No. 676.
Mr. Bayard to Mr. Winchester .

No. 102.]

Sir: I have to acknowledge your No. 154 of September 26, 1887, and I do so with particular satisfaction, in view of the fullness and thought-fulness of the exposition you give of the position of citizens of the United States, who, after taking up an apparently permanent residence in Europe, apply, while continuing such residence, to our diplomatic agents for passports or other official assistance. And I can understand how, in view of the various phases which such cases assume, you should desire specific instructions as to particular cases coming before you.

These instructions I now proceed to give.

You rightly apprehend the position of the Department towards citizens of the United States who take up what is apparently a permanent abode in a foreign country, spending in that country their income, merging themselves in its society, assimilating themselves to its usages, at the same time refusing to contribute to what was their home Government, under whose protection in most cases their fortunes were built up, sometimes the aid that payment of taxes gives and always the aid derived from the spending of their income within its borders, and the support which it is entitled to obtain from their presence as law-abiding citizens. The policy of our system forbids the granting of diplomatic protection, except in extreme cases, to absentees of this class. They withdraw from the country of their allegiance strength to which that country is entitled. And as the first of my predecessors, Mr. Jefferson, stated as a reason for discountenancing this species of expatriation, a continuous voluntary residence of a citizen of the United States abroad, except for business purposes, is apt, even in case of his final return, to make him unfit, through the enervating and exotic influence it exerts, for usefulness in our own Republic.

But there are distinctions of great importance which must be kept in mind in considering and enunciating this rule. To these I more readily direct your attention as they touch cases frequently arising in the courts in which the domicil of Americans living abroad, and in some instances in Switzerland, is the subject of adjudication.

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I have to say, m the first place, that the rule above given does not apply to cases of citizens of the United States who go abroad for reasons of health, and remain abroad many years hoping to come back, yet prevented from doing so by continuing illness. In one recent case in New York it was held that a lady whose residence in the south of France had for these reasons continued for over twenty years had not lost her New York domicil, and that her personal property was to be distributed according to the law of that domicil In the rightfulness of this and kindred rulings I entirely concur, and I hold that as American domicil is in such eases retained so is American nationality, entitling such parties to the protection due to citizens of the United States.

The rule, in the second place, does not apply to citizens of the United States going and remaining abroad as agents of American business houses. It is as to these that one of your inquiries is put, and I have to call attention, in reply, to the wide difference between such parties as these and absentees whose continued residence abroad can be explained only on the ground of their desire to get rid of the obligation imposed on all good citizens of contributing by their services whatever is in their power to their country’s prosperity. The agent abroad of an American house is open to no such charge. The continued presence of such agents at their scene of duty is essential to the maintenance of some of our great industries, and these agents, in living and working abroad in this way, are as much entitled to the protection of the Department, no matter how long they remain away, as if they were on a mere transient visit of inquiry. And, as I have previously had occasion to observe, this protection is applicable as well to naturalized citizens returning to their country of origin as to native citizens of the United States, since it is in many cases peculiarly for the interests of business houses to employ in a foreign land agents familiar with the language and traditions of such land, and since, when such agency is avowed, there is as little ground for an inference of abandonment of American citizenship in one case as in the other.

The rule, once more, does not apply to American communities settled as such in Oriental lands and recognized in their distinctively national character by the system of government prevailing in such lands. This distinction does not, however, arise in any cases that can come before you, and I notice it here simply because I am unwilling to state the general rule without all the qualifications to which it is subject.

I am, etc.,

T. F. Bayard