The protection of the flag is intended for those who intend to dwell under it.
—Congressman James Perkins, 1907
Since independence, American diplomatic and consular officers around the world were constantly deliberating about practical issues relating to the transfer of allegiance. From the point of view of official representatives of the United States abroad, it was essential to determine with absolute certainty the final allegiance of each and every American outside the United States, and to proffer uniformity of treatment for them all. Additionally, the officers had to make sure that no one who had effectually expatriated him- or herself from the United States would receive the protection conferred upon American citizens. At the same time, it was crucial that no loyal American would be denied such protection. To these ends, the Department of State sent out detailed instructions for determining national allegiance. At times, those instructions came in the form of answers to consular dilemmas arising from a particular case; at other times, such clarifications came in the form of circulars addressing a general principle regarding American nationals abroad.
The Protection of Americans Abroad
As mentioned in Chapter 3, the idea of forced expatriation was legislated in 1865 to address army deserters. It was only in 1907 that the United States specified additional expatriating acts. However, even beforehand, the State Department was pondering the question of when a citizen forfeits his or her rights as a citizen, and especially the right to protection while abroad. According to international law, states have complete territorial sovereignty. Therefore, an American citizen abroad is under the jurisdiction of the foreign government and its laws. Since the nineteenth century, however, it has also been understood that a person who is abroad is entitled to the protection of his or her own government in cases where prejudice is clearly evident. For instance, in 1851 Daniel Webster, the American secretary of state, argued that “It is undoubtedly true that an American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of his own government; and if, without violation of any municipal law, he should be treated unjustly, he would have a right to claim that protection; and the interposition of the American Government in his favor would be considered as a justifiable interposition.”1 The negative attitude toward dual citizenship was probably related to the same concern that extending diplomatic protection to such citizens might result in a conflict between the nations.2
During the nineteenth century, it was customary that in some instances governments ought not to intervene in regard to the treatment of their citizens outside their territory. However, there were no laws that explicitly articulated those instances in which the United States should withhold protection for Americans abroad. Therefore, representatives of the United States abroad had to interpret the general principles of expatriation. For example, if an American had settled in another country, it was understood that he or she had ceased to be an American citizen and thus did not have the right to demand the protection of the U.S. government. Since there was no way to categorically establish whether a person intended to stay abroad temporarily or had moved with the purpose of remaining there, the State Department had to rely on additional indicators. These included “letters of domiciliation,” swearing allegiance to another political entity, voluntarily withdrawing property from the United States, failing to pay taxes in the United States, and going into public service in another country, as well as other indications that imply permanent residence in a foreign country, evasion of the duties of citizenship in the United States, and of course, open renunciation. While the government claimed not to discriminate between native-born and naturalized citizens in according them protection while they were abroad, this distinction did have great importance in determining whether an American had expatriated him- or herself. Secretary of State John Hay wrote in 1899 that “a naturalized citizen who returns to the country of his origins and there resides without any tangible manifestation of an intention to return to the United States may therefore generally be assumed to have lost the right to receive the protection of the United States.” 3 In the mid-nineteenth century, it was agreed that it was the responsibility of the citizen to prove that residence abroad was temporary and that or she he intended to return to the United States.
The policy of the State Department forbade the granting of diplomatic protection to citizens who permanently resided in a foreign country. Again, this served to prevent a situation akin to dual citizenship. However, the State Department was willing in some cases to accept that American citizens who resided abroad for prolonged periods of time could continue to be American citizens when health or business reasons existed for their doing so.
Thus, for example, Thomas F. Bayard, who served as secretary of state between 1885 and 1889, argued in a letter sent in 1887 that “citizens of the United States who go abroad for reasons of health, and remain abroad many years hoping to come back, yet are prevented from doing so by continuing illness”4