious" for Mexico "to insist on making any unfavorable distinction in his case." October 27, 1880, Mr. Morgan demanded the release of the five men, describing them as "citizens of the United States." The Mexican Government immediately answered that the persons thus described should apply for their discharge to the judicial tribunals.c The United States declined to accept this reply as satisfactory, at the same time making, as to Burnato, the following remark: "The peculiarities of Burnato's case are sufficiently explained in my No. 71." d Subsequently the Mexican Government, making, after inquiry of the war office, further reply to Mr. Morgan's representations, informed him that it had been ascertained that all the men, except one who deserted, were discharged from the army in July, 1880, three months before the demand for their release was made. It appears that Burnato was "begged out . . by his wife.” ƒ The consul at Piedras Negras insisted that the men should have a Mr. Hunter, Act. Sec. of State, to Mr. Morgan, min. to Mexico, No. 71, Oct. 9, 1880, For. Rel. 1880, 776. For. Rel. 1881, 747. e Mr. Fernandez, for Mex. ministry of for. aff., to Mr. Morgan, Oct. 30, 1880, For. Rel. 1881, 748. d Mr. Evarts, Sec. of State, to Mr. Morgan, No. 80, Dec. 8, 1880, For. Rel. 1881, 751, 752. e Mr. Mariscal, min. of for. aff., to Mr. Morgan, Dec. 24, 1880, For. Rel. 1881, 754. See, however, as to two of the men, id. 758. f For. Rel. 1881, 758. some indemnity. The Department of State wrote Mr. Morgan that the consul's "suggestion seems to be at least worthy of consideration." a Mr. Morgan, in reply, requested specific instructions as to Burnato, directly asking: "Is he a citizen of the United States, and therefore entitled to protection? " The Department of State replied: Burnato "will not be entitled to the protection of this Government without having acquired full citizenship." c "So far as political rights are concerned, a mere declaration of intention to become a citizen of the United States would give Abdellah Saab no title to claim the intervention of the United States should he return to his native land. If, however, he is domiciled in the United States, though not naturalized, the Government of the United States would be ready to assert for him any municipal rights which by the law of nations are assigned to domicil." Mr. Bayard, Sec. of State, to Mr. Williams, Oct. 29, 1885, 157 MS. Dom. The foregoing extract, is here reproduced, as it is given in Wharton's Int. Law Dig. II. 360. In the original letter, however, it is followed by a passage which practically renders nugatory what is said as to asserting " any municipal rights" belonging to "domicil." Abdellah Saab was a native of Turkey, who, having made a declaration of intention, desired to pay a "short visit" to Turkey," without subjecting himself to the charge of thereby reviving his native allegiance." To that end he requested a passport. He was informed that he could not have one, till he had been naturalized. Then comes the passage above quoted; and then, immediately afterwards, this sentence: "But in any view for him to return to Turkey, until his naturalization in the United States is complete, would, unless he obtain a special permit from the Turkish authorities, after reservation on his part communicated to them, lead, in international law, to the inference that he had resumed his Turkish allegiance." J. H. da C., a native of Portugal, who had lived in New York and at one time served in the United States Navy, and who regarded himself as domiciled in New York, desired the official protection of the American consul-general at Shanghai. It was held that, although For. Rel. 1881, 757. For. Rel. 1881, 791, 792. e Mr. Hitt, Act. Sec. of State, to Mr. Morgan, No. 173, Sept. 14, 1881, MS. Inst. Mex. XX. 348. he presented strong evidence of domicil in the United States, yet, as he had not become a citizen, he was "not entitled to all the rights of such a citizen, either in the United States or elsewhere;' that one of those rights was consular "protection" in countries where consuls exercised extraterritorial jurisdiction; that this meant practically the right to be registered as a citizen and to enjoy the privileges of one; and that, “ for the purposes of the acts of Congress in this behalf, it is conceived that domicil and citizenship are not convertible terms, and this has been the general opinion of the Department.' 66 66 Mr. Porter, Assist. Sec. of State, to Mr. Kennedy, cons. gen. at Shanghai, See, also, Mr. Olney, Sec. of State, to Mr. Denby, min. to China, Jan. 13, If Mr. King [a native of Canada who had resided in the United States on and off for a period of about ten years,' and had made a declaration of intention] should, on appealing to this Government for protection, show that he was domiciled in this country as well as an inchoate citizen by virtue of having declared his intention, the question of granting protection would be presented for consideration. But this position does not involve the admission of Mr. King's right to a passport or special protection papers. A passport can only be granted to native or naturalized citizens, and protection papers are no longer issued by the Department." Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Feb. 1, 1887, In May, 1887, Baron Seillière, a Frenchman, was confined in an insane asylum near Paris, in consequence, it was said, of a family controversy. He had made a declaration of intention to become a citizen of the United States, where he had, before his return to Paris, resided about twelve months;" and on these and certain other circumstances, including the taking of a house at Newport, Rhode Island, it was affirmed that his domicil was American. With citations of the supposed position of Mr. Webster in Thrasher's case, and of Mr. Marcy in Koszta's case, as set forth in Wharton's Digest, the Department of State was urged to demand of the French Government the baron's release. A communication from Commander d'Ullmann, who had accompanied the baron to Paris, to Brother Justin, the director of Manhattan College, New York, represented the necessity of a "formal demand." A cablegram from Paris, from "Mr. Monroe Livermore, one of our wealthiest New Yorkers," read: "Spino's [the baron's] life in danger unless McLane receive formal order from Bayard to act for him as American citizen, entitled to full rights. Washburne saved in this manner during Commune many French |