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56th Congress, I HOUSE OF REPRESENTATIVES, i Document
2d Session. \ \ No. 551.
A DIGEST
OF
INTEENATIONAL LAW
AS EMBODIKI) IN
DIPLOMATIC DISCUSSIONS, TREATIES AND
0THI:R international agreements, INTERNATIONAL
AWARDS, THE DECISIONS OF MUNICIPAL COURTS, AND
THE WRITINGS OF JURISTS,
AND ESPKCIALLY IN
DOCUMENTS, PUBLISHED AND UNPUBLISHED,
ISSUED BY PRESIDENTS AND SECRETARIES OF STATE OF
THE liNITED STATES,
THE OPINIONS OF THE ATTORNEYS-GENERAL, AND THE
DECISIONS OF COURTS, FEDERAL
AND STATE.
JOHN BASSETT MOORE, LL. D.,
Hamilton Fish Professor of International Law and Diplomacy, Columbia University,
New York; Associate of the Institute of International Law; Sometime
Third Assistant Secretary of State and Assistant Secre-
tary of State of the United States;
Author of a Treatise on Extradition and Interstate Rendition, of American Notes on
the Conflict of Laws, of a History and Digest of International Arbitra-
tions, of an Exposition of the Spirit and Achievements
of American Diplomacy, etc.
IN EIGHT VOLUMES
(THE EIGHTH BEING INDEXICAL).
\..
VOLUME III.
WASHINGTON:
GOVKRNMKNT PRINTING OFFICE.
11)06.
CONTENTS OF VOLUME III.
Chapter IX.
INTEROCEANIC COMMUNICATIONS.
I. Early declarations of American policy. § 336.
Instructions to delegates to Panama Congress.
Senate resolution, 1835.
House resolution, 1839.
Duty of local sovereign.
II. Isthmus of Panama.
1. Article XXXV., treaty of 1846. § 337.
(1) President Polk's message. § 338.
(2) Subsequent acts and interpretations. § 339.
(3) Negotiations of 1856-57. § 340.
(4) Negotiations of 1868-1870. § 341.
(5) Negotiations of 1881. § 342.
2. Guaranty of neutrality and sovereignty. § 343.
3. Guaranty of free and open transit.
(1) Domestic disturbances. §344.
Panama riot, 1856.
Subsequent discussions.
Insurrection of 1884-85, and after.
The Republic of Panama, 1903.
(2) Passports. § 345.
(3) Transit of the mails. § 346.
(4) Taxation and commercial regulations. § 347.
Tonnage taxes.
Capitation tax.
(5) Transit of troops. § 348.
(6) Fugitives from justice. § 349.
(7) Telegraphic conununication. § 350.
III. Clayton-Bulwer treaty.
1. The treaty and its antecedents. § 351.
2. Variant interpretations.
(1 ) Belize, or British Honduras. § 352.
(2) Ruatan, and other Bay Islands. § 353.
(3) Mosquito protectorate. § 354.
Mr. Buchanan's instructions to Mr. Hise.
Action of Mr. Clayton.
Webster-Cram pton arrangement.
Position of Mr. Marcy.
Buchanan-Clarendon negotiations.
3. Historical summary, 1851-1858. § 355.
4. Arrangement of 18'58-1860. § 356.
IV CONTENTS OF VOLUME III.
III. Clayton-Bulwer treaty — Continued.
rt. Mr. Seward's course. § .'i.")7.
Suggestion as to Tigre Island.
Treaty with Nicaragua, 18(57, and other treaties.
6. Negotiations of Mr. F'ish. § 358.
Circular of 1877.
7. Messages of Presi<lent Hayes. § 359.
8. Discussions of 1881-1883. § 360.
9. Frelinghuysen-Zavala convention. § 361.
10. President Cleveland's nie.«.«age, 1885. § 362.
11. Executive utterances, 1889-1894. § 363.
12. Mr. Olney's memorandum, 1896. § 364.
13. Recommendations by President McKinley. § 365.
14. Hay-Pauncefote treaty, 1901. § 366.
Treaty of Feb. 5, 1900.
Negotiation as to amendments.
Treaty of Nov. 18, 1901.
Message of President Roosevelt.
Resolution of Second International American Conference.
15. Mosquito question, since 1860. § 367.
Instructions of Mr. Fish, 1873.
Award of Emperor of Austria, 1881.
Mr. Bayard's representations.
Lord Salisbury's reply.
Mr. Foster's representations.
Insurrection of 1894, and subsequent events.
IV. American routes and grants. § 368.
V. Suez Canal. § .369.
VI. Corinth Canal. § 370.
VII. Kiel Canal. § 371.
Chapter X.
NATIONALITY.
I. Sources of nationality. § 372.
II. Citizenship.
1. By birth.
(1) By riglit of place. § 373.
(2) By right of blood. § 374.
2. By naturalization, § 375.
3. By revolution. § 376.
III. Naturalization.
1. Legislative and conventional regulation. § 377.
2. Voluntary individual atrticm. § 378.
3. Collective naturalization.
(1) By political incorporation. §379.
Louisiana cession.
Florida treaty.
Annexation of Texas.
Annexation of Hawaii.
Porto Rico and the Philippines.
(2) Provisions for individual election. § 380.
Treaty of (Juadalupc-IIidalgo.
Alaskan cession.
Treaty of Frankfort.
Treaty with Spain, 189S.
CONTENTS OF VOLUME III.
IV. American naturalization.
1. Regulated bj^ Congress. § 381.
2. Committed to the courts. § .382.
3. Persons capable of naturalization. § 383.
4. Usual legal conditions. § 384.
5. Declaration of intention.
(1) Usual requirement. §385.
(2) Exceptions. § 386.
Immigration during minority.
Service in Army.
Service in Navy or Marine Corps.
Special case in Hawaii.
(3) Does not confer citizenship. § 387.
Judicial decisions.
Executive action.
Cases of Italians.
6. Residence.
(1) Five years' rule. § 388.
Meaning of "continued term."
(2) Exceptions. § 389.
Seamen.
Service in Army.
V. Conventional arrangements.
1. Treaties with the (Jerman States.
(!) Negotiations. § 390.
(2) Conditions of change of allegiance. §391.
(3) Question as to Alsace-Lorraine. § 392.
(4) Practice of expulsion. § 393.
(5) Operation of treaties. § 394.
2. Belgium. § 395.
3. Sweden and Norway. § 396.
4. Great Britain. § 397.
5. Austria-Hungary.
( 1 ) Conditions of change of allegiance. § 398.
(2) Practice of expulsion. § 399.
6. Denmark; Ecuador. § 400.
VI. Naturalization not retroactive.
1. General priciples. §401.
2. German treaties.
(1) Military cases. § 402.
(2) Statutes of limitition. § 403.
3. Austro-Hungarian treaty. § 404.
4. Belgian treaty. § 405.
5. Danish treaty. § 406.
6. Treaty with Sweden and Norway. § 407.
VII. Nationality of married women.
1. Marriage of American women to aliens.
(1) Effect on status. § 408.
(2) Reversion of nationality. § 409.
2. Marriage of alien women to Americans.
(1) American law. § 410.
(2) Reversion of nationality. § 411.
3. Law in other countries. § 412.
VI CONTENTS OF VOLUME III.
VIII. Effect of parents' naturalization on infants.
1. Ameriwin law. § 41.S. •
2. Marriage of alien widow to American. § 414.
3. Adoption of children. §415.
IX. Naturalization internationally ineffective as to absent family.
1. Married women. § 416.
2. Infants. § 417.
3. Good offices for emigration. § 418.
X. Proof.s of nationality.
1. Evidences of citizenship. §419.
2. Proof of naturalization.
(1) The judicial record. § 420.
(2) Loss or destruction of record. § 421.
Question of fact.
Practice of Department of State.
3. Impeachment of naturalization.
(1) Rules of municipal courts. §422.
(2) Rule of international action. § 423.
Repudiation of naturalization improperlj^ obtained.
(3) Authority to make decision. § 424.
(4) Disposition of fraudulent certificates. § 425.
XI. Double allegiance.
1. Foreign-born children.
(1) Act of 1855. §426.
(2) Particular applications of principle. § 427.
2. Native-born children.
(1) Double allegiance at birth. § 428.
(2) Change of parents' nationality. § 429.
3. Election at majority. § 430.
XII. Question of expatriation.
1. Common-law doctrine. § 431.
2. Judicial decisions.
(1) Prior to 1868. § 432.
(2) Since 1868. § 4.33.
3. Governmental doctrine.
(1) Executive declarations down to 1845. § 434.
(2) Mr. Buchanan's assertion of un(|ualified right. § 435.
(3) Reversion to earlier doctrine. § 436.
(4) Reassertion of unqualified right, 1857-1861. § 437.
(5) Course during civil war. § 438.
(6) Act of 1868. § 439.
(7) SuV)sequent statements. §440.
4. Law of particular countries.
(1) China. §441.
(2). France. §442.
(3) Germany. § 443.
(4) Greece. § 444.
(5) Guatemala. § 445.
(6) Italy. § 446.
(7) Morocco. § 447.
(8) The Netherlands. § 448.
(9) Nicaragua. § 449.
(10) Persia. § 450.
COIS^TENTS OF VOLUME III. VII
XII. Question of expatriation — Continued.
4. Law of particular countries — Continued.
(11) Portugal. § 451.
(12) Eoumania. § 452.
(13) Russia. § 453.
(14) Servia. § 454.
(15) Spain. §455.
(16) Switzerland.
(a) Swiss law of 1876. § 456.
(b) Diplomatic discussions. § 457.
(c) Futile conventional negotiations. § 458.
(17) Turkey.
(a) Law of 1869. § 459.
(b) Bureau of nationality. §460.
(c) Diplomatic controversies. § 461
(d) Penalties and petitions. § 462.
(e) Expulsion cases. §463.
(f) Unratified treaty of 1874. § 464.
(18) Venezuela. § 465.
XIII. Modes of expatriation.
1. Acts held to effect expatriation. § 466.
2. Acts held not to effect expatriation. § 467.
3. Oaths of allegiance. § 468.
4. Military service. § 469.
XIV. Renunciation of naturalization.
1. General principles. § 470.
2. German treaties. § 471.
3. Treaty with Ecuador. § 472.
4. Treaty with Denmark. § 473.
XV. Loss of right to national protection.
1. Foreign domicil.
(1) Native citizens. §474. . •
(2) Naturalized citizens. § 475.
(3) American business interests. § 476.
(4) Reiisons of health. § 477.
(5) Residence in Oriental lands. § 478.
2. Office holding. § 479.
3. Taking part in politics. § 480.
4. ITnneutral conduct. § 481.
'5. Fugitives from justice. §482.
6. Question of matriculation. § 483.
XVI. Seamen. § 484.
XVII. Corporations. § 485.
XVIII. Care of indigent citizens. § 486.
ClI.^lTKR XI.
DOMICIL.
I. A source of civil status. § 487.
II. Belligerent domicil. § 488.
III. Thrasher's case. § 489
IV. The Koszta ca.^e.
1. Marcy-IIulsemann correspondence. § 490.
2. Interpretations. § 491.
VIII CONTENTS ()K VOLUME IH.
CllAITKR XII.
FASSP0BT8.
I. Nature and functions. § 492.
II. Authority to issiu'.
1. In the United States. § 493.
2. In fr)reifrn countries. § 494.
III. To whom is.>jue(l.
1. I.s.suance forl)i(tden to any but citizens. § 495.
2. Inhabitants of annexed or occupied territory, § 496.
'.i. Indians. § 497.
4. I\'i"sons of color. § 498.
5. Persons inchided in passport. § 499.
6. Women. § 500.
7. Minor children. § 501.
8. Declaration of intention. § 502.
IV. Applications.
1. Forms and evidence. § 503.
2. Native citizens. § 504.
3. Naturalized citizens. § 505.
4. Citizenship through parent's naturalization. § 506.
5. pA'idence of previous passport. § 507.
6. Oath of allegiance. § 508.
7. Name of apjil leant. § 509.
8. Titles, pei-sonal or official. § 510.
9. Fees. § 511.
V. Groiuids of refusal.
1. Discretion as to issuance. § 512.
2. Kenunciation of allegiance. §513.
3. Effect of foreign domicil or residence. § 514.
4. Foreign residence of citizens by birth.
(1) Persons ])orn in the United States. § 515.
(2) Persons born abroad. §516.
5. Foreign residence of naturalized citizens.
( 1 ) In country of origin. § 517.
(2) In third country. § 518.
, 6. Statement as to intention to return. § 519.
7. Connection with American business interests. § 520.
8. Missionaries. § 521.
9. Effect of extraterritoriality. § 522.
VI. Duration of passports.
1. Time limit. § 523.
2. Cancellation. § 524.
VII. International effect.
1. Evidential force. § 525.
2. Vis<:>. § 526.
3. False use. § 527.
VIII. Special i)a.«sport«. § 528.
IX. Ijocal papers.
1. European countries. § 529.
2. American countries. § 530.
3. China. § 531.
X. War regulations.
1. American civil war. § 532.
2. Other cases. § 533.
CHAPTER IX.
INTEROCEANIC COMMUNICATIONS.
I. Early Declarations of American Policy, g 336.
Instructions to delegates to Panama Congress.
Senate resolution, 1835.
House resolution, 1839.
Duty of local sovereign.
n. Isthmus of Panama.
1. Article XXXV., treaty of 1846, § 337.
(1) President Polk's message, S 338.
(2) Subsequent acts and interpretations, § 339.
(3) Negotiations of 1856-57, g 340.
(4) Negotiations of 1868-1870, i- 341.
(5) Negotiations of 1881, § 342.
2. Guarantee of neutrality and sovereignty, § 343.
3. Guarantee of free and open transit.
(1) Domestic disturbances, § 344.
Panama riot. 1856.
Subsequent discussions.
Insurrection of 1884-85, and after.
The Republic of Panama, 1903.
(2) Passports. § 345.
(3) Transit of the mails, § 346.
(4) Taxation and commercial regulations, § 847c
Tonnage taxes.
Capitation tax.
(5) Transit of troops, § 348.
(6) Fugitives from justice, § 349.
(7) Telegraphic communication, § 350.
m. Clayton-Bulwer Treaty.
1. The treaty, and its antecedents, § 351.
2. Variant interpretations.
(1) Belize, or British Hondxiras, § 352.
(2) Ruatan, and other Bay Islands. § 353.
(3) Mosquito protectorate, § 354.
Mr. Buchanan's instructions to Mr. Hise.
Action of Mr. Clayton.
Webster-Crampton arrangement.
Position of Mr. Marcy.
Buchanan-Clarendon negotiations.
3. Historical summary, 1851-1858, § 355.
4. Arrangement of 1858-1860, § 356!
5. Mr. Seward's course, § 357.
Suggestion as to Tigre Island.
Treaty with Nicaragua, 1867, and other treaties.
6. Negotiations of Mr. Fish, § 358.
Circular of 1877.
H. Doc. 551— vol 3 1
2 • INTEBOCEANIC COMMUNICATIONS. [§ 330.
III. Clayton-Bulweb Treaty — Continued
7. Messages of President Hayes, § 359.
8. Discussions of 1881-1883, t^ C60.
9. Frelinghnysen-Zavala convention, § 361.
10. President Cleveland's message, 1885, § 368.
11. Executive utterances, 1889-1894, § 363.
13. Mr. Olney's memorandxim, 1896, g 364.
13. Recommendations by President McKinley, § 365.
14. Hay-Pauncefote treaty, 1901, g 366.
Treaty of February 5, 1900.
Negotiation as to amendments.
Treaty of November 18, 1901.
Message of President Roosevelt.
Resolution of Second International American Conference.
15. Mosquito Question, since 1860, § 367.
Instructions of Mr. Fish, 1873.
Award of Emperor of Austria, 1881.
Mr. Bayard's representations.
Lord Salisbury's reply.
Mr. Foster's representations.
Insurrection of 1894, and subsequent events,
rv. American Routes and Grants, § 368.
The route by Panama.
V. Suez Canal, § 369.
VI. Corinth Canal, § 370.
VII. Kiel Canal, § 371.
I. EARLY DECLARATIONS OF AMERICAN POLICY.
§ 336.
*'A cut or canal for purposes of navigation somewhere through the
isthmus that connects the two Americas, to unite the
Instractions to del- t-» 'z! i a^i j.- /^ -n j? -i
Pacific and Atlantic Oceans, will form a proper sub-
ama Congress. 3®^^ ^^ consideration at the congress. That vast
object, if it should be ever accomplished, will be
interesting, in a greater or less degree, to all parts of the world. But
to this continent will probably accrue the largest amount of benefit
from its execution ; and to Colombia, Mexico, the Central Republic,
Peru, and tlie United States, more than to any other of the American
nations. What is to redound to *^.he advantage of all America should
be effected by common means an i united exertions, and should not
be left to the separate and unassisted efforts of any one power. . . .
If the work should ever be executed so as to admit of the passage of
sea vessels from ocean to ocean, the benefits of it ought not to be
exclusively appropriated to anj'^ one nation, but should be extended
to all parts of tlie globe upon the payment of a just compensation or
reasonable tolls."
Mr. Clay, Sec. of State, to Messrs. Anderson and Sergeant, United States
representatives to the Panama Congress, May 8, 1826, Proceedings of
the Int. Am. Conference (18^i9-18{K)). IV. 113, 143.
See, as to the neutralization of territory, supra, § 178.
§ 330.] DECLARATIONS OF POLICY. . . 3
^'Resolved, That the .President of the United States be i-espectfull}-
requested to consider the expediencyof opening nego-
Senate resolution, , . , . --i ji ^ j? i.i, j.- i
1835 tiations With the governments of other nations, and par-
ticularly with the governments of Central America and
New Granada, for the purpose of effectually protecting, by suitable
treaty stipulations with them, such individuals or companies as may
undertake to open a communication between the Atlantic and Pacific
Oceans, by the construction of a ship canal across the isthmus which
connects North and South America, and of securing forever, by such
stipulations, the free and equal right of navigating such canal to all
such nations, on the payment of such reasonable tolls as may be
established, to compensate the capitalists who may engage in such
undertaking and complete the work."
Resolution of the Senate of the United States, adopted March 3, 1835. (Sen-
ate Journal, 23 Cong. 2 sess. 238.)
In order to comply with this resolution, President Jackson appointed Mr.
Charles Biddle to make an investigation of transit routes. Mr. Biddle's
instructions bear date May 1, 1835. and are signed by Mr. Forsyth,
Secretary of State. They directed him to proceed to the San Juan
River and ascend it to Lake Nicaragua, and then to go "by the con-
templated route of communication by canal or railroad to the Pacific
Ocean. ' ' He was then to repair to Guatemala and prociire copies of any
laws passed to incorporate companies to carry the undertaking into
effect, of any conventions entered into with foreign powers on the sub-
ject, and of any plans, surveys or estimates in relation to it. From
Guatemala he was to proceed to Panama and make inquiries concern-
ing the proposed railway across the isthmus and examine the route.
He was then to repair to Bogota, and obtain any public documents
relating to the proposed railway, and particularly a copy of the law of
May 22, 1834, relating to it, a translation of which accompanied his
instructions. (Mr. Forsyth, Sec. of Sta e. to Mr. Biddle, special agent.
May 1, 1835, MS. Inst. Special Missions, I. 126.) See. also. Mr. For-
syth, Sec. of State, to Mr. De Witt, charge d'affaires at Guatemala,
May 1, 1835, MS. Inst. Am. States. XV. 16.
"Your despatches nos. 9 & 10, reached me on the 25th ultimo, with ref-
erence to Lord Palmerston's note of the 19th of October last.recpiesting
information relative to Colonel Biddle. I have to state that the only
appointment ever held by him under this Government was an informal
agency to make inquii-ies in Spanish America, — in pursuance of a reso-
lution of the Senate dated 3d March. 1835. — into the existing state of the
projects for uniting the Atlantic and Pacific Oceans througli the Isthmus
of Darien. Having executed this commis-sion. Colonel Biddle returned
to the United States in September last, and has since died at Philadel-
phia. If he has recently visited Europe, as is supposed by Lord Pal-
merston, for any purpose, either public or private, the fact is unknown
to this Department. Tlie a])ove informatitm, should it 1)e deemed of
sufficient interest, you are at liberty to communicate to Lord Pabiiers-
ton. Probably the British minister wishes to have some information
on the subject of the grant which, it is said. Colonel Biddle. assr)ciated
with certain Colombian citizens, and Britisli .subjects, hasobtaiiied from
the Colombian Government to open a communication across the Isthmus
4 INTEROCEANIC COMMUNICATIONS. [§336.
of Darien by steamboats and railroad. In tliat grant this Government
hiis no interest or concern. The privileges and conditions of it are indis-
tinctly known to this department, but have been, without doubt, com-
municated to His Britannic Majesty's Government by their oflBcial rep-
resentative or agent at Bogota." (Mr, Forsyth, Sec. of State, to Mr.
Stevenson, min. to England, Jan. 5, 1837, MS. Inst. Great Britain,
XIV. 232.)
Sept. 23, 1836, Mr. Forsyth instructed Mr. McAfee, charge d'affaires of
the United States at Bogota, " to disclaim all connection with the proj-
ect" on the part of the United States. (Cong. Globe, 32 Cong. 3 sete.,
App., vol. 27, p. 251.)
" Territories or jwrtions of territory belonging to a state other than those
to which a permanent and conventional neutrality is assured, may,
by an international act or in an international interest, be sheltered
from acts of war. Such are said to be neutralized. This neutrality or
neutralization bears only on the territory, on the soil, and exercises no
direct influence on the generality of rights of the sovereign territorial
state, nor on the population." (Rivier, Principes du Droit des Gens, I.
162.)
In 1839, the canal question was taken up in the House of Represent-
atives, on a memorial of merchants of New York and
°'^*^m9 ^ ^°° Philadelphia, on which an elaborate report was made
by Mr. Mercer, from the Committee on Roads and
Canals. The report in conclusion proposed a resolution that the
President should be requested "to consider the expediency of opening
or continuing negotiations with the governments of other nations,
and particulariy with those the territorial jurisdiction of which
comprehends the Isthmus of Panama, and to which the United States
have accredited ministers or agents, for the purpose of ascertaining
the practicability of effecting a communication between the Atlantic
and Pacific oceans, by the construction of a ship canal across tlie
isthmus, and of securing forever, bj^ suitable treaty stipulations, the
free and equal right of navigating such canal to all nations."
This resolution was unanimously agreed to by the House.
Cong. Globe, 32 Cong. 3 sess., App., vol. 27, p. 251. See Message of Presi-
dent Van Buren, March 12, 1838, with report of Mr. Forsyth, Sec. of
State, and accompanying correspondence, in relation to the expediency
of opening negotiations with other nations with a view to the construc-
tion of a ship canal across the Isthmus of Darien. (H. Ex. Doc. 228,
25 Cong. 2 sess. )
"The progress of events has rendered the interoceanic routes across
the narrow portions of Central America vastly impor-
u y 0 oca sov- ^^^^^ ^^ ^^^ commercial world, and especially to the
United States, whose possessions extending along the
Atlantic and Pacific coasts demand the speediest and easiest modes
of communication. While the just rights of sovereignty of the States
occupying this region should always be respected, we shall expect
that these rights will be exercised in a spirit befitting the occasion
§ 337.] ISTHMUS OF PANAMA : TREATY OP 1846. 5
and the wants and circumstances that have arisen. Sovereignty has
its duties as well as its rights, and none of these local governments,
even if administered with more regard to the just demands of other
nations than they have been, would be permitted, in a spirit of Eastern
isolation, to close these gates of intercourse on the great highways of
the world, and justify the act by the pretension that these avenues of
trade and travel belong to them, and that they choose to shut them,
or, what is almost equivalent, to encumber them with such unjust
regulations as would prevent their general use."
Mr. Cass, Sec. of State, to Mr. Lamar, min. to Cent. Am., July 25, 1858,
Correspondence in relation to the Proposed Interoceanic Canal (Wash-
ington, 1885), 281.
II. ISTHMUS OF PANAMA.
1. Article XXXV., Treaty of 1846.
§ 337.
"The United States of America and the Republic of New Granada,
desiring to make as durable as possible the relations which are to be
established between the two parties by virtue of this treaty, have
declared solemnly, and do agree to the following points:
"1st. For the better understanding of the preceding articles, it is
and has been stipulated between the high contracting parties, that the
citizens, vessels and merchandise of the United States shall enjoy in
the ports of New Granada, including those of the part of the Granadian
territory generally denominated Isthmus of Panama, from its southern-
most extremity until the boundary of Costa Rica, all the exemptions,
privileges and immunities concerning commerce and navigation,
which are now or may liereafter be enjoyed by Granadian citizens,
their vessels and mercliandise; and that this equality of favors shall
be made to extend to the pas.seugers, correspondence and merchandise
of the United States, in tlieir transit across the said territory, from
one sea to the other. Tlie Government of New Granada guarantees
to the Government of the United States that the right of way or transit
across the Isthmus of Panama upon any modes of communication that
now exist, or that may be hereafter constructed, shall be open and
free to tlie Government and citizens of the United States, and for tlic
transportation of any articles of produce, manufactures or merchan-
dise, of lawful commerce, belonging to tlie citizens of the United
States; that no other tolls or cliarges sliall be levied or collected upon
the citizens of the United States, or their said merchandise thus pass-
ing over any road or canal that may be made by the Government
of New Granada, or by the authority of the same, than is, under
like circumstances, levied upon and collected from the Granadian
citizens; that any lawful produce, manufactures or merchandise
belonging to citizens of the United States, thus passing from one sea
6 INTEKOCEANIC COMMUNICATIONS. [§ 337.
to the other, in oithtM- diiectioii, for the purpose of exportation to any
oth(u- foreiu;!! coimti-y, shall not be liable to any import duties what-
ever; or, havinij paid such duties, ihoy shall be entitled to drawback
upon their exportation; nor shall the citizens of the United States bo
liable to any duties, tolls or (Oiar<?es of any kind, to which native citi-
zens are not subjected for thus passing the said Isthmus. And, in
order to secure to themselves the tranquil and constant (uijoyment of
these advantages, and as an especial compensation for the said advan-
tages, and for the favors they have acquired by the 4th, 5th, and Oth
articles of this treaty, the ITnited States guarantee, i)ositively and
efficaciously, to New (iranada, by the present stipulation, the perfect
neutrality of the before-mentioned isthmus, with the view that the
free transit from the one to the other sea may not be interrupted or
embarrassed in any future tinie while this treaty exists; and, in conse-
quence, the United States also guarantee, in the same manner, the
rights of sovereignty and property which New Granada has and pos-
sesses over the said territory.
" 2d. The present treaty shall remain in full force and vigor for the
term of twenty years from the day of the exchange of the ratifications;
and from the same day the treaty that was concluded between the
United States and Colombia, on the thirteenth of October, 1824, shall
cease to have effect, notwithstanding what was disposed in the first
point of its 31st article.
"3d. NotAvithstanding the foregoing, if neither party notifies to the
other its intention of reforming any of, or all, the articles of this
treaty twelve months before the expiration of the twenty years stipu-
lated above, the said treaty shall continue binding on both i)arties
beyond the said twenty years, until twelve months fiom the time that
one of the jmrties notifies its intention of proceeding to a refoi-m.
" 4th. If any one or more of the citizens of either party shall infringe
any of the articles of this treaty, such citizens shall be held personally
responsible for the same, and the harmony and good correspondence
between the nations shall not be inteiTupted thereby; each parly
engaging in no way topi'otect the offender, or sanction such violation.
"oth. If unfortunately any of the articles contained in this treaty
should be violated or infringed in any way whatev'er, it is exj)ressly
stipulated that neither of the two contracting parties shall ordain or
authorize any acts of leprisal, nor shall <leclare war against the other
on complaints of injuries or damages, until the said party considering
itself offended shall have laid before the other a statement of such
injuries or damages, verifi(Ml by competent proofs, demanding justice
and satisfaction, and the same shall have been denied, in violation of
the laws and of international right.
"0th. Any special or remarkable advantages that one or the other
powei" may <'njoy fi-om the fon^going stipulation, are and ought to be
always understood in virtues and as in compensation of the obligations
§ 338.] ISTHMUS OF PANAMA : TREATY OF 1846. 7
they have just contracted, and which liave been specified in the first
number of this article."
Art. 35, treaty between the United States and New Granada [now Republic
of Colombia] , Dec. 12, 1846. (Treaties and Conventions, 204-."). )
The treaty was approved by the United States Senate, June 3, 1848, by the
following vote:
Yeas — Messrs. Atchison. Atherton, Badger, Bagby. Benton, Berrien. Bor-
land, Bradbury, Bright, Butler, Calhoun, Davis of Mississippi, Dickin-
son, Dix, Downs, Foote, Hannegan, Houston, Huntev, Lewis, Moore,
Niles, Rusk, Sebastian, Spruance, Turney, Underwood, Westcott, and
Yulee— 29.
Nays — Messrs. Baldwin, Clarke, Davis of Massachusetts. Dayton, Hale,
Miller, and Upham— 7. (Exec. Journal, VII. 424.)
" Colonel Sevier, the chairman of the Committee on Foreign Relations,
informed me that a protracted debate would have arisen on the 3.")th
article of the treaty, containing the guarantee on the pai't of the United
States to New Granada of the neutrality of the Isthmus of Panama and
her sovereignty over the same [if the consideration of the treaty had not
been postponed till December 1847]; and for this reason the Senate, at
so late a period of the session, were unwilling to enter upon its discus-
sion. He entertains fair hopes, notwithstanding:, that it will be ratified
at the new session by a constitutional majority." (Mr. Buchanan, Sec.
of State, to Mr. Bidlack, charge d'affaires to Colombia. March 25, 1847,
MS. Inst. Colombia, XV. 112.)
The Republic of New Granada subsequently became by constitutional
changes the United States of Colombia and later the Republic of Colom-
bia. These internal changes did not impair the continuing obligation
of the treaty of 1846.
The ratifications of the treaty were exchanged June 10, 1848; and, as appears
by the text of art. 35, it was to remain in force twenty years and there-
after, subject to its being ''reformed" in the manner therein pointed
out. Jan. 23, 1867, Gen. Salgar, the Colombian ministerin Washington.
stated in a note that he had been instructed to enter on a negotiation
for the modification of the treaty. It does not ajipear, however, that
the proposed discussion ever took place, and the two governments con-
curred in the view that the treaty remained in force. (Mr. Fish. Sec.
of State, to Mr. Perez, Colombian inin.. Feb. 8. 1871; Mr. Perez to Mr.
Fish, Feb. 13, 1871, and April 15, 1871; Mr. Fish to Mr. Perez, May 27,
1871: For. Rel. 1871, 243-248.)
See report of Mr. Biichanan. Sec. of State, May 7, 1846, with correspondence
with United States ministers abroad on the subject of a shii) canal across
the Isthmus of Panama, and a paper by Mr. Henry Wheaton on water
communication between Euroi)e and the East Indies via Egypt and
the Red Sea, and between the Atlantic and Pacific via Tehtiau tepee-,
Nicaragua, Darien, and Rio Atrato and Rio Choco. (S. Ex. Doc. 335),
29 Cong. 1 sess. )
(1) PRESIDENT POLK'S MESSAGE.
§ 338.
"I transmit to the Senate, for their advice with regard to its ratifi-
cation, 'A general treaty of ijcace, amity, navigation and comiiierco
between the United States of America and the Republic of New
8 INTEROCEANIC COMMUNICATIONS. [§338.
Granada,' concliulod at Bogota on tlic liith Decemljer, last, by
Benjamiu A. IJidlack, cliargc d'afTaiies of tho United States, on tlieir
part, and by Manuel Maria Mallarino, secretary of state and foreijrn
relations, on the part of that Republic.
"It will be perceived, by the 35th article of this treaty, that New
Granada proposes to guarantee to the Government and citizens
of the United States the right of passage across the Isthmus of Panama
over the natyral roads and over any canal or railroad which may l)e
constructed to unite the two seas, on condition that the United States
shall make a similar guarantee to New Granada of the neutrality of
this portion of her territory and her sovereignty over the same.
"The re.asons which caused the insertion of this important stipula-
tion in the treaty will be fully made known to the Senate by the
accompanying documents. From these it will appear that our charge
d'affaires acted, in this particular, upon his own responsibility and
without instructions. Under such circumstances it became my duty
to decide whether I would submit the treaty to the Senate; and after
mature consideration, I have determined to adopt this course.
"The importance of this concession to the commercial and political
interests of the United States cannot easily be overrated. The route
by the Isthmus of Panama is the shortest between the two oceans,
and from the information lierewith communicated, it would seem to
be the most practicable for a railroad or canal.
"The vast advantages to our commerce which would result from
such a communication, not only with the west coast of America, but
with Asia and the islands of the Pacific, are too obvious to require
any detail. Such a passage would relieve us from a long and dan-
gerous navigation of more than nine thousand miles around Cape
Horn, and render our communication with our own possessions on
the northwest coast of America comparatively easy and speedy.
"The communication across the Isthmus-has attracted the attention
of the Government of the United States ever since the independence
of the South American Republics. On the 3d of March, 1835, a reso-
lution passed the Senate in the following words: [Here follows the
resolution, as given supra.]
"No person can be more deeply sensible than myself of the danger
of entangling alliances with any foreign nation. That we should
avoid such alliances, has become a maxim of our policy consecrated
by the most venerated names which adorn our history and sanctioned
by the unanimous voice of the American people. Our own experience
has taught us the wisdom of this maxim in the onlj'^ instance, that of
the guarantee to France of her American possessions, in which we have
ever entered into such an alliance. If, therefore, the very peculiar
circumstances of the present case do not greatly Impair if not
altogether destroy the force of this objection, then we ought not to
enter into the stipulation, whatever may be its advantages. The
§ 338.] ISTHMUS OF PANAMA : TREATY OF 1846. 9
gene rill ccnsideratioiis whicli litive induced nie to tiausniit tlie treaty
to the Senate for their advice may be summed up in the following
particulars:
"1. The treaty does not propose to guarantee a territory to a foreign
nation in which the United States will have no common interest with
that nation. On the contrary, we are more deeply and directly inter-
ested in the subject of this guarantee than New Granada herself or
any other country.
"2. The guarantee does not extend to the territories of New Gi-anada
generally, but is confined to the single province of the Isthmus of
Panama, where we shall acquire by the treaty a common and co-ex-
tensive right of passage with herself.
"3. It will constitute no alliance for any political object, but for a
purely commercial purpose, in which all the navigating nations of the
world have a common interest.
"4. In entering into the mutual guarantees proposed by the
35th article of the treaty, neither the Government of New Granada
nor that of the United States has any narrow or exclusive views. The
ultimate object, as presented by the Senate of the United States in
their resolution [of March 3, 1835] to which I have already referred,
is to secure to all nations the free and equal right of passage over the
Isthmus. If the United States, as the chief of the American nations,
should first become a party to this guarantee, it can not be doubted,
indeed it is confidently expected by the Government of New Gra-
nada, that similar guarantees will be given to that Republic b}" Gi-eat
Britain and France. Should the proposition thus tendered be rejected,
we maj' deprive the United States of the just influence which its accept-
ance might secure to them, and confer the glory and benefits of being
the first among the nations in ctmcluding such an arrangement upon
the Government either of Great Britain or France. That either of
these Governments would embrace the offer can not be doubted ; because
there does not appear to be any other effectual means of securing to
all nations the advantages of this important passage but the guarantee
of great commercial powers that the Isthmus shall be neutral terri-
tory. The interests of the world at stake are so important that the
security of this passage between the two oceans can not be sulTcred
to depend upon the wars and revolutions which may arise among
differ 3nt nations.
" Besides, such a guarantee is almost indispensable to the construc-
tion of a railroad or canal across the territoi-y. Neither sovereign
states nor individuals would expend their capital in the construc-
tion of these expensive works without some such security for their
investments.
"The guarantee of the sovereignty of New Granada over the Isth-
mus is a natural consequence of the guarantee of its neutrality, and
there does not seem to be any other practicable mode of securing the
10 INTEROCEANIC COMMUNICATIONS. [§330.
neutrality of thiw t-i'i-ritory. New (iranada would not consent to yield
up this province in order that it might become a neutral state, and if
she should, it is not sufficiently populous or wealthy to establish and
maintain an independent sovereignty. l?ut a civil government must
exist there in order to protect the works which shall l>e constructed.
New Granada is a power which will not excite the jealousy of any
nation. If Great Britain, France, or the United States held the sov-
ereignty over the Isthmus other nations might apprehend that in
case of war the Government would close up the passage against the
enemy; but no such fears can ever be entertained in regard to New
Granada.
"This treaty removes the heavy discriminating duties against us in
the ports of New Granada which hav^e nearly destroyed our commerce
and navigation with that Republic, and which we have been in vain
endeavoring to abolish for the last twenty years.
*'It may be proper also to call the attention of the Senate to the
25th article of the treaty, which prohibits privateering in case of war
between the two Republics; and also to the additional article which
nationalizes all vessels of the parties which ' shall be provided by the
respective Governments with a patent issued according to its laws,'
and in this particular goes further than any of our former treaties."
President Polk, message to the Senate. Feb. 10, 1847, Executive Journal,
VII. 191-19.3.
(2) SUBSEQUENT ACTS AND INTERPRETATIONS.
§ 3.39.
Nov. 1, 1849, Mr. Thomas W. Ludlow, president of the Panama
Railroad Companj', requested that Mr. Lawrence,
s mian neutra - jjj^ jj^^j States minister at London, might be instructed
ity; action of
Mr Clayton ^^ Cooperate with the minister of New Granada in
that capital in obtaining from the liritish Gov-ern-
ment a guaranty of the neutrality of the Isthmus of Panama similar
to that contained in Art. XXXV. of the treaty of 1846. Mr. Lawrence
was instructed accordingly. It was in his instructions declared to be
"of the utmost importance, especially in consideration of the opin-
ions expressed by Lord Palmerston with reference to the Spanish
American States who are delinquent debtors of British subjects, that
the I5ritish Government should guarantee the neutrality of the Isth-
mus of Panama as amply as this has been done by the United States.
For this purpose, it would he preferable that Great Britain and New
Granada should themselves enter into treaty stipulations. ... If,
however, you shall ascertain that th(» British Government would not
enter into such a treaty with New Granada, you may then sound Lord
Palmerston as to the disposition of his Government to conclude one
with the United States for the same jjurpose."
§ 339.] ISTHMUS OF PANAMA : TREATY OF 1846. 11
Mr. Clayton, Sec. of State, to Mr. Lawrence, min. to England, Dec. 13,
1849, MS. Inst. Gr. Br. XVI. 75.
See, also, Mr. Clayton, Sec. of State, to Mr. Foote, min, to Colombia, Dec.
15, 1849, instructing Mr. Foote to urge upon the New Granadian Gov-
ernment to take measures to negotiate with Great Britain. " The
guaranty of Great Britain," said Mr. Clayton, "is necessary for the
seciirity of the capital to be invested in the railroad, and is of great and
obvious importance to the United States." (MS. Inst. Colombia, XV.
133.)
With his instructions to Mr. Lawrence, of Dec. 13, 1849, supra, Mr. Clayton
enclosed, with an expression of approval, a copy of a memorandum by
Mr. James A. Hamilton, addressed to President Taylor, on the neutral-
ity of the Isthmus of Panama. For the text of this memorandum, see
Reminiscences of James A. Hamilton, 398.
Instnictions similar to those sent to Mr. Lawrence were also sent by Mr. Clay-
ton to Mr. Rives, minister to France, Jan. 26, 1850, with reference to
possible negotiations with the French Government. (MS. Inst. France,
XV. 125.)
See report of Mr. Butler King, Com. on Naval Affairs, Jan. 16, 1849, on the
subject of a' railroad across the Isthmus of Panama, H. Report 26,30
Cong. 2 sess.; rejwrt of Mr. Rockwell, Select Committee, Feb. 20, 1849,
on interoceanic communications, H. Report 145, 30 Cong. 2 sess.
See, also. Art. VIII. of the Clayton-Bulwer treaty, infra, §§351-355.
"I have to acknowledge the receipt of your letter of the 10th instant,
stating that you are the holder of a grant from the Republic of New
Granada, for the construction of an interoceanic canal across that
Republic between the rivers Atrato and San Juan, and inquiring
whether pursuant to the article of the treaty between the United
States and Great Britain of the 19th of April, 1850, you can claim
protection for the proposed work. In reply I have to inform you that
the article referred to provides for future treaty stipulations between
the parties with a view to the protection of a canal across the Isthmus
of Panama which would, it is presumed, include the route for which
you hold the grant referred to. There would be no objection on the
part of this Government to enter into such stipulations, and none can
be anticipated on the part of the British Government. As respects
the Government of New Granada, it is believed that the stipulations
in the 35th article of the treaty between the United States and that
Republic, of the 12th December, 184G, would afford you ample pro-
tection."
Mr. Webster, Sec. of State, to Mr. Belknap, March 13. 1852, 40 MS. Dom.
Let. 15.
"The proposition in your lordship's letter of the 24th ultimo for a
joint convention between tlie United States, England,
and France for the purpose of securing the freedom
and neutrality of the transit route over the Isthmus
of Panama has be<Mi submitted to tlie President, and I am now
instructed to communicate to you his views concerning it.
12 INTEROCEANIC COMMUNICATIONS. [§ 339.
'* The Prtisidont fully appreciates the importance of that route to
the comniercial nations of the world, and the great advantage which
must result from its entire security both in peace and war, but he
does not perceive that any new guarantee is necessary for this pur-
pose on the part of tlie United States.
" By the treaty concluded with New Granada on the 12th of Decem-
ber, 1846, to which your lordship has referred, this Government guar-
anteed for twenty years the neutrality of the Isthmus, and also the
rights of sovereignty and property over it of New Granada. A simi-
lar measure on the part of England and France would give additional
security to the transit, and would be regarded favorably, therefore,
by this Government. But any participation by the United States in
such a measure is rendered unnecessary by the arrangement already
referred to, and which still remains in lull force. It would be incon-
sistent, moreover, with the established policy of this country to enter
into a joint alliance with other powers, as proposed in your lordship's
note.
"The President is fully sensible, however, of the deep interest
which must be felt by all commercial nations, not only in the Panama
transit route, but in the opening of all the various passages across
the Isthmus by which union of the two oceans may be practically
effected. The progress already effected in these works has opened a
new era in the intercourse of the world, and we are j^et only at the
commencement of their results.
"It is important that they should be kept free from the danger of
interruption either by the Governments through whose territories
they pass or by the hostile operations of other countries engaged
in war.
" While the rights of sovereignty of the local governments must
always be respected, other rights also have arisen in the progress of
events involving interests of great magnitude to the commercial
world, and demanding its careful attention, and, if need be, its
efficient protection. In view of these interests, and after having
invited capital and enterprise from other countries to aid in the open-
ing of these great highways of nations under pledges of free transit
to all desiring it, it cannot be permitted that these Governments
should exercise over them an arbitrary and unlimited control, and
close them or embarrass them without reference to the wants of com-
merce or the intercourse of the world. Equally disastrous would it
be to leave them at the mercy of every nation, which, in time of war,
might find it advantageous, for hostile purposes, to take possession
of them and either restrain their use or suspend it altogether.
"The President hopes that by the general consent of the maritime
powers all such difficulties may be prevented, and the interoceanic
lines, with the harbors of immediate approach to them, may be
§ 339.] ISTHMUS OF PANAMA : TREATY OF 1846. 13
secured beyond iuterruption to the great purjioses for which they
were established."
Mr. Cass, Sec. of State, to Lord Napier, Brit, min., Sept. 10, 1857, Corre-
spondence in relation to the Proposed Interoceanic Canal (Washington,
1885) , 153.
Lord Napier's note, to which the foregoing is a reply, is given at the same
place.
June 26, 1862, General Ilerran, Colombian minister at Washington,
invoked the interposition of the United States for
■ the protection of the Isthmus of Panama against the
revolutionary chief, Mosquera. Mr. Seward, in a note
to Mr. Adams, then minister of the United States in London, July
11, 1862, said: "This Government has no interest in the matter dif-
ferent from that of other maritime powers. It is willing to interpose
its aid in execution of its treaty and for the benefit of all nations."
He therefore directed Mr. Adams, and also Mr. Dayton, minister to
France, to confer with the governments to which they were respec-
tively accredited, as to the action to be taken by the United States,
either alone or jointly with those governments, " in guaranteeing the
safety of the transit and the authority of the Granadian Confedera-
tion, or either of these objects."
Lord Russell, when Mr. Adams brought the subject to his notice,
stated that, so far as his information went, no attempt had been made
to obstruct the free transit of the Isthmus, but added that, on the
Impi^ening of an actual derangement of communication, the British
Government would readil3^ cooperate with the United States in the
measures that might be tliought necessary to make good the privileges
secured by the guarantee. Mr. Thouvenel replied, in behalf of the
French Government, in a similar sense. He also intimated an opin-
ion that Gen. Ilerran did not represent the Government actually in
power in Colombia.
Mr. Seward, Sec. of State, to Mr. Adams, min. to England, July 11, 1863, Cor.
in relation to the Proposed Interoceanic Canal (Washington, 1885), 6.
The replies of Mr. Adams and Mr. Dayton, dated, respectively, Aiig. 1 and
Aug. 29, 1863, are given in the same document, pp. 7-8.
March 20, 1878, Mr. Lucien Napoleon Bonaparte Wyse obtained
from the Government of Colombia a concession for the
The Wyse conces- - ^ • ^ • j. i /^i i i •
construction of an interoceanic (^anal across Colombian
sion.
territory. The concession was approved by the C-olom-
bian Congress, May 18, 1878. It was obtained in the name of the
International Interoceanic Canal Association, of Pai-is. The grantees
undertook, liowever, to form, under tlie immediate i)rotectioii of the
Colombian Government, a joint-stock company, wliich should take
the name of The l^niversal Interoceanic Canal Association, and it was
agreed that the enterprise should "always be kept free from political
influences."
14 INTEROCEANIC COMMUNICATIONS. [§ 339.
Correspondence in relation to the Proposed Interoceanic Canal (Washington,
1885). 86-98.
In April, 1879, Admiral Ammen, U. S. N., and Civil Engineer A. C. Meno-
cal, U. S. N.. were appointed commissioners of the United States to
attend an international conference which was to assemble at Paris on
tfte mtbet ti»» Jelk»«ing, month, under the auspices of the Geographical
Smriety of Paris, to consider variorre pi'ojwetefora.caaal across the Ameri-
can Isthnnis. They i^ossessed, however, no official j)owers m iTTiiliii—lii
functions, and were not authorized to state what would be the decision
of the United States on any of the points involved. The conference itself
was understcjod to be one, not of diplomatic representatives of the respec-
tive governments, but of scientific men and public officers whose exi)eri-
ence and research rendered it desirable that they should exchange \news.
(Mr. Evarts, Sec. of State, to Admiral Ammen, April 19, 1879, 127 MS.
Dom. Let. 560.)
"By the treaty of 184(5 the United States are guarantors of the neu-
trality of any interoceanic canal through the Isthmus
"f' ° t ^ ^^ I*anama, and of the sovereignty of the Republic
of Colombia over the territory through which it passes.
If we are right!}' informed, no other Government has l)een willing to
come into any such treaty relations with Colombia, and to-day such
a canal by whomsoever completed would need to rest upon this stipu-
lated protection of the United States, and should the United States
recognize their rights under this concession, both its projectors and
the Government of Colombia would be authoi'ized under certiain
contingencies to call upon and be wholly dependent upon this
Government for the fulfillment of this obligation. Under such
circumstances the United States would have considered it as the
manifestation of a just and friendly spirit if the Government of Colom-
bia had furnished us timely information of the proposed concession, and
thus enabled us to judge whether the conditions under which our guar-
antee had been made had been preserved with due consideration both
of the rights wliich that guarantee confers and the obligations which
it imposes. . . .
" But it cannot be overlooked that by the 35th article of the treaty of
1846 the United States has not only, 'in order to secure to themselves
the tranquil and constant enjoyment' of the advantages of tliat treaty,
undertaken to ' guarantee positively and efficaciously to New GranjwJa'
' the perfect neutrality of tlie before-mentioned Isthmus,' but they have
further obliged themselves to 'also guarantee in the same manner the
rights of sovereignty and property which New Granada lias and pos-
sesses over the said territory.' While, therefore, the United States
have perfect confidence in these representations, as well asin the strong
friendship of the French Government, it can scarcely be denied that
such a concession to foreign subjects would introduce new questions of
relative riglits and interests affecting both the sovereign and proprie-
tary rights of the (Tovernment of Colombia and such as would seriously'
enlarge the responsibilities of our treaty guarantee; and this Govern-
§339.] ISTHMUS OF PANAMA: TREATY OF 1846. 15
ment feels that it Is not unreasonable in expecting that any concession
involving such consequences should be a subject of joint consideration
by, and that its details can scarcely be settled without a preliminary
agreement between, the Governments of Colombia and the United States
as to their effect upon existing treaty stipulations. ..."
The interest of the United States in the opening of a ship-canal on the
Isthmus is peculiarly great. "Our Pacific coast is so situated that, with
our railroad connections, time (in case of war) would always be allowed
to prepare for its defense. But with a canal through the Isthmus the
same advantage would be given to a hostile fleet which would be given
to friendly commerce; its line of operations and the time in which war-
like demonstration could be made, would be enormously shortened.
All the treaties of neutrality in the world might fail to be a safeguard
in a time of great conflict. . . .
" This Government cannot consider itself excluded, by any arrange-
ments between other powers or individual to which it is not a party,
from a direct interest, and if necessary a positive supervision and inter-
position in the execution of any project which, by completing an inter-
oceanic connection through the Isthmus, would materially affect its
commercial interests, change the territorial relations of its own sover-
eignty, and impose upon it the necessity of a foreign policy, which,
whether in its feature of warlike preparation or entangling alliance,
has been hitherto sedulously avoided."
Mr. Evarts, Sec. of State, to Mr. Dichman, rain, to Colombia, Aprill9,^1880,
MS. Inst. Colombia, XVII. 154, 157, 160, 163.
See the following documents:
Steps taken by the United States to promote the constmction of an inter-
oceanic canal, President's message, Jvme 13, 1879, H. Ex. Doc. 10, 46
Cong. 1 sess.
Trade between Atlantic and Pacific coasts, report of Treasury Department,
March 15, 1880, H. Ex. Doc. 61, 46 Cong. 3 sess.
Further letter from the Treasury on the same subject. May 15, 1880, H. Ex.
Doc. 86, 46 Cong. 2 sess.
Testimony taken before select committee in regard to the selection of a
suitable route, Feb. 25, 1881. H. Mis. Doc. 16, 46 Cong. 3 sess.
The Monroe Doctrine, report of Com. on Foreign Affairs, Feb. 14. 1881, H.
Report 224, 46 Cong. 3 sess.; minority report, March 4, 1881. id., part 2.
Report of the select committee on the interoceanic ship-canal, declaring
that the United States will assert and maintain their right to possess
and control any such canal, no matter what the nationality of its cor-
porators or the sottrce of their capital may be. Mar. 3, 1881, H. Report
390, 46 Cong. 3 sess.
Resolution declai-ing that the consent of the United States is a necessary
condition precedent to the execution of any canal, Feb. 16, 1881, Senate
Mis. Doc. 42, 46 Cong. 3 sess.
Resolution, April 27, 1881, S. Mis. Doc. 18, 47 Cong., special sess.
Mr. Bxirnside, Com. on For. Rel.. Ma.v 16, 1881. reporting fav()ral)ly a reso-
lution declaring that the United States will insist that its consent is a
necessary condition i)recedent to tlie execution of ai-v way for the
transit of ships, and to the adoption of rules and regulations under
16 INTEROCEANIC COMMUNICATIONS. [§ 389.
which other nations may use it in time of peace or of war, S. Rep. 1,
47 Cong, sjx^ciiil sess.
Senatt; resolution asking for information as to whether the Government
had taken any action for the protection of United States intei'ests in the
projected canal, intnwluced Oct. 13, and passed Oct. 14, 1881, Cong.
Record, 47 Cong, special sess. 522.
*'It is, however, deemed prudent to instruct you, with all needful
reserve and discretion, to intimate to the Colombian Government thjlt
any concession to Great Britain or any other foreign power, lookinjj;
to tlie surveillance and possible strategic control of a highway of
whose neutrality we are the guai'antors, would be looked upon by Ihe
Government of the United States as introducing interests not com-
patible with the treaty relations which we maintain with Colombia."
Mr. Evarts, Sec. of State, to Mr. Dichman, min. to Colombia, July 81,
1880, MS. Inst. Colombia, XVII. 181, in relation to a rumor that the
British Government had been examining the Island of Gonzales, on
the Pacific Coast of the Isthmus, with a view to establishing a naval
station there.
"The relations between this government and that of the Unit-ed
States of Colombia have engaged public attention
ess^e 0 resi- ^^^pjjjo, q^q ^^^^ year, mainly by reason of the project
dent Hayes, 1880. „ ^. ^ . , ^, t ., \. ^
of an mteroceanic canal across the Isthmus ot Pan-
ama, to be built by iirivate capital under a concession from the
Colombian Government for that purpose. The treaty obligations
subsisting between the United States and Colombia, by which we
guarantee the neutrality of the transit and the sovereignty and
property of Colombia in the isthmus, make it necessary that the con-
ditions under which so stupendous a change in the region embraced
in this guarantee should be effected — transforming, as it would, this
isthmus, from a barrier between the Atlantic and Pacific oceans, into
a gateway and thoroughfare between them for the navies and the mer-
chant ships of the world — should receive the approval of this govern-
ment, as being compatible with the discharge of these obligations on
our part, and consistent with our interests as the principal commercial
power of the Western Hemisphere. The views which I expressed in
a .special message to Congress in March last, in relation to this project,
I deem it my duty again to press upon your attention. Subsequent
consideration has but confirmed the oijinion 'that it is the right and
duty of the United States to assert and maintain such supervision
and authority over any interoceanic canal across the isthmus that
connects Nofth and South America as will protect our national
interests.'"
President Hayes, annual message, Dec. 6, 1880. (For. Rel. xii.)
For the special message of March 8, 1880, above mentioned, and the report
of Mr. Evarts, as Secretary of State, see S. Ex. Doc. 112. 46 Cong. 2 sess.
See, aLso, President Hayes" annual message. Dec. 1, 1879, as to a projected
treaty between the United States and Colombia.
§339.] ISTHMUS OF PANAMA: TREATY OF 1846. 17
For the Wyse concession of March, 1878. for the construction of a canal
across the Isthmns of Panama, see Correspondence in relation to the
Proposed Interoceanic Canal (Washington, 1885), 86.
See Mr. Foster, Sec. of State, to Mr. Coughlin, Dec. 23, 1892, and to Mr.
Abbott, Feb. 8, 1893, MS. Inst. Colombia, XVIII. 348, 359, concerning
the extension or substitution of the Panama Canal concession.
"The United States recognizes a proper guarantee of neutrality as
essential to the construction and successful operation
'of any highway across the Isthmus of Pamana, and
in the last generation every step was taken by this
government that is deemed requisite in the premises. The necessity
was foreseen and abundantly provided for, long in advance of any
possible call for the actual exercise of power.
"In 1846 a memorable and important treaty was negotiated and
signed between the United States of America and the Republic of New
Granada, now the United States of Colombia. By the thirty-fif th article
of that treaty, in exchange for certian concessions made to the United
States we guaranteed ' positively and efficaciously' the perfect neutral-
ity of the isthmus and of any interoceanic communications that
might be constructed upon or over it for the maintenance of free transit
from sea to sea; and we also guaranteed the rights of sovereignty
and property of the United States of Colombia over the territory of
the isthmus as included within the borders of the State of Panama.
"In the judgment of the President this guarantee, given by the
United States of America, does not require re-inforcement, or acces-
sion, or assent from any other power. In more than one instance
this government has been called upon to vindicate the neutrality
thus guaranteed, and there is no contingencj^ now foreseen or appre-
hended in which such vindication would not be witliiu the power of
this nation. . . .
"The great European powers have repeatedly united in agreements
such as guarantees of neutrality touching the political condition of
stat/cs like Luxembourg, Belgium, Switzerland, and parts of the
Orient, where the localities were adjacent or where the interests
involved concerned them nearly and deeply. Recognizijig these facts
the United States has never offered to take part in such agreements
or to make any agreements supplementary to them.
While thus observing the strictest neutrality with respect to com-
plications abroad, it is the long-settled conviction of this government
that any extension to our shores of the political system by which the
great powers have controlled and determined events in Europe would
be attended with danger to the peace and welfare of this nation."
Mr. Blaine. Sec. of State, to Mr. Lowell, .Time 24, 1881. For. Rel. 1881. 537.
Mr. Lowell was instructed to take an early opportunity to confer with
Earl Granville and to read to him the foregoing instruction, and. if he
should desire it, leave with him a copy of it. (Mr. Blaine, Sec. of
H. Doc. 551— vol 3 2
18 INTEROCEANIC COMMUNICATIONS. [§ 339.
State, to Mr. Lowell, min. to England, June 25, 1881, MS. Inst. Great
Britain, XXVI. 176.)
A similar instruction was sent to the minister of the United States at
Paris. (Mr. Blaine, Sec. of State, to Mr. Noyes, min. to France, Jnne
25, 1881, MS. Inst. France, XX. 308.)
In a commnuication to Mr. Hoppin, United States charge, November 10,
1881, Lord Granville, replying to Mr. Blaine's repre.sentations, adverted
to the fact that Mr. Blaine had disclaimed an intention on the part of
the Government of the United States to initiate a discussion on the
subject, and added: '"I should wish, therefore, merely to point out to
yon that the position of Great Britain and the United States, with ref-
ence to the canal, irrespective of the magnitude of the commercial rela-
tions of the former power with countries to and from which, if completed,
it ■will form a highway, is determined by the engagements entered into
by them respectively in the convention which was signed at Washington,
on the 19th of April, 18.50. commonly known as the Clayton-Bulwer
Treaty, and Her Majesty's Government rely with confidence upon the
observance of all the engagements of that treaty. ' ' (For. Rel. 1881 , 549. )
For a further discussion of the (question of the Panama Canal and the Clayton-
Bulwer treaty, see Mr. Blaine. Sec. of State, to Mr. Lowell, min. to Eng-
land, Nov. 19, 1881, For. Rel. 1881,554; same to same, Nov. 29, 1881, id. 563;
Mr. Lowell to Mr. Blaine, Dec. 27, 1881, Correspondence in relation to
the Proposed Interoceanic Canal (Washington, 1885), 339; Lord Gran-
ville to Mr. West, British min. at Washingt<m, Jan. 7 and 14, 1SH2, For.
Rel. 1882, 302, 305; Mr. Frelinghuysen, Sec. of State, to Mr. Lowell,
May 8, 1882, For. Rel. 1882, 271; Lord Granville to Mr. We.st, Aug. 17,
1883, Correspondence in relation to the jiroposed Interoceanit; Canal
(Washington, 1885), 363; Mr. Frelinghuysen to Mr. Lowell, Nov. 22,
1883, Correspondence, etc. 365.
See, also, message of President Arthur, Dec. 19, 1883. communicating to the
Senate a report of Mr. Frelinghuysen, Sec. of State, with some of the
foregoing correspondence, S. Ex. Doc. 26, 48 Cong. 1 sess.
The volume entitled •"Corresixmdence in relation to the Proposed Inter-
oceanic Canal"' (Washington, 1885) contains reprintsof S. Ex. Doc. 112,
46 Cong. 2 sess.; S. Ex. Doc. 194, 47 Cong. 1 sess.; S. Ex. Doc. 26, 48
Cong. 1 sess.
" The (questions growing out of the proposed interoceanic water-way
across the Isthmus of Phiuiuui arc of grave national importance. This
government has not been unmindful of the solemn obligations impo.sed
upon it by its compact of 1S4G witli Colombia, as tlic independent and
sovereign mistress of the territory cro.ssed by the canal, and has sought
to render them effective by fresh engagements with the Colombian
Republic looking to their practical execution. The negotiations to
this end, after the^^ liatl reached what appeared to be a mutually sat-
isfactory solution here, were met in C'olombia by a disavowal of the
powers which its envoy had assumed, and by a proposal for renewed
negotiation on a modified basis.
"Meanwhile this government learned that Colombia had proposed
to the European powers to join in a guarantee of the neutrality of the
proposed Panama Canal — a guarantee wliich would be in direct con-
travention of our obligation as the sole guarantor of the integrity of
§840.] ISTHMUS OF PANAMA: NEGOTIATIONS OF 1856-1857. 19
Colombian territory and of tlio neutrality of the canal itself. My
lamented predecessor felt it his duty to place before the European
powers the reasons which make the prior guarantee of the United
States indispensable, and for which the interjection of any foreign
guarantee might be regarded as a superfluous and unfriendly act.
" Foreseeing the probable reliance of the British (xovernment on
the provisions of the Clayton-Bulwer treat/of 1S50, as affording room
for a share in the guarantees wliich the United States covenanted with
Colombia four years before, I have not hesitated to supplement the
action of my predecessor by i)roposing to Iler Majesty's (Tovernment
the modification of that instrument and the abrogation of such clauses
thereof as do not comport with the obligations of the United States
toward Colombia, or with the vital needs of the two friendly parties
to the compact."
President Arthtir, annual message, Dec. 6, 1881. (For. Rel. 1881, p. vi.)
In the summer of 1883, there was a rumor of a design on the part of Chile,
with the support of England, Brazil and Ecuador, to occupy the Isth-
mus of Panama and control the canal route. (MS. Inst. Colombia,
XVII. 394; MS. Inst. Cent. Am. XVIII. 353.)
(3) NEGOTIATIONS OF 1856-7.
§ '340.
In December 1856, Mr. Isaac E. Morse was sent as a special com-
missioner to New Granada in order to negotiate, jointly with Mi-.
Bowl in, then American minister at Bogot/i, for the settlement of
pending questions in relation to the Isthmian transit. The principal
questions related to the demand of the United States for an indem-
nity for the destruction of American life and property in the Panama
riot of April 15, 1856, and the attempt of the authorities in New
Granada to impose high tonnage duties on American vessels and bur-
densome taxes on American mails. But the most urgent question ad
the moment was that of the preservation of order and security on tho
ti'ansit route. In order to accomplish the objects in view, Messrs.
Morse and Bowlin were furnished with a project of a convention and
instructed to urge its acceptance upon the Government of New (Gra-
nada. By this convention it was proposed to make of Colon (Aspin-
wall) and Panama free ports, with semi-independent municipal gov-
ernments, the headquarters of one to be at Panama and of the other
at Colon. Each of these municipalities was to exercise jurisdiction
over a district twenty miles in width, lying on eitlier side of the
Panama railroad and extending to the middle of the Isthmus. New
Granada, while retaining sovereignty over this district, was not to
exercise it in a manner inconsistent with the i)Owers granted to the
niunicipalities by the convention. Stipulations were also to be made
for the protection of the railway. In case the transit route should be
interrupted, or seriously threatened with interruption, by a force
20 INTEROCEANIC COMMUNICATIONS. [§ 341.
lilvoly to be toa formidablo f(»r tho local police, the naval and militavy
t'.ircos of the irnlted States were to be used for the purpose of keej)-
iiij^ open and protect! nj? the tiansit. New Granada was also to trans-
fer to the United States all h»n- interest in and control over the
Panama railroad, whether by charter, contract or otherwise, and -the
United States was to be empowered to enforce all the obligations
which the Panama llailroa<l Company had contracted with New
Granada. If war should break out between the United States and
New Granada, neither party was to occupy the municipal district
above mentioned for belligerent purposes, or in any waj' to interrupt
the transit. It was further to be provided that the transit should be
open to the common use of all nations which should by treaty stipula-
tions agree to treat the riiunicipal district at all times as neutral and
to respect the municipal authorities therein established, and foreign
nations were to be invited to join in the mutual guarantee of the neu-
trality of the district and of the municipal governments and of the
unobstructed use of the Panama railroad, or of any other road or
route which might be established across the Isthmus within the limits
of the designated territory. In order to insure to the Government
and people of the United States the full enjoyment of the advantages
of interoceanic communication and secure safe and commodious har-
bors for merchant vessels and national ships, it was proposed that
New Granada should cede to the United States the island of Taboga
and other islands in the harbor of Panama. The United States was
to pay for the grants and cessions thus proposed not more than
$1,800,000, from which were to be deducted $-iOO,000 on account of
claims of citizens of the United States against Ncav Granada.
Mr. Marcy. Sec. of State, t(j Messrs. Morse and Bowlin. Dec. 3, 1856, Corre-
spondence in relation to the Proposed Interoceanic Canal (Washington,
1885), 21-27.
See, also, the text of this instruction in the manuscripts of the Department
of State, where the amounts of money to be offered and accepted are
given.
That the Government of New Granada declined "to even negotiate upon
the questions at issue," see Mr. Ca.ss, Sec. of State, to Mr. Bowlin, April
17, 1857, MS. Inst. Colombia, XV. 364.
(4) NEGOTIATIONS OF 1868-70.
§341.
March 2, 1808, Mr. Peter J. Sullivan, minister resident of the United
States at Bogota, was instructed and furnished with
Convention of 1869. «. i, , ... .. .,, ^ , , .
a full power to negotiate a convention with Colombia
for the purpo.se of facilitating the construction of an interoceanic
canal through Colombian territory.
September 24, 18G8, an act Avas passed bj' the legislature of the State
of New York to incorporate a company for the construction of such a
canal.
§ 341.] ISTHMUS OF PANAMA : NEGOTIATIONS OF 1868-1870. 21
November 25, 18G8, Mr. Caleb Gushing was sent to Bogota to aid
Mr. Sullivan in his negotiations. On January 14, 1809, however, Mr.
Sullivan succeeded in concluding a convention with the plenipotenti-
aries of Colombia. The question of the neutralization of the canal in
time of war had formed an obstacle to the progress of the negotiations.
As signed, Article IX. of the convention provided: "The United
States of America shall have the right to use the canal for the passage
of troops, munitions and vessels of war, in time of peace. The entrance
to the canal shall be rigorously closed to the troops of nations which
are at war with another or others, including their vessels and muni-
tions of war."
In a note to the Colombian minister at Washington, January 18,
1869, written without knowledge that a convention had been signed,
Mr. Seward expressed the "very deliberate conviction" (1) that
"henceforth neither any foreign government nor the capitalists of any
foreign nation, except the Government and capitalists of the United
States, will ever undertake in good faith to build a canal across the
Isthmus of Darien ; " (2) that "the neutrality most desirable for Colom-
bia is to be found in a combination of the power, authority and influ-
ence of the United States of America and the power, authority and
influence of the United States of Colombia to protect the canal and
make it productive of the largest commercial benefit to all nations; "
and (3) that "not only would the United States be unwilling to enter
into an entangling alliance with other foreign nations for the con-
struction and maintenance of a passage through the Isthmus, but also
that the idea that other commercial powers could and would consent
to enter into a combination with the United States of America for
that purpose is impracticable and visionary."
Under the convention, the United States was to construct the canal.
Mr. Seward, Sec. of State, to Mr. Sullivan, min. to Colombia, March 2, 1868,
MS. Inst. Colombia, XVI. 208; Mr. Seward, Sec. of State, to Peter
Cooper, Esq. , Sept. 28, Oct. 17 and 19, 1868. and Feb. 18.1869. 79 MS. Dom.
Let. 861.550; Mr. Seward. Sec. of State, to Mr. Snllivan,min. to Colom-
bia, Oct. 24, 1868. MS. Inst. Colombia, XVI. 327; Mr. Seward, Sec. of
State, to Mr. Cnshing, Nov. 25, 1868, MS. Inst. Colombia, XVI. 332;
Mr. Seward, Sec. of State, to Gen. Acosta, Colombian min.. Jan. 18,
1869. MS. Not'es to Colombia, VI. 240.
For the message of President Johnson, Feb. 15, 1869, transmitting to the
Senate the (convention signed Jan. 14, 1869, see Correspondence in rela-
tion to the Proposed Interoceanic- Canal (Washington, 1885), 36.
With reference to various canal routes, see the " Problem of Interoc;eanic
Communication by Way of the American Isthmus,"' by Lieut. John T.
Sullivan, U. S. N.: Washington, 1883.
January 2G, 1870, another convention between the United States
and Colombia was signed at Bogota, looking to the
Convention of 1870. . . • n .■, ^ \ ^\ c r^ 4
construction of the canal by the foi'moi- Govern ment.
By Art. XI. of this treaty the United States was to guarantee that
"the canal, its dependencies and appurtenances, shall be free and
22 INTEROCEANIC COMMUNICATIONS. [§ '^"^l-
exempt, from nil liostilo acts on tho part of aii}' other nation or for-
eign power." The article fiii'ther provided: "Both of the parties
contracting in this treaty reserve to themselves the right of passing
their ships of war, troops, and munitions of war through th<^ canal at
all times, free of all charge, impost, or duty; hut the said canal shall
be closed against the flag of all nations which may be at war with
either of the contracting parties. No troops shall be allowed to pass
through the canal with arms in their hands, except those of the United
States of Colombia moving under constitutional authority, and those
vessels of war of nations at peace with both contracting parties.
With the exceptions herein named, the canal shall be open for the use
of all nations and every kind of lawful business without distinction."
By Article XXV., however, the contracting parties mutually agreed
"to use all possible etforts to obtain from other nations a guarantee
in favor of the stipulations of immunity and neutrality mentioned in
Article XI., and also in favor of the sovereignty of the United States
of Colombia over the territory of the Isthmus of Panama and that of
Darien." The United States also recognized and renewed the stipu-
lations of Art. XXXV. of the treaty of 1846; and the article (XXV.)
concludes: "Those nations which, by treaties entered into with the
present contracting parties, shall unite in the guarantee of the neu-
trality of the canal and of sovereignty over the territory, as herein-
before expressed and given by the United States of America, shall be
relieved from tonnage and other imposts upon their ships of war
either in full or to such extent as maybe stipulated in such treaties."
The Colombian government opposed Art. XI. on the ground that it
would practically make Colombia a party to anj^ war in which the
United States should become involved. The Colombian Senate mod-
ified the treaty so that the canal should remain free during the con-
tinuance of hostilities to the vessels of war, troops, and munitions of
war of the belligerents; but no act of hostility was to be committed
within the canal or its dependencies or within a certain distance of
it, though it was to remain closed to the vessels of war which should
not have joined in the guarantee.
For the full text of the convention, see the message of President Grant,
transmitting it to the Senate, March 31, 1870, Conf. Exec. Q. 41 Cong.
2 sess. ; reprinted in Correspondence in relation to the Proposed Inter-
oceanic Canal (Washington, 1885), 40.
Certain correspondence, preceding and following the signature of the con-
vention, was communicated by President Grant to the Senate, Decem-
ber 6, 1870, and was printed in Conf. Doc, Exec. E, 41 Cong. 3 sess.;
reprinted in Correspondence in relation to the Proposed Interoceanic
Canal ( Washington , 1 885 ) , 48-86.
The Department of State, replying to a recjuest of the Colombian minister
for a statement of the objections entertained by the Senate of the United
States to the convention, expressed its regret that it was not in its power
to comply with the request. (Mr. J. C. B. Davis, Act. Sec. of State, to
Mr. Perez, June 9, 1871, MS. Notes to Colombia, VI. 277.)
§342.] ISTHMUS OF PANAMA: NEGOTIATIONS OF J881. 23
A new treaty was proposed by the Colombian legation at Washington, but
the negotiations did not result in an agreement. (Mr. Fish, Sec. of
State, to Senor Martin, Colombian min., Dec. (5, 1872, and June 7 and
Aug. 8, 1873, MS. Notes to Colombia, VI. 303, 311, 314.)
In answer to the statement that Colombia would expect a positive obliga-
tion to construct the canal, Mr. Fish replied that it was not likely that
the United States would under any circiimstances assume such an obli-
gation, and that the question how far the United States might, pursuant
to a convention with Colombia, extend its protection to a private enter-
prise of citizens of the United States for that purpose, must depend on
the conclusion, which had not yet been reached, as to the practicability
of the canal and the most eligible route for the work. (Mr. Fish, Sec.
of State, to Seiior Martin, Colombian min., Aug. 8, 1873, MS. Notes
to Colombia, VI. 314.)
The Government of the United States subsequently reserved its decision as
to whether it would send an engineer or any other person to join in a
proposed survey of a part of the territory of Colombia by a "committee"
of an " international association in Europe," till information should be
received of the character of the proposed expedition, and whether any
European government had appointed a member of the committee or had
designated an engineer or other representative to make or unite in the
surv^ey. (Mr. Fish, Sec. of State, to Mr. Perez, Dec. 20, 1876, MS.
Notes to Colombia, VI. 327. )
Mr. Fish had previously stated that the United States did not object to
taking part in a conference of maritime powers at Constantinople for
the purpose of dealing with questions ' ' connected with the Suez Canal
dues." It was stated that the minister of the United States at Constan-
tinople had been instructed accordingly, but had not been authorized
to commit his Government to any conclusion which might be reached,
till there should have been an opportunity to examine the results of the
conference. (Mr. Fish, Sec. of State, to Sir Edward Thornton, British
min., Jan 14, 1873, MS. Notes to Great Britain, XVI. 15.)
(5) NEGOTIATIONS OF 1881.
§ 342.
Feb. 17, 1881, Mr. W. II. Trescot, ropvesontinc: the United States,
and Gen. Santo Domingo Vila, representing Colombia, signed at New
York a protocol which pnrported to set fortli the views of tlie two
Governments witli reference to the execntion of Art. XXXV. of tlie
treaty of ISIO. It declared that any interoeeanic communication
through the Isthmus of Panama, by canal or otlierwise* should be
as free and open to the Government and citizens of the United States
as to tlie Government and citizens of Colombia, "evcept in case,
which God forbid, of war between the two nations." Tlie two Gov-
ernments were by common accord to select such points on the istlimus
as tliey niiglit deem proper for militaiy and naval purposes and to
provide bj^ convention for the occupation and establisliment of sucli
places; and the United States, if occasion should arise for the per-
formance of the guarantee of 184G, was authorized to occupy and hold
the threatened territory during the exigency, in cooperat ion with the
24 INTEBOCEANIC COMMUNICATIONS. [§ ^43.
Colombian forces. Hut, in time of peace, and when no exigency
existed, only Colombian military forces were to be stationed in the
Colombian territory. It was further agreed that, while the use of
the canal in time of peace by the war vessels of other powers was not
to be considered as a right, the two Governments would declare it
open to the innocent use of such vessels, subject tc such regulations
and restrictions as they might jointly adopt.
Mr. Evarts declared, as Secretary of State, that the agreement on
the points embraced in the protocol met his views and had received
the approval of the President.
The Colombian Government, however, declined to approve the
protocol, on the ground that it was at variance with the instructions
of the Colombian negotiator, and with the means which Colombia
deemed *'best adapted to prevent any extension of the obligations
contracted by both nations by the treaty of 184G " and to avoid the
dangers which might arise from the construction of the canal.
For. Rel. 1881, 361-388, where correspondence and documents are given.
" The United States Government has not abandoned its right to insist that as
guarantor of the neutrality of transit and sovereignty of Colombia over
isthmian territory its consent was and will be necessary to the validity of
any concession which might aff ec t the conditions of the guarantee , but it
has simply, presently accepted such a practical recognition of its rights
as guarantor as will enable the Govomment to maintain its rights
under the treaty of 1846 whenever the necessity for such maintenance
shall arise, and you will govern any representations you may make
accordingly. This will leave for further consideration the value
and importance of requiring a firm stipulation that no new concession
or modification of concession can be made without, the concurrent
approval of its terms by the United States as not objectionable treat-
ment of the subject of our treaty engagements with Colombia — that is
to say the Isthmus of Panama and interoceanic communication. " (Mr.
Evarts, Sec. of State, to Mr. Dichman, min. to Colombia, Feb. 18, 1881,
MS. Inst. Colombia, XVII. 229.)
See, also, Mr. Evarts to Mr. Dichman, Feb. 5, 1881, MS. Inst. Colombia,
XVII. 208.
2. Guarantee of neutrality and sovereionty.
§ 343.
"The obligations we have assumed [by the guarantee of the neu-
trality of the Isthmus] give us a right to offer, unasked, such advice
to the New Granadian Government, in regard to its relations with
other powers, as might tend to avert from that Republic a rupture
with any nation which might covet the Isthmus of Panama."
Mr. Clayton, Sec. of State, to Mr. Foote, min. to New Granada, July 19,
1849, MS. Inst. Colombia, XV. 134.
§ 343.] ISTHMUS OF PANAMA : TREATY OF 1846. 25
" Your letter of the 8tli iustfint has been dulj' received and 8iiT)iuitted
to the President, inwliicli you in<|uire wliat interpreta-
Answer to Peru- ^j^^ j^ placed by the Government of the United States
vian inquiry,
upon the thirty-fifth article of the treaty of the 1 2th
of December, 1846, by which they guarantee positively and effica-
ciously to New Granada the perfect neutrality of the Isthmus of
Panama.
"The general scope and design of this stipulation are of course
entirely apparent, and are set forth very distinctly in the article
referred to; and your enquiry must therefore be understood to apply
to the particular measures proposed to be adopted, on the occurrence
of events menacing the neutrality of the Isthmus.
"The treatj^ being a compact between the United States and New
Granada, to which no other government is a party, it miglit not be
strictl}^ proper nor in all respects convenient to enter into explana-
tions with a third power, as to any measures which the United States
might think it proper to adopt, if the neutrality of the Isthmus
should be menaced. It may, however, be safely presumed that the
magnitude of our interests in that quarter wo.dd dictate the pursuit
of the policy best calculated to promote the desired end.
"But the latter portion of your note appears to contemplate the
possibility that New Granada might avail herself of this guaranty of
the neutrality of the Isthmus, to make it the seat of hostile prepara-
tions against Peru, and in that case the guaranty of neutrality would
in effect become a defensive alliance between New Granada and the
United States, by which Peru would suffer.
"Sincerely interested in the welfare of each of these powers, and
sensible of the evils which would result to them and tlie inconven-
ience which would be occasioned to the commerce of the United States
by a rupture between them, this government would view such an
event with extreme regret, and would be prepared at any moment
and at the request of either party, to interpose their good offices to
prevent it.
"I gather from your note of tlie 8th that the Peruvian government
would deem it for their interest that the neutrality of the Isthmus
should be respected by all other powers, as well as the United States.
If the Peruvian Government thought proper to make a formal sug-
gestion of this kind and a wish to become a party to the agreement,
the government of the United States would receive such a suggestion
with pleasure, and would communicate it to that of New Granada,
with an intimation on our part that it would be agreeable to the
United States that Peru should be associated bj^ a proper public ac^,
in the guaranty of the neutrality of the Isthmus."
Mr. Everett, Sec. of State, to Mr. Osma, Peruvian iiiin.. Feb. S2, 1853, MS.
Notes to Peruvian Leg. I. 79.
26 INTEROCEANIC COMMUNICATIONS. [§343.
"I rceoininond to ('Oiii^rcss the passage of an act authorizing the
President, in case of necessity, to employ the land and naval forces
of the United States to carry into effect this guaranty of neutrality
and i)roteotion. I also recommend similar legislation for the security
of any other i-oute across the Isthmus in which we may acquire an
interest by treaty."
President Buchanan, annual massage, Dec. 8, 1857. (Richardson's Mes-
sages and Papers, V. 447.)
In 1804 the minister of foreign affairs of Colombia, in expectation
of a war between Peru and Spain, in which the
Opinion of At- ]3^^^^,|. power might wish to send troops across the Isth-
rney- ener ^^^^^ ^^ Panama, addressed a note to the minister of
al Bates.
the United States at Bpgota, setting forth the expec-
tation of the Colombian Government that the United States would
carry into effect its guarantee of the neutrality of the Isthmus, as
stipulated in Article XXXV. of the trejitj'^ of 1846. Mr. Seward sub-
mitted a copy of this note to the Attorney General of the United States,
with a request for his opinion as to whether the article bound the
United States forcibly, if need be, if required by Colombia, to inter-
fere to prevent the transportation of troops and munitions of war
across the Isthmus for the i^urpose of carrying on war against Peru.
The Attorney General did not directly answer the question, but inti-
mated that it related, at least potentially, to something substantially
different in effect fnnn the guarantee of the "perfect neutrality" of
the Isthmus.
Mr. Seward, Sec. of State, to Mr. Bates, At.-Gen.. Aug. 16, 1864, 65 MS.
Dom. Let. 523; Bates. At.-Gen. (Aug. 18, 1864), 11 Op. 67; Mr. Seward,
Sec. of State, to Mr. Burton, min. to Colombia, Aug. 20, 1864, MS. Inst.
Colombia, XVI. 108.
The opinion of Attorney General Bates has l^een cited as holding that the
guarantee of neutrality would oblige the Government of the United
States t ) prevent such acts as tho.so above mentioned, if it should l)e
called upon by the proper party to do so. The opinion, however, does
not directly meet the point, although the fact that it inveighs against
the guarantee, as imi)osing on the United States an onerous burden,
might seem to indicate an understanding on the part of the Attorney
General that it ai)plied to the case l)efore him. But it is obvious that
there is an essential difference, from the point of view of neutrality,
between the pas.sage of armed forces and the mere mercantile convey-
ance of munitions of war. On the whole, the opinion does not appear
to afford any definite result.
The United Stakes does not think itself bound to give explanations
to the Government of Colombia as to the form of proceedings which
it might suppose to be proper if oc(»asion should arise for the landing
of troops or naval forces in order to guarantee the sovereignty of
§ 343.] ISTHMUS OF PANAMA : TREATY OF 1846. 27
Colombia. The treaty and the hiw of nations must regulate the action
of both governments should such an emergency unhappily arise.
Mr. Seward, Sec. of State, to Mr. Burton, inin. to Col ambia, April aO, 1866,
MS. Inst. Colombia, XVI. 168. 189.
"A principal object of New Granada in entering into the treaty is
understood to have been to maintain her sovereignty over the Isthmus
of Panama against any attack from abroad. That object has been
fully accomplished. No such attack has taken place, though this
Department has rea.son to believe that one has upon several occasions
been threatened, but has been averted by warning from this Govern-
ment as to its obligation under the treaty. This Government has every
disposition to carry the treaty into full effect."
Mr. Fish, Sec. of State, to Mr. Perez, Colombian niin.. May 27, 1871, For.
Rel. 1871, 247, 248.
Our guarantee of neutrality 1o the Isthmus of Panama furnishes
no ground for any action by this Government in restraint of the trans-
portation o^ munitions of war to belligerents in a war as to which our
Govei'nment is neutral.
Mr. Evarts, Sec. of State, to Mr. Sherman, Sec. of Treas.. Nov. 14, 1879,
130 MS. Dom. Let. 472.
A copy of this letter was sent to Mr. Dichman, minister of United States at
Bogota, with the statement that care should be taken "to avoid con-
fusing in any way the neutrality of the Isthmus, as now under consid-
eration, with the rules of neutrality which Colombia, as a sovereign
state, may feel called upon to enforce in all her territory as towards
other nations who may be at war. The construction of our guarantee,
in case a conflict of interests or opinions should then arise, may prop-
erly be reserved for the situation as it may then be presented." It
appears that the question was raised by representations made to the
minister of the United States at Bogota Ijj^ the Chilean charge d'affaires
at that capital, concerning the neutrality of the Isthmus of Panama
during the war between Chile and Peru. (Mr. Evarts, Sec. of State,
to Mr. Dichman. min. to Colombia. Nov. 14, 1879, MS. Inst. Colombia,
XVII. 121.)
By a decree of Jtme 2, 1879, specially referring to the transjiortation of arms
and munitions of war acnjss tlu> Isthmus, during the existence of the
conflict between Peru. Bolivia, and Chile, the Government of Colombia
laid down certain rules " as a guide to Colombia, as a neutral luiwer."'
By these rules it was declared that the Panama railway should ''serve
universal commerce as a fre(! way of transit without reference to the
origin, species, or destination of goods." The transit of belligerent
troops was, however, forbidden. (70 Br. & For. State Papers, 750.)
28 INTEROCEANTC COMMITNICATTONS. [§ 343.
In 1S80 the Colojnhian ministorin tlic rnilod States brought to the
attention of the Department of State, vvith a view to
ftuestion of explanations, eertain newspaper reports as to the
coa ing s - pj.QggQjijy^nrg Qf ^]^Q XTnited States men-of-war Adams
tions.
and Kearsnrge in examining certain liar])ors in
Colombia, apparently with a view to occupy them as naval stations.
The Goloml)ian minister was informed that the subject of the acquisi-
tion by the United States of "coaling stations" in the ports of the
Isthmus " would be brought to the friendly attention of his (iovern-
ment" whenever the United States " considered such an acquisition
useful to its commercial and naval interests." The minister of the
United States at Bogota was subsequently instructed to intimate to
the Colombian Government the desire of the United States to acquire
the right to establish coaling stations at certain points; and he was
instructed to say that, as "this convenience had been accorded to the
United States at various times in the Atlantic and Pacific waters by
all friendly powers, upon the mere suggestion by this Government that
it was desired," it was anticipated not only that no obstacle would be
interposed, but that the acquiescence of the Colombian Government
would be i)romptl3'^ and cordially afforded. " It is not deemed probable
that any unwillingness to supply this accommodation will be mani-
fested, but should there be any reluctance or hesitation you will remind
the Government of Colombia that the treaty obligation of guarantee
which the United States has assumed and the large and valuable
traffic of the Panama railroad make the establishment at these points
[Shepherd's Harbor on the Atlantic coast, and Golfito on the Pacific
coast,] of naval and commercial facilities a matter of more than ordi-
nary importance to both countries."
Mr. Evarts, Sec. of State, to Mr. Dichman, min. to Colombia, April 19.
1880, MS. Inst. Colombia, XVII. 147, enclosing copies of correspondence
with the Colombian minister concerning the proceedings of the Adams
and the Kearsarge.
See, also, Mr. Evarts, Sec. of State, to Mr. Logan, June 25, 1880, MS. Inst.
Central America, XVIII. 104, referring to the action of the authorities
of the State of Panama, ostensibly under orders from Bogota, in order-
ing the withdrawal of the Admns from Gplfo Dulce, the territory and
waters of which were part of the disputed boundary between Costa
Rica and Colombia.
See, also, Mr. Evarts, Sec. of State, to Mr. Dichman. min. to Colombia,
July 31, 1880, MS. Inst. Colombia, XVII. 181.
For the correspondence between Mr. Evarts and the Colombian miniatier at
Washington, and especially Mr. Evarts" notes of April 17 and June 5,
1880, in relstion to coaling stations, see For. Rel. 1880, 335-341.
§ 343.] ISTHMUS OF PANAMA : TREATY OF 1846. 29
The Republics of Colombia and Costa Rica entered into a conven-
tion to refer certain differences as to their bounda-
^. . ^." . ries to the Kini' of the Belgians, and, in case of his
Eican Arbitration. , , . . . , , ^ '. V o, • ■, ,
declination, successivel}^ to the King of Spam and the
President of the Argentine Republic. AVhen advised of the terms of
this convention, which had been concluded without notice to the
United States, Mr. Blaine, who was then Secretary of State, refer-
ring to the report that the King of the Belgians would decline,
and that the matter would then be submitted to the King of Spain,
declared that the United States, while it had no dissatisfaction to
express at the election of his Catholic Majesty, was of opinion that
any question affecting the territorial limits of the State of Panama
was of direct practical concern to the United States; that under the
guarantee of the treaty of 1846 the United States was entitled to an
active interposition in the solution of any such question, should it
deem its interests to require such intervention; and that the conven-
tion providing for the arbitration should have been the subject of
frank communication to and friendly consultation with the United
States on the part of the signatory powers. The United States would
not, said Mr. Blaine, interfere to prevent the accomplishment of the
arbitration, nor would it undertake to express any opinion as to the
accei^tance by the King of Spain of the invitation which was under-
stood to have been tendered him. The United States, however,
deemed it due to itself and respectful to his Catholic Majesty, to
inform him in advance that the Government of the United States,
where either its rights or interests were concerned, would not hold
itself bound by any arbitration, where it had not been consulted on
the subject or method and had had no voice in the selection of the
arbitrator. This communication was to be made in case the invita-
tion to his Catholic Majesty had actually been presented, but in mak-
ing it anything in the nature of a protest was to be avoided, and it
was to be declared that the communication was induced by the anx-
iety of the United States to avoid any misunderstanding or seeming
disrespect to the decision which his Majesty might reach, should he
accept the arbitration.
Mr. Blaine, Sec. of State, to Mr. Fairchild, min. to Spain, June 35, 1881,
For. Rel. 1881, 1057.
See, also, Mr. Blaine, Sec. of State, to Mr. Putnam, min. to Belgium, May
81, 1881, For. Rel. 1881, 70, to the same effect. The Belgian foreign
office stated that the King would not accept the trust. (For. Rel. 1881,
74, 75.)
A copy of the instruction to Mr. Fairchild was given to the Spanish foreign
office, but the invitation to the King of Spain had not then l)een
extended. (For. Rel. 18S1. 10(32. 10(5:{, 10()7.)
See. further, as to the boundary question, For. Rel. 1880,810, 325; For. Rel.
1881, 99. 105, 111, 354.
30 INTEROCEANIC COMMUNICATIONS. [§343.
"In the ease of the proposed arbitration between Costa Rica and
Colombia, the attitude of tlie United States was determined by two
circumstances, the fact that certain American interests lay in the dis-
puted strip of Isthmusian territory, and the existence of our treaty
guarantee of the sovereignty of Colombia over the State of Panama.
In view of these circumstances, this Government felt bound to inti-
mate its determination not to be bound by any arbitration concerning
the territfjry of l*anama, when the rights or interests of the United
States are concerned, when we had not been (consulted on the subject
or method of arbitration or the selection of the arbitrator.
"In the present instance the subject-matter of arbitration does not
appear to affect these two considerations. This Government is not
aware that American citizens have any rights in tlie disputed territory,
nor does it see that the settlement of the question will affect or im|)air
our guarantee of Colombia's sovereignty over the Isthmus. More-
over, the considerations which have led to the selection of the King
of Spain as arbitrator seem to have been so far founded in conven-
ience as to entitle them to friendly recognition, particularly as the
question to be determined is one of facts as to which the Colonial
archives of the Kingdom will furnish conclusive evidence, and is not
in any sense one of politics,
"On the other hand, this Government can not but feel that the
decision of American questions pertains to America itself, and it
would hesitate, even when consulted {sic) by the most friendly
motives (such as naturally join it to that of Spain) to set on record
an approval of a i-esort to European arbitration. As presented to
Mr. Hamlin by the Colombian Minister, however, the inquirj^ seems
to be not so much whether we will approve and support the proposed
arbitration as whether we have any intention of signifying our oppo-
sition thereto.
"If the subject should again be brought to the attention of the
Legation b}' the Minister of Colombia, you may say to him that this
Government sees no reason to interfere to prevent the arbitration of
the Colombian and Venezuelan boundary dispute by the King of
Spain, and, in the absence of specific knowledge of the points to be
submitted to arbitration, does not undertake to express an opinion
thereon or as to whether our interests are or are not involved. We
have every confidence in the impartiality of His Majesty in the prem-
ises, and as an abstract principle are glad to see any friendlj^ and
just settlement of disputes concerning interests so nearly allied to
our own,"
Mr. Frelinghuysen, Sec. of State, to Mr. Reed, charge at Madrid, No. 123
(confid.), Jan. 4, 1883. MS. Inst. Spain. XIX. 254.
The question as to the interests of the United States, especially in
consequence of the stipulations of Article XXXV. of the treaty of
§ 343.] ISTHMUS OF PANAMA : TREATY OF 1846. 31
1846, in the boundary arbitration between Colombia and Costa Rica,
was adjusted in 1886. November 14, 1885, Mr. Bayard, who was then
Secretary of State, addressed a note to the Cjiombian legation in
Washington, in relation to the rights of guarantee or tenure which
the Government of the United States or its citizens might be found to
have with respect to the territory in dispute. By a supplementary con-
vention between Colombia and Costa Rica, concluded January 20, 1886,
it was expressly provided (Art. III.) that the judgment of arbitration
should be confined to the territory within certain extreme limits, which
were laid down in the supplementary convention, and it was also
declared that the judgment could not in any way affect the rights
which any third party, not having taken part in the arbitration, might
allege to the "ownersliip" of the territory comprised within those
limits. These stipulations were brought to the attention of the United
States, with the assurance tliat they were intended to meet the points
presented in Mr. Bayard's note of November 14, 1885. The United
States accepted this formal assurance as sufficient, with the express
understanding that the term "ownershii) (propriedad)" was employed
in no restrictive sense, but included all "possessory or usufructuary
rights and all easements and i)rivileges which the United States or
tlieir citizens may possess in the disputed territory, not only as respects
the relation of the United States to each or either of the contracting
parties to the arbitration, but also with regard to the relation of the
United States or their citizens toward any third government not actu-
ally a party to the submission." This declaration was deemed by the
United States to be proper in view of the fact that the region^in dis-
pute, as defined in the supplementary convention, not only embraced
territory to whicli the concessions of Colombia and Costa Rica and
the mutual guarantees of the United States with Colombia might be
found to be applicable, but also included territory coming within the
scope of the existing arrangements of Nicaragua with the United
States and the latter's citizens. In conclusion, Mr. Bayard said:
"So, accepting the declarations of the supplementary articles of
20th January, 1886, as fully responding to the views and propo-
sitions set forth in my note to Senor Gonzalez Viquez of the 14tli
November, 1885, I will have pleasure forthwith in carrying out the
promise I then made, to announce to the Government of Spain, as the
arbitrator ixccepted by Costa Rica and Colombia, that, in view of the
forma] understanding reached by the contracting parties to the arbi-
tration, whereby the scope and effect thereof are defined without
impairment of any rights of the thiid parties 7iot sharing in the arbi-
tration, the Government of the United States withdraws from the
notification, made June 25, 1881, that it would not hold itself bound
by the results of such arbitration.
"In so doing the Government of tlie Unit^nl States feels that it is
consistently lending its countenance to the general promotion of the
82 INTEBOCEANIC COMMUNICATIONS. [§343.
policy of arbitration which it has itself advocated and adopted on
important occasions as a means of adjusting international differences
or disputes, and aiding a resort whereby the peace and welfare of the
South American States can be secured and the losses and demoraliza-
tion attendant upon costly and useless warfare bo prevented.
"I have addressed a communication in a similar sense to the envoy
of the United States of Colombia at this capital."
Mr. Bayard, Sec. of State, to Senor Peralta, Costa Rican inin. , May 26. 1886,
For. Rel. 1893, 280. See, also. Mr. Bayard, Sec. of State, to Mr. Cnrry,
mill, to Spain, May 26, 1886, MS. Inst. Spain, XX. 207; Mr. Porter, Act.
Sec. of State, to Mr. Curry, No. 81, June 16, 1886, id. 233.
It seems that the immediate occasion of the signature of the supplementary
convention of Jan. 20, 1886, was the death of H. C. M. Alfonso XII.,
who was king of Spain when the convention of arbitration was signed
(Dec. 25, 1880). His death having raised a doubt as to the right of his
successor to discharge the function of arbitrator under the convention,
the supplementary convention declared that the government of Spain
was "competent to continue in charge of the arbitration offered by the
two republics and to pronounce ... a final sentence." (For. Rel.
1893, 274-275.)
The ^supplementary convention was laid before the Spanish Government by
a joint note of the Colombian and Costa Rican ministers at Madrid,
May 19, 1887, with an expression of the hope that the Government of
H. M. the Queen Regent would be "actuated by the same benevolent
disposition by which His Majesty Alfonso XII. was actuated." (For.
Rel. 1893,275.)
As to further proceedings in the arbitration, see For. Rel. 1893, 213, 216, 266,
270, 281, 287; For. Rel. 1894, 180-193, 439.
"The United Statts are, by the treaty of 1846, with New Granada,
now Colombia, guarantors of the rights of sovereignty and property
which Colombia has and possesses over the territory of the Isthmus
of Panama 'from its southernmost extremity until the boundary of
Costa RlcH,' and this Government is therefore interested in knowing
the limits of the guarantee it has so assumed, and regards it as a
solemn duty of friendship, and good neighborhood to do what it can
toward the determination of its own rights and duties in respect to a
territory the bounds of which are unfixed and in controversy.
" Without, therefore, expressing any opinion touching the merits of
the dispute now pending between Costa Rica and Colombia concern-
ing the continuing validity of the boundary arbitration under the
treaiy of December 25, 1880, and without relinquishing the stand it
liHS lieretofore taken in regard to the rights of third parties in such
arbitration, the Government of the United States, in a spirit of com-
plete disinterestedness, feels constrained to represent to the two gov-
ernments of Costa Rica and Colombia its earnest desire and hope
that they shall waive the comparatively trivial obstacle to the accom-
])lishnietit of tlie larger purpose of amicable arbitration which they
have both advocated, and that they shall come to an understanding
§ 343.] ISTHMUS OF PANAMA : TREATY OF 1846. 33
whereby that higli aim shall be realized, either by the continuance of
the arbitration under Her Majesty the Queen Regent of Spain, or if
Her Majesty be indisposed to resume her functions, then by the
alternative method already agreed upon, or by resort to any impartial
arbitrator."
Mr. Greshain, Sec. of State, to Mr. Baker, min. to Costa Rica, July 14,
1898, For. Rel. 1893, 202; see, also, 216. The sam ) instmction was sent,
mutatis mutandis, to the United States minister to Colombia.
See other correspondence with Colombia, For. Rel. 1898, 266: and with the
legation of Costa Rica at Washington, id. 270-294.
The Government of the United States " is [not] a party to the arbitration
negotiated between Costa Rica and Colombia. The correspondence yon
cite, and an examination of the Department's correspondence on the
subject show, that upon the conclusion of the convention of December
2.5, 1880, the United States gave timely notice to the contracting gov-
ernments and to the proposed arbitrators that this Government would
not be bound by anj' results of an arbitration to which it was not a
party, should the rights of the United States or of citizens of the
United States in the disputed territory be affected thereby. Subse-
quently when, in 1886, the powers entered into a supplementary cove-
nant to respect the rights of third parties whatever the result of the
arbitration might be. they thereby merely recognized as valid the noti-
fication theretofore given by the United States, and met the exjiressed
reservation not only as enunciated by the United States but in favor
also of any third power, even had the latter made no reservation of
ultimate rights. But this conventional agr:ement of the two powers
no more operated to make the United States a party to the litigation
than it could have opei-ated to include therein any other third power
whose riglit it professed to respect^such as Nicaragua, for example."
(Mr. Gresham. Sec. of State, to Seiior Peralta, Costa Rican min.. May
18. 1893, For. Rel. 1893, 287, 288.)
In January 1885 it was reported that the relations between Italy
and Colombia had, in consequence of disputes as to
the case of Cerruti, an Italian subject, who claimed
that he had been injured l)y the Colombian Government, a.ssumed a
grave aspect; that Italy demanded an indemnity for Cerruti prior to
anj^ understanding; that tlie Italian minister at Bogota had asked
for his passports, and had announced the s{)e<Mly arrival of Italian
warships to enforce his government's demand. The minister of the
Ignited States at Paris was instructed to inquire whether France
would join the United States and England in recommending that
Italy and Colombia resort to the arbitration of S[)ain; and it was
declared that the United States couhl not view witli indifference a
resort to ai-med force by a European power upon a government with
which, as to a part of its territory, the United States had contracted
such exceptional engagements as those witli Colombia. A similar
telegram was sent to the United States minister at Madrid.
In a confidential instruction to tlie ministci- of the United States at
Bogota, Febrnary 11, 1880, Mr. Bayar<l said: "As the earnest and
H. Doc. 551— vol 3—3
34 INTEROCEANIC COMMUNICATIONS. [§ ''^44^-
consistent jidvocatos of intornational arbitration in settlement of
(liflferences and as fric^ids of botli parties to the present dispute, we
are sincerely jrlad of a mode of settleiiieiit whicli will not excite the
serious concern the I'nited States could not hut feel were a Kuroiiean
power to resort to force against a sister rej)ublic of this hemisphere
as to the sovereijj^n aud uninterrupted use of a part of whose territory
we are jjuarantors, uuder the solemn faith of a treaty."
Mr. Bayard, Sec. of State, to Mr. McLai e, luin. to France, tel., Jan. 29,
1886, MS. Inst. France. XXI. 378; Mr. Adee, Act. Sec. of State, to Mr.
Curry, rniii. to Spain. Jan. 31, 1886, MS. Inst. Spain, XX. 162: Mr.
Bayard, Sec. of State, to Mr. Jacob, min. to Colombia, confidential,
Feb. 11, 1886, MS. Inst. Colombia, XVII. 498. See, also. Mr. Bayard,
Sec. of State, to Mr. Becerra, Colombian min., Nov. 17, 1885, MS. Notes
to Colombia. VII. 64.
The case of Cernati was snbmitted to the mediation of the Government of
Spain, and afterwards, in consequence of the failure to carry out the
mediatorial recommendation, to the arbitration of the President of the
United States. (Moore, Int. Arbitrations, II. 2117-2123; V. 4699.)
In 1S90, when the dispute lietween Italy and Colombia had revived, by
reason of difficulties relating to the execution of the mediatorial award
of Spain, Mr. Blaine instructed the minister of the United States at
Rome to intimate to the Italian Government the desire and willingness
of the United States to aid in any proper way " toward a better under-
standing.'" but added: '• Our position of perfect and imx>artial friend-
ship toward both powers should not be weakened by any show of
voluntary intervention, withoiit a distinct intimation that an expres-
sion of the disinterested views of this Government on the matter now
in dispute would be agreeable to both parties. . . . Your discreet and
friendly offices thus freely held at the disposal of both parties, will, it
is thought, more effectively aid a practical determination of the impend-
ing controversy than would the formal tender of our mediation : and at
the same time make unnecessary any emphatic insistence on the deep
concern with which this Government would view the expansion of this
simple matter of detail into a serious question between a friendly Euro-
pean power and a neighl)oring American state, to which we are allied
by strong ties of tradition and common interest."' (Mr, Blaine. Sec.
of State, to Mr. Porter, min. to Italy, March 1, 1890, MS. Inst. Italy,
II. 4.50.)
3. GUAK.\NTKE OF FrEE AND OPEN TRANSIT.
(1) DOMESTIC DISTURBANCES.
§ 344.
On the evening of April 15, 1S5(J, a serious riot occurred at Panama.
_ . ^ ,-.- Early in tlie day the steamer Illinois arrived at Aspiii-
Panama not, 1856. , ■,
wall (Colon) having on board 950 passengers, includ-
iug many women and children, on their way to California. Most of tlie
passengers had been transported on the Panama railway to Panama,
in order to take the steamer for California, when an altercation
occurred between a drunken passenger and a Panama negro, wlio
§ 344.] ISTHMUS OF PANAMA : PANAMA RIOT, 1856. 35
kept H provision stand near the railway station, over the refusal of
the former to pay for a slice of watermelon which he had purchased
and of whicli the price was a dime. A companion of the passenger
paid the money, but the disturbance did not cease. During the quar-
rel a pistol shot was fired. The pistol belonged to the passenger, but
there was some controversy as to who fired the shot. The evidence
indicated that it was fired by a companion of the watermelon vendor,
who took the pistol from the paSwSenger (who had drawn it) and fired
it at him. Immediately afterwards the negro and his companion ran
away to the Cieiiagn, a marshy negro settlement near the railway sta-
tion, and presently returned with a large crowd of negroes armed with
stones, machetes, and other weapons, and commenced an attack on
McFarland's Hotel (the Pacific House) and the Ocean House. Many
of the passengers were in and about the railway station, and were
orderlj^and not anticipating trouble. In a few minutes, however, the
railway station was attacked, and the police joined the mob. The
passengers defended themselves with such weapons as thej' had at
hand. An appeal was made to the governor for protection, but it was
alleged that he was remiss in his efforts to prevent what was done.
Before the riot wasstaj^ed, about twenty persons were killed, only two
of whom belonged to the assailants, and twenty-nine wounded, thir-
teen of whom were natives. The loss of the foreigners in propertj'^
was large, the claims on that score amounting to half a million dollars.
The United States demanded an indemnity from New Granada, and
in so doing insisted upon the obligation of the latter, under the treaty
of 184<5, to secure to the Government and citizens of the United States
a free and open transit. A long negotiation ensued resulting in the
conclusion at Washington, September 10, 1857, of a convention which
provided for the adjustment by means of a mixed commission of all
claims of citizens of the United States upon the Government of Xew
Granada which should have been presented prior to September 1, 1859,
either to the Department of State at Washington or to the minister
of the United States at Bogota, "and especially those for damages
which were caused by the riot at Panama on the fifteenth of April,
185(5, for which the said Government of New Granada acknowledges
its liability, arising out of its privilege and obligation to preserve
peace and good order along the transit route."
For further particnilars concerning the riot and the negotiations, as well as
concerning the ultimate disposition of the claims, see Moore. Int. Arbi-
trations, II. 1361, et seq.
The claims convention was ratified by the Government of New Granada,
.Tuly 8. lS.")8,with certain explanations and modifications. One of the
explanations was as follows: " It is understood that the obligation of
New Granada to maintain peace and good order on the intei-oceanic
route of the Isthmus of Panama, of which Article I. of the convention
speaks, is the same by which all nations are held to preserve i)eace and
order within their territories, in conformity with general principles of
36 INTEROCEANIC COMMUNICATIONS. [§344.
the law of nations and of the pnblic treaties which they may have con-
chided." Tlie umpire of the commission decided that the liability of
New Granada wsis clearly and fully atlmitted by the convention and .was
nat varied by this explanation. ( Moore, Int. Arbitrations, 11. 1 369, 1879. )
In conseiiuence of the failure of the Government of New Granada to make
a suitable adjustment of the question of the riot c;laims wlien they were
first presented, the American minister at Bogota was instructetl to take
his passports and rettim home, which he did. (Mr. Cass, Sec. of State,
to Mr. Jones, min. to Colombia, April 30, 1859, MS. Inst. Colombia,
XV. 268,287.)
Certain claims of British subjects, growing out of the riot of April 15, 1856,
were settled by direct agreement between Great Britain and Colombia,
Dec. 7, 1868. (65 Br. & For. State Papers, 1219. )
"This state of insecurity is very prejudicial to both countries, and it
is not doubted that when properly urged upon the consideration of
New Granada that Government will take prompt and effectual meas-
ures to insure to the citizens of the United States the most ample pro-
tection for their persons and property on tlie isthmus within its
territory. This is not only a duty of national obligation, but is
expressly provided for in the treaty of 12th of December, 1846, between
the United States and New Granada. The United States must have
the free, safe, and uninterrupted transit for those citizens and for
public and private property across the Isthmus of Panama to the full
extent contemplated by that treaty, and this Government looks with
confidence for the security of this right, and does not expect that any
necessity will arise for the use of 'Any other means for the secure
enjoyment of it l)ut an appeal to the State of New Granada to fulfil
its treaty stipulations upon that subject. The United States may
reasonably expect, after what has happened, that New Granada will
station such a force along the route of the railroad and at Aspinwall
and Panama as will secure adequate protection to the persons and
property of the citizens of the United States."
Mr. Marcy, Sec. of State, to Mr. Bowlin, June 4, 1856, MS. Inst. Colom-
bia. XV. 218.
The relations of the United States to the Isthmus require "that the
passage across the Isthmus should be secure from danger of interrup-
tion. For this purpose, as well as for the ends of ju.stice, exemplary
punishment should be promptly inflicted upon the transgressors, and
the responsibility of the Government of New Granada for the miscon-
duct of its people .should be recognized."
Mr. Marcy. Sec. of State, to Mr. Bowlin, May 3, 1856; June 4, 1856; Dec. 3,
1856. MS. Inst. Colombia, XV. 216, 218, 232.
"The present condition of the Istlimus of Panama, in so far as
regards the security of persons and property i)a.ssing over it, requires
serious consideration. Recent incidents tend to show that the local
authorities cannot be relied on to maintain the public peace of Panama,
^ 344.] ISTHMUS OF PA^TAMA : TREATY OF 1846. 87
and there is just ground for apprehension that a portion of the inhab-
itants are meditating further outrages, without adequate measures for
the security and protection of persons or property having been taken,
either by the State of Panama or by the General Government of Xew
Granada.
"Under the guaranties of treaty, citizens of the United States have,
by the outlay of several million dollars, constructed a railroad across
the Isthmus, and it has become the main route between our Atlantic
and Pacific possessions, over which multitudes of our citizens and a
vast amount of property are constantly passing; to the security and
protection of all wliich and the continuance of the public advantages
involved it is impossible for the Government of the United States to
be indifferent.
"I have deemed the danger of the recurrence of scenes of lawless
violence in this quarter so imminent as to make it mj" duty to station
a part of our naval force in the harbors of Panama and Aspinwall, in
order to protect the persons and property of the citizens of the United
States in those ports and to insure to them safe passage across the
Isthmus. And it would, in my judgment, be unwise to withdraw the
naval force now in those ports until, by the spontaneous action of the
Republic of New Granada or otherwise, some adequate arrangement
shall have been made for the protection and security of a line of inter-
oceanic communication, so important at this time not to the United
States only, but to all other niaritime states, both of Europe and
America. "
President Pierce, annual message. Dec. 2, 1856. (Richardson's Messages
and Papers, V. 416.)
For the contracts between the Panama Railroad Company and the Colom-
bian Government of 1850, 1867, 1876, and 1880 see S. Doc. 264, 57
Cong., 1 sess., 208, 211; and particularly, as to the dispiite concerning
title to the island of Manzanillo, see id. 196, 255.
"The question which has recently arisen under the 35th article of
the treaty with New Granada, as to the obligation of
Subsequent discus- ^i^j,^ Government to complv with a requisition of the
sions. ^ *^ ^
President of the United States of Colombia for a force
to protect the Isthmus of Panama from invasion by a bodj- of insurgents
of that country, has been submitted to the consideration of the Att(n--
ney-Geneial. His opinion is, that neither the text nor the spirit of
the stipulation in that article by which the United States engages to
preserve the neutrality of the Isthmus of Panama, imposes an obliga-
tion on this Government to comply with a requisition like that referred
to. The purpose of the stipulation was to guarantee the Isthmus
against seizure or invasion by a foreign power only. It could not
liave been contemplated that we were to become a party to any civil
war in that country by defending the Isthmus against another part}'.
As it may be presumed, however, that our object in entering into such
$8 INTEROCEANIC COMMUNICATIONS. [§ 344.
a stipulation was to secure the freedom of transit across the Isthmus,
if Ihat freedom shoul<i Ix' eiulanirered or obstructed, tlie employment
of force on our part to prevent this would be a question of jjrave
exi>ediency to be determined by circumstan(res. The Department is
not aware that there is yet occasion for a decision upon this point."
Mr. Seward. Sec. of State, to Mr. Burton. Nov. 9. 1805. MS. Inst. Colom-
])ia. XVI. 144.
The foregoing instrnction is based on the opinion of Speed. At. Gen., Nov.
7. ISCm. 11 Op. 391.
See Mr. Seward. Sec. of State, to Mr. Pombo, Colombian charge, May 30,
1861, MS. Notes to Colombia, VI. 110.
In 18G<j a rumor became prevalent that an effort was about to be
made to secure the independence of the State of Panama. A strong
feeling in favor of such a measure was said to exist among the people
of that State. With reference to this subject, the Department of
State said : " The United States have always abstained from any con-
nection with questions of internal revolution in the State of Panama
or an}' other of the States of the United States of Colombia, and will
continue to maintain a perfect neutrality to such domestic controver-
sies. In the case, however, that the transit trade across the Isthmus
should suffer from an invasion from either domestic or foreign dis-
turbances of the peace in the State of Panama, the United States will
hold themselves ready to protect the same."
Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Oct. 9, 1866,
MS. Inst. Colombia, XVI. 202; confirmed in Mr. Seward to Mr. Burton,
Nov. 9, 1866, id. 205.
Replying to certain confidential letters on the same subject, Mr. Seward
said : " ' The matters contained in this correspondence have been s\ib-
mitted to the President in the Cabinet. The United States have taken,
and will take no interest in any question of internal revolution in the
State of Panama, or any other State of the United States of Colom-
bia, but will maintain a perfect neutrality in regard to such domestic
controversies. The United States will nevertheless hold themselves
ready to protect the transit trade across the Isthmus against invasion
by either the domestic; or foreign disturbers of the peace in the State of
Panama. ■■ (Mr. Seward, Sec. of State, to Mr. Aspinwall, Oct. 3, 1866,
74 MS. Dom.Let. 216.)
"This Department deems it important, in the interest of general
commerce, and especially of the carrying trade of that route, that
these disturbances should be guarded against. By the treaty with
New Granada of 1840 this (Toverninent has engaged to guarantee the
neutrality of the Isthmus of Panama. This engagement, however, has
never been acknowledged to embrace the duty of protecting the road
across it from the violence of local factions; but it is regarded as the
undoubted duty of the C-olombian (Tovernment to protect it against
attacks from local insurgents."
5 344.] ISTHMUS OF PANAMA : TREATY OF 1840. 39
Mr. Fish. Sec. of State, to Mr. Scruggs, Oct. 29, 1878. MS. lust. Colom-
bia, XVI. 148.
'• This Government, by the treaty with New (xranada of 1846, has engaged
a guarantee of neutrality of the Isthmus of Panama. This engagement,
however, has never been acknowledged to embrace the duty of protect-
ing the road across it from the violence of local factions. Although
such protection was of late efficiently given by the force under the
command of Admiral Almy, it appears to have been granted with the
consent and at the instance of the local authorities. It is, however,
regarded as the undoubted duty of the Colombian Government to pro-
tect the road against attacks from local insurgents. The discharge
of this duty will be insisted upon.'" (Mr. Fish, Sec. of State, to Mr.
Keeler, Oct. 27, 1873, 100 MS. Dom. Let. 294.)
" I return, with thanks for the opportunity of reading it, the despatch No.
20 of the 29th ultimo addressed to the Navy Department by Captain
Simpson of the Omaha from Panama. That officer appears to have
been animated with a sense of the obligations of this Goverament to
that of Colombia under the XXXVth Article of the Treaty of 1848. It
is true that that article guarantees the neutrality of the Isthmus of
Panama. It has, however, on several occasions been held by this
Department that the stipiilation does not apply in the event of an insur-
rection in that country, so far as to make it obligatory upon us to inter-
fere. Still, as by the same article we are granted a free transit across
the Isthmus, if the privileges should be trenched upon by an insurgent
force, we may be considered as having a perfect right to keep the passage
open. It is true that this is the duty of Colombia under the treaty, and
the occasions are so frequent where it is necessary for us to perform the
service at least by moral means, that the expediency of continuing the
guarantee may at least admit of question.'' (Mr. Fish. Sec. of State, to
Mr. Robeson, Sec. of Navy, Sept. 22, 1875, 110 MS. Dom. Let. 103.)
Art. 35 of the treaty between the United States and New Grenada
of Dec. 12, 1846, "clearly looks to keeping the Isthmian transit open,
even in time of war, as a public highway for our citizens and tlieir
wares, and therefore, in the opinion of this Department, furnishes no
ground /or any action by this Government in restraint or interrup-
tion of the transportation of the articles [' live packages containing a
torpedo launch, in five sections, ready to be set up 'j whidi Mr. Carter
reported as being on the Isthmus in transit [from the United States]
to Peru, or in respect of anj'^ othei* sliipments of similar character."
Mr. Evarts, Sec. of State, to Mr. Sherman, Sec. of Treasury. Nov. 14. 1S79,
130 MS. Dom. Let. 472.
"Naval commanders on Isthmus alreadv insti'ucled
Insurrection of , , , *• <• **•"„.,■
M,oA oc J *. to take proper i)i'ecautions loi- i)i()tecting interests ol
1884-85, and after. t- t- t i >->
our citizens.
Mr. Bayard, Sec. of State, to Boston Ice Co., tel., March 10. 1885, 154 MS.
Dom. Let. 513.
See Mr. Bayard, Sec-, of State, to Mr. Whitney, Sec. of Navy, March 17,
1885, 154 MS. Dom. Let. 504. '' Your request that instructions be sent
t<3 the commanding officer of any United States naval vessel at Panama
40 INTKROCEANIC COMMUNICATIONS. [§ 344.
to prevent any further interference with international communication
was promptly connnunicHted to my colleague, the Secretary of the
Navy."' (Mr. Bayard, Sec. of State, to Mr. Scrymser, Cent. & S. Am.
Telegraph Co., March 28, 1885, 154 MS. Dom. Let. 608.)
During the existence of turbulent and lawless conditions on the Isthmus, it
is desirable by the i)reaence of United States men-of-war to prevent dis-
turbance of the transit. (Mr. Bayard, Sec. of State, to Mr. Whitney,
Sec. of Navy, April 18, 1885, 155 MS. Dom. Let. 138.)
" The duty of the United States on the Isthmus of Panama is measured by
the terms and objects of its treaty with New Granada, and no employ-
ment of its forces either as a substittite for or support of local Govern-
ment is authorized. ■■ (Mr. Bayard, Sec. of State, to Mr. Scrymser,
April 16, 1885, 155 MS. Dom. Let. 117.)
See, also, Mr. Bayard. Sec. of State, to Mr. Whitney, Sec. of Navy, May 5,
1885, 155 MS. Dom. Let. 290.
April 14, 1885, the Colombian minister of foreign affairs informed
the minister of the United States at Bogota that he had received an
order from the President of the Republic to make known that the
State of Panama was in a perilous situation, viewed with reference to
the preservation of order, exterior as well as interior, — a situation
which threatened the sovereignty of Colombia over the territory, since
the Government found it impossible to send military forces thither
with the necessary rapidity, and that the time had therefore arrived for
soliciting the intervention of the United States in accordance with
Article XXXV. of the treaty of 1846, " to the end that pending the
arrival there of the national troops said Government will undertake
to maintain harmless the rights and authority of the Colombian Gov-
ernment in the State of Panama."
Mr. Restrepo, Colombian min. of for. aflf., to Mr. Scruggs, Amer. min., April
14, 1885, enclosed with Mr. Scruggs" No. 201. of April 16, 1885, For. Rel.
1885, 309-210.
"Emergencies growing out of civil war in the United States of Co-
lombia demanded of the Government at the beginning of this admin-
istration the employment of armed forces to fulfill its guaranties under
the thirty-fifth article of the treaty of 184G, in order to keep tlie transit
oj)en across the Isthmus of Panama. Desirous of exercising only the
powers expressly reserved to us by the treaty, and mindful of the i-ights
of Colombia, the forces sent to the Isthmus were instructed to confine
their action to 'positively and efficaciously' preventing the transit and
its accessories from being 'interrupted or embarrassed.'
" The execution of this delicate and responsible task necessarily in-
volved police conti'ol where the local authority was temporarily power-
less, but always in aid of the sovereignty of Colombia. Tlie prompt
and successful fulfillment of its duty by this Government was highly
appreciated by the (ilovernment of Colombia, and has been followed
by expi-essions of its satisfaction. High praise is due to the officers
and men engaged iu this service. The i-ost oration of peace on the
§344.] ISTHMUS OF PANAMA: TREATY OF 184C. 41
Isthmus by the re-establishment of the constituted government there
being thus accomplished, the forces of the United States were with-
drawn."
President Cleveland, annual message, Dec. 8, 1885. (For. Rel. 1885, p. iv.)
See Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian min., Oct. 7, 1885,
MS. Notes to Colombia, VII. 5'2.
" While the good will of the Colombian government toward oni' country is
manifest, the situation of American interests on the Isthmus of Pair^na
has at times excited concern, and invited friendly action looking to the
performance of the engagements of the two nations concerning the
territory embraced in the interoceanic transit. With the subsidence
of the Isthmian disturbances, and the erection of the State of Panama
into a federal district under the direct government of the constitutional
administration at Bogota, a new order of things has been inaugurated
which, although as yet somewhat experimental and affording scope for
arbitrary exercise of power by the delegates of the national authority,
promises much improvement." (President Cleveland, amnial message,
Dec. 6, 1886. (For. Rel. 1886, p. iv.)
"The Secretary of State, to whom has been I'ef erred the resolution
of the House of Representatives of the IGth instant, requesting infor-
mation as to what action has been taken 'by the Department of State
to protect the interests of American citizens whose property was
destroj'ed by Are caused by insurgents at Aspinwall, United States of
Colombia, in 1885,' has the honor to say that negotiations were com-
menced in October last and are now pending between the United
States and Colombia for the purpose of establishing an international
commission to whom may be referred for adjustment, according to
the rules of international law and the treaties existing between the
two countries, the claims of citizens of the United States against the
Government of Colombia growing out of the incident referred to in
the resolution of the House of Representatives.
"It is understood to be the duty of the Government of Colombia,
undei' the thirty-fifth article of the treaty between the United States
and New Granada of the 12th of December, 1846, to keep the transit
across the Isthmus of Panama upon any modes of communication
that now exist, or that maj^ hereafter be constructed, ' open and free
to the Govei'nment and citizens of the United States, and for tlie
transportation of any articles of produce, manufactures, or merclum-
dise, of lawful commerce, belonging to the citizens of the United
States.' This duty was expressly acknowledged by the Government
of New Granada in the claims convention with the United States of
the lOth of September, 1857, in which it was agreed that there sliould
be referred to a commission 'all claims on the part of corporations,
companies, or individuals, citizens of the United States, upon tlie
Government of New Granada, which shall have been presented prior
to the 1st day of September, 1859, either to the Department of State
at Washington, or to the minister of the United States at Bogota, and
42 INTEROCEANIC COMMUNICATIONS. [§ 344.
especially tliose for daniHge.s which were caused by the riot at Panama
on the 15th of April, 185f), for which the said Government of New
Granada a<*knowl«Ml}2:e.s its liability, arisinji; out of its privilej;<' and
obligation to preserve peace and good order along the transit route.'
"This convention was afterwards extended by a convention between
the United Stales and the United States of Colombia, concluded on
February 10, 1S(»4, in order that certain claims might be disposed of
which the commission under the former convention ha<l failed to
decide during the time therein allowed them.
"Un several occasions the Government of the United States, at tlie
instance and always with the assent of Colombia, has, in times of
civil tumult, sent its armed forces to the Isthmus of Panama to pre-
serve American citizens and property along the transit from injuries
which the Government of Colombia might at the time be unable to
prevent. But, in taking such steps, this Government has always
recognized the sovereignty and obligation of Colombia in the prem-
ises, and has never acknowledged, but, on the contrary, has expressly
disclaimed, the duty of protecting the transit against domestic
disturbance.
"The correspondence which this Department has had with the
Government of Colombia respecting the pending convention it is not
deemed compatible with the public interest to communicate to Con-
gress in the present state of negotiations."
Mr. Bayard, Sec. of State, Report, Teb. 19. 1887. House Ex. Doc. 183. 49
Cong. 3 sess. ; S. Doc. 264, 57 Cong. 1 sess. 119.
A.S to the claims referred to, see S. Doc. 264, .'57 Cong. 1 sess.
The United States is not responsible for the losses of citizens of the United
States resulting from the destruction of their property on the Isthmus
of Panama by insurgents in times of civil disturbance in Colombia.
(Mr. Bayard, Sec. of State, to Messrs. Howard's Sons. April 8, 1885, 155
MS. Dom. Let. 12; S. Doc. 264, 57 Cong. 1 sess. 9.)
It was stated that a claim of the Panama Railroad Company for payment
by the United States of losses occasioned by the destruction of some of
its property by the burning of Colon by insurgents in March 1885 would
" receive diie consideration " should the company " see fit ever seriously
and actually to present it." (Mr. Bayard, Sec. of State, to Mr. Barlow.
April 29, 1885, 155 MS. Dom. Let. 285; S. Doc. 264, 57 Cong. 1 sess. 15.)
In another letter to counsel for the Railroad Company, the Department
said: *• Obligation does not exist . . . upon the Government of the
United States to maintain peace, order and security to the lives and
property of such of its citizens as have seen fit to place themselves under
the jurisdiction of the United States of Colombia, and to this end to
maintain a naval force in those waters." (Mr. Bayard, Sec. of State,
to Mr. Barlow, Nov. 6. 1886, 162 MS. Dom. Let. 99.)
The company afterwards filed with the Department of State a claim against
Colombia, for the losses in question. The Colombian Government
insisted on the filing of all such claims at Bogota, to be dealt with by
the Colombian tribunals. The Department of State notified the Colom-
bian Government that tlie Government of the United States, in view of
§ 344.] ISTHMUS OF PANAMA : TREATY OF 1846, 43
the treaties between the two Governments, and of the informal agree-
ment as to arbitration, could not assent to the Colombian decree, so as
to compel citizens of the United States to resort for redress to the
Colombian tribunals. "The fact of this notification has been made
known to several claimants in response to their inqiiiries. But, while
stating its position generally, as above disclosed, it is not competent for
this Department to give advice in particular cases as to the course
claimants should pursue."' (Mr. Bayard, Sec. of State, to Messrs. Sliip-
man, Barlow, Larocque & Choate. Nov. 10, 1887, 166 MS. Dom. Let.
106; S, Doc, 264, 57 Cong. 1 sess. 164.)
See, also, Mr. Bayard, Sec. of State, to Messrs. Dodge & Sons, May 9, 1887,
164 MS. Dom. Let. 116; S. Doc, 264, 57 Cong. 1 sess, 128.)
For the decree of the Colombian Government, Aug. 19, 1885, in relati(m to
claims growing out of the insurrection, see For. Rel. 1885, 281.
With reference to the claim of M. Pascal, a citizen of France, for losses by
the burning of Colon, the Department of State remarked that '"the
responsibility, if any, rests with the Colombian Government," and that
the presentation of the claim was a matter that concerned the French
Government and not the Department. (Mr. Bayard, Sec. of State, to
Mr. Jeffries, March 1. 1886, 1.59 MS. Dom. Let. 192; S. Doc. 264. 57
Cong. 1 sess. 79.)
See Mr. Adee, Act. Sec. of State, to Mr. Abbott, min. to Colombia, Oct. 24,
1890, For. Rel. 1890. 269; Mr. Adee. Second Assist. Sec. of State, to Mr.
Bushe, Dec. 8, 1891, 184 MS. Dom. Let. 887; S. Doc. 264. 57 Cong. 1 sess.,
269.
"If for any reason Colombia fails to keep transit open and free,
as that Gov^ernnient is bound by treaty of 1846 to do, United States
are autliorized by same treaty to afford protection."
Mr. Gresham, Sec. of State, to Gen. Newton, tel., Feb. 1, 1895. 200 MS.
Dom. Let. 449.
In March, 1895, Captain Cromwell, of the U. S. S. Atlanta, with the
assent of the local authorities, landed a force at Bocas del Toro for
the protection of American property.
November 24, 1901, Captain Perry, of the U. S. S. Iowa, in con-
formity with telegraphic instructions from Wash-
Revolution of 1901-2. , -^ , , , f ^ - T3 • , f -,1
ington, landed rorces at ranama, mterrerence with
the line of railway by the Liberals having taken place.
At a conference held on board the U, S. S. Marietta at Colon,
November 28, 1901, the local commanders of the Government and
Liberal forces being present, it was agreed that the city of Colon
should on tlie following day be turned over to the charge of the
naval officers of the United States, Great Britain, and France then
present, by whom it should in turn be handed over to the Govern-
ment commander, the object being to avoid the useless effusion of
blood. About this time much fighting took place along the line of
the railway, and for a few days armed guards from the United States
44 INTEROCEANIC COMMUNICATIONS. [§344.
men-of-war were put on board the trains, the use of which was denied
both to the Government and tlie Liberal forces.
On January 20, 15)02, Captain Mead, of the U. iS. S. Philadelphia,
wrote to the Liberal general, llerrera, on board the Almirante
Padilla, which was then entering the harbor of Panama, that no
firing from his vessel nmst endanger in any way foreign shipping in
the port, and that there must be no bombardment.
January 27, 1902, Caj)tain Reisinger, of the U. S. S. Philadelphia,
reported that the Government was then using the railroad freely and
constantly for the transportation of troops and ammunition, and had
adopted forcible measures for the purpose of preventing the Liberals
from using it or from entering Colon and Panama, thus interrupting
the transit and placing the passengers in danger. Against this
action the consul-general of the United States at Panama protested.
Captain Reisinger subsequently reported that, after February 4, the
Government had sent a guard of about fifty men in a passenger coach
next to the locomotive on each train leaving Colon or Panama, this
coach being separated from the regular passenger coaches by bag-
gage and express cars.
September 19, 1902, Commander McLean, of the U. S. S. Cincin-
nati, addressed an identical note to the commanders of the Govern-
ment and revolutionary forces, in which he stated that the United
States naval forces were guarding the railway trains and the line of
transit across the Isthmus from sea to sea, and that no persons what-
ever would be allowed to obstruct, embarrass, or in any manner inter-
fere with the trains or the transit route. He added that no armed
men, except forces of the United States, would be allowed to come
upon or use the line.
September 20,1902, the civil war still continuing, Mr. Moody, Sec-
retary of the Navy, cabled to Commander McLean, of the U. S. S. Cin-
cinnati, that the United States guaranteed the perfect neutrality of
the Isthmus, and that free transit from sea to sea should not be inter-
rupted or embarrassed ; that Colombia guaranteed that the right of
way or transit across the Isthmiis should be open and free to the
Government and citizens of the United States and their property;
that any transportation of troops which might contravene these
stipulations should not be sanctioned, nor should any use of the
road be permitted "which might convert the hne of transit" into a
" theater of hostihty;" that the transportation of Government troops
in such a manner as not to endanger the transit or provoke hostili-
ties might not be objectionable, but that the Department must rely
on his judgment to decide such questions, as the conditions might
change from day to day.
It appears that the immediate occasion of Commander McLean's
placing American guards on board the railway trains was that, after
§ 344.] ISTHMUS OF PANAMA : TREATY OF 1846. 45
the surrender of Agua Dulce, the Colombian Government withdrew the
guards which it had itself been maintaining, and established guards
outside the cities of Colon and of Panama, who stopped the trains
before entering those places for the purpose of arresting any mem-
bers of the Liberal party who might be found on board. Besides,
in order to insure the stopping of trains, obstructions were placed
upon the tracks. Under these circumstances Commander McLean
landed detachments and put guards on each train. He gave permis-
sion, however, for the transportation of a number of Government
troops, unarmed, their arms being carried in a baggage car on another
train ; but he advised the authorities that this should not be taken as
a precedent, and that each case would be decided on its merits when
presented.
October 2,1902, Rear- Admiral Casey, who had arrived at Panama
on the U. S. S. Wisconsin, observed, on a trip across the Isthmus,
from ninety to a hundred Government soldiers, some of whom were
ill, ((uartered in a car promiscuously with men, women, and children,
so that the stench coming from the car was unbearable. For sani-
tary reasons, therefore, among others, he issued an order in which
he stated that while the trains were running under the protection of
the United States he must "decline the transportation of any com-
batant or any ammunition and arms over the road which might cause
an interruption of traffic or convert the line of transit into a theater
of hostility." The governor of Panama protested against any restric-
tion of the Government's use of the road as an invasion of its
sovereign and treaty rights; on the other hand, the commander
of the revolutionary forces protested against the transportation of-
any Government troops or munitions of war, and virtually threatened
the interruption of the transit if such transportation should be allowed.
Now and then, however, the transportation of particular military
officers of the Government was permitted, as well as the occasional
dispatch of arms and amnmnition; and at the end of October, 1902,
the Government was permitted to transport troops on special separate
trains, not under American guard, at hours other than those of the
regular trains. At this time Government reinforcements had arrived
on the Isthnms, so that it seemed probable that the Government
would be able to maintain its supremacy along the line of the road
and insure an uninterrupted transit. About the middk> of November,
1902, it appearing that the Colombian Government was then able to
maintain free transit and fulfill its treaty obligations on the Isthnuis,
Admiral Casey issued orders for the withdrawal of all American
guards from the railway trains. Peace between the Government
and the revokitionarv forces was concluded on the 21st of Novem-
ber in the cabin of tke admiral's fiagsliip.
S. Doc. 14;^ nH Cong. 2 so.ss. l«)2, lt)4. 202. 20.S, 210. 212-214. 229, 2.^1 2;«: S. Doc.
10, 58 Cong, special sess. 4.5, 40, 49, 50, .52, .54.5.5, 70, 79.
46 INTEROCEANIC COMMUNICATIONS. f§ 344.
Nov. 2, 1908, Mr. Darling, Actiiij; Socrotary of the Navy, refer-
ring to an apprehended uprising on the Isthnum of
Be volution at Panama, cabled to the commander of the U, S. S.
Panama, 1903.
Nashinlle, at Colon, and of the Dixie, at Kingston,
Jamaica, to "maintain free and uninterrupted transit," and, if an
interruption was threatened by an armed force, to occupy the line
of the railroad and prevent the " landing of any armed force with
hostile intent, either Government or insurgent, either at Colon,
Porto Bello, or other point " ; also, to prevent the landing of a Govern-
ment force which was reported to be approaching the Isthmus in
vessels, if in their judgment such landing would precipitate a con-
flict. Similar instructions were cabled to the commander of the Mar-
blehead, at Acapulco, and of the Boston, at San Juan del Sur, which
were to proceed immediately to Panama, and prevent the "land-
ing of any armed force, either Government or insurgent, with hos-
tile intent at any point within 50 miles of Panama." Nov. 8
Mr. Darling telegraphed to the commander of the Nashville: "In the
interest of peace make every effort to prevent Government troops
at Colon from proceeding to Panama. The transit of the Isthmus
must be kept open and order maintained." On Nov. 5 Mr. Moody,
Secretary of the Navy, cabled to the Boston to prevent the recurrence
of a reported bombardment of Panama by a Colombian gimboat,
and to " prevent any armed force of either side from landing at
Colon, Porto Bello, or vicinity."
For. Rel. 1903, 247, 248.
"By the act of June 28, 1902, the Congress authorized the Presi-
dent to enter into treaty with Colombia for the build-
The Republic of j^g of the canal across the Isthmus of Panama ; it
ident Roose- being provided that in the event of failure to secure
veit's Annual guch treaty after the lapse of a reasonable time.
Message, Dec. 7, .
1903. recourse should be had to building a canal through
Nicaragua. It has not been necessary to consider
this alternative, as I am enabled to lay before the Senate a treaty
providing for the building of the canal across the Isthmus of Panama.
This was the route which commended itself to the deliberate judg-
ment of the Congress, and we can now acquire by treaty the right
to construct the canal over this route. The question now, therefore,
is not by which route the isthmian canal shall be built, for that
question has l)een definitely and irrevocably decided. The question
is simply whether or not we shall have an isthmian canal.
"When the Congress directed that we should take the Panama
route under treaty with (\)l()ml)ia, tiie essence of the condition, of
course, referred not to the (lovernment which controlled that route,
but to the route itself; to the territor}' across which the route lay,
§ 344.] REPUBLIC OF PANAMA. 47
not to the iiairie which for the moment the territory bore on the map.
The purpose of the law was to authorize the President to make a
treaty with the power in actual control of the Isthmus of Panama.
This purpose has been fulfilled.
" In the year 1846 this Government entered into a treaty with New
Granada, the predecessor upon the Isthmus of the Republic of Colom-
bia and of the present Republic of Panama, by which treaty it was
provided that the Government and citizens of the United States
should always have free and open light of way or transit across the
Isthmus of Panama by any modes of communication that might be
constructed, while in return our Government guaranteed the perfect
neutrality of the above-mentioned Isthmus with the view that the
free transit from the one to the other sea might not be interrupted or
embarrassed. The treaty vested in the United States a substantial
property right carved out of the rights of sovereignty and property
which New Granada then had and possessed over the said territory.
The name of New Granada has passed away and its territory has been
divided. Its successor, the Government of Colombia, has ceased to
own any property in the Isthmus. A new Republic, that of Panama,
which was at one time a sovereign state, and at another time a mere
department of the successive confederations known as New Granada
and Colombia, has now succeeded to the rights which first one and
then the other formerly exercised over the Isthmus. But as long as
the Isthmus endures, the mere geographical fact of its existence, and
the peculiar interest therein which is required by our position, per-
petuate the solemn contract which binds the holders of the territory
to respect our right to freedom of transit across it, and binds us in
return to safeguard for the Isthmus and the world the exercise of
that inestimable privilege. The true interpretation of the obliga-
tions upon which the United States entered in this treaty of 1846 has
been given repeatedly in the utterances of Presidents and Secretaries
of State. Secretary Cass in 1858 officially stated the position of this
Government as follows:
" ' The progress of events has rendered the interoceanic route across
the narrow portion of Central America vastly important to the com-
mercial world, and especially to the United States, whose possessions
extend along the Atlantic and Pacific coasts, and demand the speedi-
est and easiest modes of communication. While the rights of sov-
ereignty of the states occupying this region should always be respected,
we shall expect that these rights be exercised in a spirit befitting the
occasion and the wants and circumstances that have arisen. Sover-
eignty lias its duties as well as its rights, and none of these local
governments, even if administered with more regard to the just
demands of other nations than they have been, would be permitted,
in a spirit of Eastern isolation, to close the gates of intercourse on
48 INTEROCEANIC COMMUNICATIONS. [§ 344.
the groat highways of the world, and justify the act by the preten-
sion that these avenues of trade and travel belong to them and that
they choose to shut them, or, what is almost equivalent, to encum-
ber them with such unjust regulations as would prevent their gen-
eral use.'
"Seven years later, in 1865, Mr. Seward in different communica-
tions took the following position :
" 'The ITnited States have taken and will take no interest in any
question of internal revolution in the State of Panama, or any State
of the United States of Colombia, but will maintain a perfect neu-
trality in connection with such domestic altercations. The United
States will, nevertheless, hold themselves ready to protect the transit
trade across the Isthmus against invasion of either domestic or foreign
disturbers of the peace of the State of Panama. . . . Neither the
text nor the spirit of the stipulation in that article by which the
United States engages to preserve the neutrality of the Isthmus of
Panama, imposes an obligation on this Government to comply with
the requisition [of the President of the United States of Colombia
for a force to protect the Isthmus of Panama from a body of insur-
gents of that country]. The purpose of the stipulation was to
guarantee the Isthmus against seizure or invasion by a foreign
power only.'
"Attorney-General Speed, under date of November 7, 1865,
advised Secretary Seward as follows:
" ' From this treaty it can not be supposed that New Granada
invited the United ^States to become a party to the intestine troubles
of that Government, nor did the United States become bound to take
sides in the domestic broils of New Granada. The United States
did guarantee New Granada in the sovereignty and property over
the territory. This was as against other and foreign governments.'
" For four hundred years, ever since shortly after the discovery of
this hemisphere, the canal across the Isthmus has been planned.
For two score years it has been worked at. When made it is to last
for the ages. It is to alter the geography of a continent and the trade
routes of the world. We have shown by every treaty we have
negotiated or attempted to negotiate with the peoples in control of
the Isthmus and with foreign nations in reference thereto our con-
sistent good faith in observing our obligations; on the one hand to
the peoples of the Isthmus, and on the other hand to the civilized
world whose commercial rights we are safeguarding and guaran-
teeing by our action. We have done our duty to others in letter
and in spirit, and we have shown the utmost forbearance in exacting
our own rights.
"Last spring, under the act above referred to, a treaty concluded
betweei the representatives of the Republic of Colombia and of our
§ 344.] REPUBLIC OF PANAMA. 49
Government was ratified by the Senate. This treaty was entered
into at the urgent soHcitation of the people of Colombia and after a
body of experts appointed b}^ our Government especially to go into
the matter of the routes across the Isthmus had pronounced unani-
mously in favor of the Panama route. In drawing up this treaty
every concession was made to the people and to the Government of
Colombia. We were more than just in dealing with them. Our
generosity was such as to make it a serious question whether we had
not gone too far in theh' interest at the expense of our own; for in
our scrupulous desire to pay all possible heed, not merely to the real
but even to the fancied rights of our weaker neighbor, who already
owed so much to our protection and forbearance, we yielded in all
possible ways to her desires in drawing up the treaty. Nevertheless
the Government of Colombia not merely repudiated the treaty, but
repudiated it in such manner as to make it evident by the time the
Colombian Congress adjourned that not the scantiest hope remained
of ever getting a satisfactory treaty from them. The Government
of Colombia made the treaty, and j^et when the Colombian Congress
was called to ratify it the vote against ratification was unanimous.
It does not appear that the Government made any real effort to
secure ratification.
"Immediately after the adjournment of the Congress a revolution
broke out in Panama. The people of Panama had long been dis-
contented with the Republic of Colombia, and the}' had been kept
quiet only by the prospect of the conclusion of the treaty, which
was to them a matter of vital concern. When it became evident
that the treaty was hopelessly lost, the people of Panama rose liter-
ally as one man. Not a shot was fired by a single man on the Isth-
mus in the interest of the Colombian Government. Not a life was
lost in the accomplishment of the revolution. The Colombian troops
stationed on the Isthmus, who had long been unpaid, made common
cause with the people of Panama, and with astonishing unanimity
the new Republic was started. The duty of the United States in
the premises was clear. In strict accordance with the principles
laid down by Secretaries Cass and Seward in the official documents
above quoted, the United States gave notice that it would permit
the landing of no expeditionary force, the arrival of which would
mean chaos and destruction along the line of the railroad and of the
proposed canal, and an interruption of transit as an inevitable con-
sequence. The de facto Government of Panama was recognized in
the following telegram to Mr. Ehrman:
"'The people of Panama have, by apparently unanimous move-
ment, dissolved their political connection with the Republic of Colom-
bia and resumed their independence. When you are satisfied that
H. Doc. 551— vol 3 4
50 INTEROCEANIC COMMUNICATIONS. [§ 344.
a de facto government, republican in form and without substantial
opposition from its own people, has been established in the State of
Panama, you will enter into relations with it as the responsible gov-
ernment of the territory and look to it for all due action to protect
the persons and property of citizens af the United States and to keep
open the isthmian transit, in accordance with the obligations of ex-
isting treaties governing the relations of the United States to that
territory.'
''The Government of Colombia was notified of our action by the
following telegram to Mr. Beaupre :
"'The people of Panama having, by an apparently unanimous
movement, dissolved their political connection with the Republic of
Colombia and resumed their independence, and having adopted a gov-
ernment of their own, republican in form, with which the Govern-
ment of the United States of America has entered into relations, the
President of the United States, in accordance with the ties of friend-
ship which have so long and so happily existed between the respec-
tive nations, most earnestly commends to the Governments of Colom-
bia and of Panama the peaceful and equitable settlement of all
questions at issue between them. He holds that he is bound not
merel}^ by treaty obligations, but by the interests of civilization, to
see that the peaceful traffic of the world across the Isthmus of Pan-
ama shall not longer be disturbed by a constant succession of unneces-
sary and wasteful civil wars.'
"When these events happened, fifty-seven years had elapsed since
the United States had entered into its treaty with New Granada.
During that time the Governments of New Granada and of its suc-
cessor, Colombia, have been in a constant state of flux. The follow-
ing is a partial list of the disturbances on the Isthmus of Panama
during the period in question as reported to us by our consuls. It is
not possible to give a complete list, and some of the reports that
speak of 'revolutions' must mean unsuccessful revolutions.
"May 22, 18.50. —Outbreak; two Americans killed. War ve.s.sel demanded to quell
outbreak.
"Octol>er, 18.5(). — Revolutionary plot to bring about independence of the Isthmus.
"July 22, 18.')l. — Revolution in four southern provinces.
"NovemlxM- 14, 18.51. —Outbreak at Chagres. Man-of-war requested for Chagre.s.
"June 27, 18.5:^. -Insurrection at Bo<:;ota, and consequent disturbance on Isthmus.
War ves-sel demanded.
"May 2.3, 18.54. — Political disturbances: war vessel recjuested.
"June 28, 18,54.— Attempted revolution.
"Octoljer 24, 18.54.— Independence of Isthmus demanded by provincial lejjislature.
"April, 18.50. — Riot, and ma.s.sacre of Americans.
"May 4, 18.5(5. -Riot.
"May 18, 18.56.— Riot.
"June .3, 18.5(5.— Riot.
"October 2, 1856. — ConOict between two native parties. United States forces landed.
§ 344.] REPUBLIC OF PANAMA. 51
"December 18, 1858. — Attempted secession of Panama.
"April, 1859.— Riots.
"September, I860.— Outbreak.
"October 4, 1860. — Landing of United States forces in consequence.
"May 23, 1861. ^Intervention of the United States forces required by intendente.
"October 2, 1861. — Insurrection and civil war.
"April 4, 1862. — Measures to prevent rebels crossing Isthmus.
"June 13, 1862. — Mosquera's troops refused admittance to Panama.
"March, 1865.^Re volution, and United States troops landed.
"August, 1865. — Riots; unsuccessful attempt to invade Panama.
"March, 1866. — Unsuccessful revolution.
"April, 1867. — Attempt to overthrow Government.
"August, 1867. — Attempt at revolution.
"July 5, 1868. — Revolution; provisional government inaugurated.
"August 29, 1868. — Revolution; provisional government overthrown.
"April, 1871. — Revolution; followed apparently by counter revolution.
"April, 1873. — Revolution and civil war which lasted to October, 1875.
"August, 1876. — Civil war which lasted until April, 1877.
"July, 1878.— Rebellion.
"December, 1878.— Revolt.
"April, 1879.— Revolution.
"June, 1879. — Revolution.
"March, 1883.— Riot.
"May, 1883.— Riot.
"June, 1884. — Revolutionary attempt.
"December, 1884. — Revolutionary attempt.
"January, 1885. — Revolutionary disturbances.
"March, 1885.— Revolution.
"April, 1887. — Disturbance on Panama Railroad.
"November, 1887. — Disturbance on line of canal.
"January, 1889.— Riot.
"January, 1895. — Revolution which lasted until April.
"March, 1895. — Incendiary attempt.
"October, 1899.— Revolution.
"February, 1900, to July, 1900.— Revolution.
"Januarj^ 1901. — Revolution.
"July, 1901. — Revolutionary' disturbances.
"September, 1901. — City of Colon taken by retels.
"March, 1902. — Revolutionary disturbances.
"July, 1902.— Revolution.
''The above is only a partial list of the revolutions, rebellions,
insurrections, riots, and other outbreaks that have occurred durin<::;
the period in question; yet they number 53 for the 57 years. It will
be noted that one of them lasted for nearly three years before it was
(juelled; another for nearly a year. In short, the experience of over
half a century has shown Colombia to be utterly incapable of keeping
order on the Isthmus. Onl}- the active interference of the United
States has enabled her to preserve so nuich as a semblance of .sov-
ereignty. Had it not been for the exercise by the United States of
the police power in her interest, her connection with the Isthnuis
would have been sundered long ago. In 1856, in 1860, in 1873, in
52 TNTEROCEANIC COMMUNICATIONS. [§ 344.
1885, in 1901, and again in 1902, sailors and marines from United
States vvai"ships were forced to land in order to patrol the Isthmus,
to protect life and property, and to see that the transit across the
Isthnms was kept open. In 1861, in 1862, in 1885, and in 1900,
the Colombian Government asked that the United States Govern-
ment would land troops to protect its interests and maintain order
on the Isthnms. Perhaps the most extraordinary request is that
which has just been received and which runs as follows:
" 'Knowing that revolution has already commenced in Panama
[an eminent Colombian] says that if the Government of the United
States will land troops to preserve Colombian sovereignty, and the
transit, if requested by Colombian charge d 'affaires, this Government
will declare martial law; and, by virtue of vested constitutional
authority, when public order is disturbed, will approve by decree
the ratification of the canal treaty as signed; or, if the Government
of the United States prefers, will call extra session of the Congress —
with new and friendly members — next May to approve the treaty.
[An eminent Colombian] has the perfect confidence of vice-president,
he says, and if it became necessary will go to the Isthmus or send
representative there to adjust matters along above lines to the satis-
faction of the people there.'
"This dispatch is noteworthy from two standpoints. Its offer of
immediately guaranteeing the treaty to us is in sharp contrast with
the positive and contemptuous refusal of the Congress which has
just closed its sessions to consider favorably such a treaty; it show s
that the Government which made the treaty really had absolute
control over the situation, but did not choose to exercise this control.
The dispatch further calls on us to restore order and secure Colom-
bian supremacy in the Isthmus, from which the Colombian Govern-
ment has just by its action decided to bar us by preventing the
construction of the canal.
"The control, in the interest of the commerce and traffic of the
whole civilized world, of the means of undisturbed transit across
the Isthmus of Panama lias become of transcendent importance to
the United States. We have repeatedly exercised this control by
intervening in the course of domestic dissension, and by protecting
the territory from foreign invasion. In 1853 Mr. Everett assured
the Peruvian minister that we should not hesitate to maintain the
neutrality of the Isthnms in the case of war between Peru and Colom-
bia. In 1864 Colombia, which has always been vigilant to avail
itself of its privileges conferred by the treaty, expressed its expecta-
tion that in the event of war between Peru and Spain the United
States would carry into effect the guaranty of neutrality. There
have been few administrations of the State Department in which
this treaty has not, either by the one side or the other, been used as a
§ 344.] ' REPUBLIC OF PANAMA. 53
basis of more or less important demands. It was said by Mr. Fish
in 1871 that the Department of State had reason to beheve that an
attack upon Colombian sovereignty on the Isthnms had, on sev-
eral occasions, been averted by warning from this Government. In
1886, when Colombia was under the menace of hostilities from Italy
in the Cerruti case, Mr. Bayard expressed the serious concern that
the United States could not but feel, that a European power should
resort to force against a sister republic of this hemisphere, as to the
sovereign and uninterrupted use of a part of whose territory we are
guarantors under the solemn faith of a treaty.
"The above recital of facts establishes beyond question: First, that
the United States has for over half a century patiently and in good
faith carried out its obligations under the treaty of 1846; second,
that when for the first time it became possible for Colombia to do
anything in requital of the services thus repeatedly rendered to it
for fifty-seven yearS by the United States, the Colombian Govern-
ment peremptorily and offensively refused thus to do its part, even
though to do so would have been to its advantage and immeasurably
to the advantage of the State of Panama, at that time under its
jurisdiction; third, that throughout this period revolutions, riots, and
factional disturbances of every kind have occurred one after the other
in almost uninterrupted succession, some of them lasting for months
and even for years, while the central government was unable to put
them down or to make peace with the rebels; fourth, that these dis-
turbances instead of showing any sign of abating have tended to
grow more numerous and more serious in the immediate past; fifth,
that the control of Colombia over the Isthmus of Panama could not
be maintained without the armed intervention and assistance of the
United States. In other words, the Government of Colombia, though
wholly unable to maintain order on the Isthmus, has nevertheless
declined to ratify a treaty the conclusion of wiiicli opened the only
chance to secure its own stability and to guarantee ])ermanent peace
on, and the construction of a canal across, the Isthmus.
"Under such circumstances the Government of the United States
would have been guilty of folly and weakness, amounting in their
sum to a crime against the Nation, had it acted otherwise than it
did when the revolution of November 8 last took place in Panama.
This great enterprise of building the interoceanic canal can not be
held up to gratify the whims, or out of respect to the governmental
impotence, or to the even more sinister and evil political peculiari-
ties, of people who, though they dwell afar off, yet, against the wish
of the actual dwellers on the Isthmus, assert an unreal supremacy
over the territory. The possession of a territory fraught with such
peculiar capacities as the Isthmus in question carries with it obli-
gations to mankind. The course of events has shown that this
54 tnteroceanic communications. [§ 344.
canal can not he built by private enterprise, or by any other nation
than our own; therefore it must be built by the United States.
" Every effort has been made by the Government of the United
States to persuade (\)lombia to follow a course which was essen-
tially not only to our interests and to the interests of the world, but
to the interests of Colombia itself. These efforts have failed; and
Colombia, by her persistence in repulsing the advances that have
been made, has forced us, for the sake of our own honor, and of the
interest and well-being, not merely of our own people, but of the
people of the Isthmus of Panama and the people of the civilized
countries of the world, to take decisive steps to bring to an end a
condition of affairs which had l)ecome intolerable. The new Repub-
lic of Panama immediately offered to negotiate a treaty with us.
This treaty I herewith submit. By it our interests are better
safeguarded than in the treaty with Colombia which was ratified
by the Senate at its last session. It is better in its terms than the
treaties offered to us by the Republics of Nicaragua and Costa Rica.
At last the right to begin this great undertaking is made available.
Panama has done her part. All that remains is for the American
Congress to do its part and forthwith this Republic will enter upon
the execution of a project colossal in its size and of well-nigh incal-
culable possibilities for the good of this country and the nations of
mankind.
''By the provisions of the treaty the United States guarantees
and will maintain the independence of the Republic of Panama.
There is granted to the United States in perpetuity the use, occupa-
tion, and control of a strip ten miles wide and extending tlu-ee nau-
tical miles into the sea at either terminal, with all lands lying outside
of the zone necessary for the construction of the canal or for its
auxiliary works, and with the islands in the Bay of Panama. The
cities of Panama and Colon are not embraced in the canal zone,
but the United States assumes their sanitation and, in case of need,
the maintenance of order therein. The United States enjoys within
the granted limits all the rights, power, and authority which it
would possess were it the sovereign of the territory to the exclusion
of the exercise of sovereign rights by the Republic. All railway
and canal property rights belonging to Panama and needed for the
canal i)ass to the United States, including any property of the
respective companies in the cities of Panama and Colon; the
works, property, and })ersonnel of the canal and railways are exempted
from taxation as well in the cities of Panama and Colon as in the
canal zone and its dependencies. Free immigration of the person-
nel and im])ortation of suj)plies for the construction and operation of
the canal are granted. Provision is made for the us(> of military
force and the building of fortificat ions by 1 lie I nited States for the pro-
§ 344,] REPUBLIC OF PANAMA. 55
tection of the transit. In other details, particularly as to the acquisi-
tion of the interests of the New Panama Canal Company and the
Panama Railway by the United States and the condemnation of private
property for the uses of the canal, the stipulations of the Hay-
Herran treaty are closely followed, while the compensation to be
given for these enlarged grants remains the same, being ten millions
of dollars payable on exchange of ratifications; and, beginning nine
years from that date, an annual payment of $250,000 during the
life of the convention.''
President Roosevelt, annual message, Dec. 7, 1903. (For. Rel. 190.3, p. xxxii.)
"The President yesterday fully recognized the Republic of Pan-
ama and formally received its minister plenipotentiary. You will
promptly communicate this to the Government to which you are
accredited."
Mr. Hay, Sec. of State, to all U. S. dip. ropresontatives, circular teleo;rain, Nov.
14, 1903. (MS. In.st. Argentine Kepiii)lic, XVIT. (5.38.)
For the reception by the President of M. Bunaii-Varilla, as envoy extraordinary
and minister plenipotentiary from the Rcpul)lic of Panama, see For. Kel.
1903, 24.5. In presenting his lettei-s of credence, M. Bunau-Varilla said:
"Mr. President: In according to the minister plenipotentiary of the Repuhhc of
Panama the honor of presenting to you his letters of credence you admit
into the family of nations the weakest and the last born of the republics of
the New World.
" It owes its existence to the outburst of the indignant gric^f which stirred tlie hearts
of the citizens of the Istlinuis on beholding the despotic action whicii sougiit
to forbid their country from fulfilling tlie destinies vouchsafed to it by
Providence.
"In consecrating its right to exist, Mr. President, you put an end to what appeared
to be the interminable controverey as to the rival waterways, and you defi-
nitely inaugurate the era of the achievement of the Panama Canal.
"From this time forth the determination of the fate of the canal depends upon two
elements alone, now brought face to face, singularly unlike as regards tiieir
authority and power, l)ut wholly e([ual in their conunon and ardent desire to
.see at last the accomplishment of the heroic enterpris(> for piercing tlie moun-
tain l)arrier of the Andes.
"The higliway from Kurope to Asia, following the pathway of tiie sun, is now to
Ih> realized.
"The earl>' attempts to (ind sucli a way unexpectedly resulted in tlie greatest of
all historic achievements, the di.scovery of .\inerica. Centiu'ies ha\e since
rolled by, but the pathway sought has hitiierto rciuained in the realm of
dreams. To-day, Mr. President, in i-esponse to your summons, it l)ecomcs a
reality.''
The President, in reply, said:
"Mr. Minister: I am mucii gratified to receive the letteis whereby you aic accred-
ited to the Government of the United States in tlu^ capa<-ity of envoy extraor-
dinary and minister plenipotentiary of the Republic of Panama.
"In accordance with its l()ng-<'stal)lished rule, this (lovernment lias taken cogni-
zance of the act of tlie ancient territory of Panama in reasserting the right of
s«'lf-<-ontrol and, seeing in the I'ccent events on the Islluniis an unopposed
expre.ssion of the will of the people of Panama and tin' coiiliriiia! ion of
56 INTEROCEANir COMMUNICATIONS. [§344.
their declared independence by the institution of a de facto government,
repulilicnn in form and spirit, and alike able and resolved to discharge the
obligations jK>rtaining to sovereignty, we have entered into relations with
the new Republic. It is fitting that we should do so now, as we did nearly
a century ago when the Latin peoples of America proclaimed the right of
popular government, and it is equally fitting that the United Stat<>s should,
now as then, l)e the first to stretch out the hand of fellowship and to observe
toward the new-born state the rules of equal intercourse that regulate the
relations of sovereignties toward one another.
"I feel that I express the wish of my countrj'men in assuring you, and through
j'ou the people of the Republic of Panama, of our earnest hope and desire that
stability and prosperity shall attend the ne.w state, and that, in harmony
with the United States, it may l^e the providential instrument of untold bene-
fit to the civilized world through the opening of a highway of universal com-
merce across its exceptionally' favored territory.
"For yourself, Mr. Minister, I wish success in the discharge of the important mission
to which you have been called."
"I lay before the Congress for its information a statement of my
action up to this time in executing the act entitled
^^*jan 4^rm '^^ '^^ ^^^ ^° provide for the construction of a canal
connecting the waters of the Atlantic and Pacific
oceans/ approved June 28, 1902.
"By the said act the President was authorized to secure for the
United States the property of the Panama Canal Company and the
perpetual control of a strip 6 miles wide across the Isthmus of Panama.
It was further provided that 'should the President be unable to
obtain for the United States a satisfactory title to the property of
the New Panama Canal Company and the control of the necessary
territory of the Republic of Colombia . . . within a reasonble
time and upon reasonable terms, then the President' should
endeavor to provide for a canal by the Nicaragua route. The lan-
guage quoted defines with exactness and precision what was to be
done, and what as a matter of fact has been done. The President
was authorized to go to the Nicaragua route only if within a reason-
able time he could not obtain 'control of the necessary territory of
the Republic of Colombia.' This control has now been obtained;
the provision of the act has been complied with; it is no longer pos-
sible under existing legislation to go to the Nicaragua route as an
alternative.
"This act marked the climax of the effort on the part of the United
States to secure, so far as legislation was concerned, an interoceanic
canal across the Isthmus. The effort to secure a treaty for this pur-
pose with one of the Central American republics did not stand on the
same footing with the effort to secure a treaty under any ordinary
conditions. The proper position for the United States to assume in
reference to this canal, and therefore to the governments of the Isth-
mus, had been clearly set forth by Secretary Cass in 1858. In my
§ 344.] REPUBLIC OF PANAMA. 57
Annual Message I have already quoted what Secretary Cass said ; but
I repeat the quotation here, because the principle it states is funda-
mental.
" While the rights of sovereignty of the states occupying this region (Central America)
should always be respected, we shall expect that these rights be exercised in a spirit befit-
ting the occasion and the wants and circumstances that have arisen. Sovereignty has its
duties as well as its rights, and none of these local governments, even if administered with
more regard to the just demands of other nations than they have been, would be permit-
ted, in a spirit of Eastern isolation, to close the gates of intercourse on the great highways
of the world, and justify the act by the pretension that these avenues of trade and travel
belong to them and that they choose to shut them, or, what is almost equivalent, to encum-
ber them with such unjust regulations as would prevent their general use.
''The principle thus enunciated by Secretary Cass was sound then
and it is sound now. The United States has taken the position
that no other government is to build the canal. In 1889, when
France proposed to come to the aid of the French Panama Company
by guaranteeing their bonds, the Senate of the United States in exec-
utive session, with only some three votes dissenting, passed a reso-
lution as follows:
"That the Government of the United States will look with serious concern and disap-
proval upon any connection of any European government with the construction or control
of any ship canal across the Isthmus of Darien or across Central America, and must regard
any such connection or control as injurious to the just rights and interests of the United
States and as a menace to their welfare.
"Under the Hay-Pauncefote treaty it was explicitly provided
that the United States should control, police, and protect the canal
which was to be built, keeping it open for the vessels of all nations
on equal terms. The United States thus assumed the position of
guarantor of the canal and of its peaceful use by all the world. The
guarantee included as a matter of course the building of the canal.
The enterprise was recognized as responding to an international
need; and it would be the veriest travesty on right and justice to
treat the governments in possession of the Isthmus as having the
right, in the language of Mr. Cass, ' to close the gates of intercourse
on the great highways of the world, and justify the act by the pre-
tension that these avenues of trade and travel belong to them and
that they choose to shut them.'
"When this Government submitted to Colombia the Hay-IIerran
treaty three things were, therefore, already settled.
"One was that the canal should be built. The time for delay, the
time for permitting the attempt to be made l)y private enterprise,
the time for permitting any government of antisocial spirit and of
imperfect development to bar the work, was past. The United
States had assumed in connection with the canal certain res])onsi-
bilities not only to its own people, but to the civilized world, which
58 TNTEROCFANIC COMMUNICATIONS. [§ 344.
imperatively (iomanded that there should no longer be delay in
beginning the work.
"Second. While it was settled that the canal should be built
without unnecessary or improper delay, it was no less clearly shown
to be our purpose to deal not merely in a spirit of justice but in a
spirit of generosity with the people through whose land we might
build it. The Hay-IIerran treaty, if it erred at all, erred in the
direction of an overgenerosity toward the Colombian Government.
In our anxiety to be fair we had gone to the very verge in yielding to
a weak nation's demands what that nation was helplessly unable to
enforce from us against our will. The only criticisms made upon
the Administration for the terms of the Hay-Herran treaty were for
having granted too much to Colombia, not for failure to grant
enough. Neither in the Congress nor in the public press, at the
time that this treaty was formulated, was there complaint that it
did not in the fullest and amplest manner guarantee to Colombia
everything that she could by any color of title demand.
" Nor is the fact to be lost sight of that the rejected treaty, w bile
generously responding to the pecuniary demands of Colombia, in
other respects merely provided for the construction of the canal in
conformity with the express requirements of the act of the Congress
of June 28, 1902. By that act, as heretofore quoted, the President
was authorized to acquire from Colombia, for the purposes of the
canal, 'perpetual control' of a certain strip of land; and it was
expressly required that the ' control ' thus to be obtained should
include ' jurisdiction' to make police and sanitary regulations and to
establish such judicial tribunals as might be agreed on for their
enforcement. These were conditions precedent prescribed by the
Congress ; and for their fulfillment suitable stipulations were embod-
ied in the treaty. It has been stated in public prints that Colombia
objected to these' stipulations on the ground that they involved a
relinquishment of her 'sovereignty;' but in the light of what has
taken ])lace, this alleged objection must be considered as an after-
thought.
"In reality, the treaty, instead of requiring a cession of Colom})ia's
sovereignty over the canal strip, expressly acknowledged, confirmed,
and preserved her sovereignty over it. The treaty in this respect
simply proceeded on the lines on which all the negotiations leading
up to the present situation have been conducted. In those negotia-
tions the exercise by the ITnited States, subject to tlie paramount
rights of the local sovereign, of a substantial control over the canal
and the immediately adjacent territory, has been treated as a fun-
damental part of any arrangement that might be made. It has
formed an essential feature of all our plans, and its necessity is fully
recognized in the Ilay-Pauncefote treaty. The Congress, in j)ro-
§ 844.] EEPUBLIC OF PANAMA. 59
viding that such control should be secured, adopted no new principle,
but only incorporated in its legislation a condition the importance
and propriety of which were universally recognized. During all
the years of negotiation and discussion that preceded the conclusion
of the Hay-Herran treaty, Colombia never intimated that the
requirements by the United States of control over the canal strip
would render unattainable the construction of a canal by way of the
Isthmus of Panama; nor were we advised, during the months when
legislation of 1902 was pending before the Congress, that the terms
which it embodied would render negotiations. with Colombia imprac-
ticable. It is plain that no nation could construct and guarantee
the neutrality of the canal with a less degree of control than was
stipulated for in the Hay-Herran treaty: A refusal to grant such
degree of control was necessarily a refusal to make any practicable
treaty at all. Such refusal therefore squarely raised the question
whether Colombia was entitled to bar the transit of the world's
traffic across the Isthmus.
''That the canal itself was eagerly demanded by the people of the
locality through which it was to pass, and that the people of this
locality no less eagerly longed for its construction under American
control, are shown by the unanimity of action in the new Panama
Republic. Furthermore, Colombia, after having rejected the treaty
in spite of our protests and warnings when it was in her power to
accept it, has since shown the utmost eagerness to accept the same
treaty if only the status quo could be restored. One of the men
standing highest in the official circles of Colombia on November 6
addressed the American minister at Bogota, saying that if the Gov-
ernment of the United States would land troops to preserve Colom-
bian sovereignty and the transit, the Colombian Government would
'declare martial law; and, by virtue of vested constitutional
authority, when public order is disturbed, [would] approve by decree
the ratification of the canal treaty as signed; or, if the Government
of the United States prefers, [would] call extra session of the Con-
gress— with new and friendly members — next May to approve the
treaty."
"Having these facts in view, there is no shadow of question that
the Government of the United States proposed a treaty which was
not merely just, but generous to Colombia, which our people regarded
as erring, if at all, on the side of overgenerosity; which was hailed
with delight by the people of the immediate locality through which
the canal was to pass, who' were most concerned as to the new order
of things, and which the Colombian authorities now recognize as
being so good that they are willing to promise its unconditional rati-
fication if only we will desert those who have shown themselves our
friends and restore to those who have shown tluMuselves unfriendlv
60 INTEROCEANIC COMMUNICATIONS. [§ 344.
tho power to undo what they did. I pass by the question as to what
assurance we have tliat they would now keep their pledge and not
again refuse to ratify the treaty if they had the power; for, of course,
1 will not for one moment discuss the possibility of the United States
committing an act of such baseness as to abandon the new Republic
of Panama.
"Third. Finally, the Congress definitely settled where the canal
was to be built. It was provided that a treaty should be made for
building the canal across the Isthmus of Panama; and, if, after rea-
sonable time, it proved impossible to secure such treaty, that then we
should go to Nicaragua. The treaty has been made; for it needs no
argument to show that the intent of the Congress was to insure a
canal across Pp^nama, and that whether the republic granting the
title was called New Granada, Colombia, or Panama mattered not
one whit. As events turned out, the question of 'reasonable time'
did not enter into the matter at all. Although, as the months went
by, it became increasingly improbable that the Colombian Congress
would ratify the treaty or take steps which would be equivalent
thereto, yet all chance for such action on their part did not vanish
until the Congress closed at the end of October; and within three
days thereafter the revolution in Panama had broken out. Panama
became an independent state, and the control of the territory neces-
sary for building the canal then became obtainable. The condition
under which alone we could have gone to Nicaragua thereby became
impossible of fulfillment. If the pending treaty with Panama should
not be ratified by the Senate, this would not alter the fact that we
could not go to Nicaragua. The Congress has decided the route, and
there is no alternative under existing legislation.
"When in August it began to appear probable that the Colombian
Legislature would not ratify the treaty it became incumbent upon me
to consider well what the situation was and to be ready to advise the
Congress as to what were the various alternatives of action open to
us. There were several possibilities. One was that Colombia would
at the last moment see the unwisdom of her position. That there
might be nothing omitted. Secretary Hay, through the minister at
Bogota, repeatedly warned Colombia that grave consequences might
follow from her rejection of the treaty. Although it was a constantly
diminishing chance, yet the possibility of ratification did not wholly
pass away until the close of the session of the Colombian Congress.
"A second alternative was that by the close of the session on the
last day of October, without the ratification of the treaty by Colombia
and without any steps taken by Panama, the American Congress on
assembling early in Noveml)er would be confronted with a situation
in which there had been a failure to come to terms as to building the
canal along the Panama roul(\ and yet there had not been a lapse of
§ 344.] REPUBLIC OF PANAMA. 61
a reasonable time — using the word reasonable in any proper sense—
such as would justify the Administration in going to the Nicaragua
route. This situation seemed on the whole the most likely, and as a
matter of fact I had made the original draft of my message to the
Congress with a view to its existence.
"It was the opinion of eminent international jurists that in view of
the fact that the great design of our guaranty under the treaty of
1846 was to dedicate the Isthmus to the purposes of interoceanic
transit, and above all to secure the construction of an interoceanic
canal, Colombia could not under existing conditions refuse to enter
into a proper arrangement with the United States to that end with-
out violating the spirit and substantially repudiating the obligations
of a treaty the full benefits of which she had enjoyed for over fifty
years. My intention was to consult the Congress as to whether
under such circumstances it would not be proper to announce that
the canal was to be dug forthwith; that we would give the terms
that we had offered and no others; and that if such terms were not
agreed to we would enter into an arrangement with Panama direct,
or take what other steps were needful in order to begin the enterprise.
"A third possibility was that the people of the Isthmus, who had
formerly constituted an independent state, and who until recently
were united to Colombia only by a loose tie of federal relationship,
might take the protection of their own vital interests into their own
hands, reassert their former rights, declare their independence upon
just grounds, and establish a government competent and willing to
do its share in this great work for civilization. This third possibility
is what actually occurred. Everyone knew that it was a possibility,
but it was not until toward the end of October that it appeared to be
an imminent probability. Although the Administration, of course,
had special means of knowledge, no such means were necessary in
order to appreciate the possibility, and toward the end the likelihood,
of such a revolutionary outbreak and of its success. It was a matter
of common notoriety. Quotations from the daily papers could be
indefinitely multiplied to show this state of affairs; a very few will
suffice. From Costa Rica on August 31a special was sent to the
Washington Post, running as follows:
" San Josk, Costa Rica, August SI.
" Travelers from Panama report the Istlimus alive with fires of a new revohition. It is
inspired, it is believed, by men who, in Panama and Colon, have systematirally enfjendered
the pro-Ameriean feeling to secure the building of the Isthmian canal by the United States.
" The Indians have risen, and the late followers of Gen. Benjamin Herrera are nuis-
tering in the mountain villages preparatory to joining in an organized revolt, caused by
the rejection of the canal treaty.
" Himdreds of stacks of arms, confiscated by the Colombian Government at the close
of the late revolution, have reappeared from some mysterious source, and thousands of
rifles that look suspiciously like the Mausers the United States captured in Cuba are issuing
62 INTEROCEANIC COMMUNICATIONS. [§ 344.
to the gathering forces from reiitnil points of distribution. With the arms gties ammu-
nition, fresh from fartt)ries, showing the movement is not spasmodic, but is carefully
planned.
" Tlie (iovernment forces in Panama and Colon, numl)oring less than \,!tI0O men, are
rept)rted to be a little more than friendly to the revolutionary spirit. They have l)een ill
paid since the revolution closed and their only hope of prompt payment is another war.
" General I Inert es, conunander of tlu^ forces, wlio is ostensibly loyal to the Bogota
Government, is said to Ix' .secretly friendly to the proposed revolution. At least, all his
personal friends are ojM»n in denunciation of the Bogota Government and the failure of the
Colombian Congress to ratify the canal treaty.
" The coasensus of opinion gathered from late arrivals from the Isthmus is that the
revolution is coming, and that it will succeed.
"A special dispatch to the Washington Post, under date of New
York, September 1, runs as follows:
" B. G. Duque, editor and proprietor of the Panama Star and Herald, a resident of the
Isthmus during the past twenty-seven years, who arrived to-day in New York, declared that
if the canal treaty fell through a revolution would be likely to follow.
" ' There is averj' strong feeling in Panama,' said Mr. Duque, 'that Colombia, in nego-
tiating the sale of a canal concession in Panama, is looking for profits that might just as well
go to Panama herself.
" ' The Colombian Government only the other day suppressed a newspaper that dared
to speak of independence for Panama. A while ago there was a secret plan afoot to cut
loose from Colombia and seek the protection of the United States.'
"In the New York Herald of September 10 the following statement
appeared :
" Representatives of strong interests on the Isthmus of Panama who make their head-
quarters in this city are considering a plan of action to be undertaken in cooperation with
men of similar views in Panama and Colon to bring about a revolution and,fonn an inde-
pendent government in Panama opposed to that in Bogota.
" There is much indignation on the Isthmus on account of the failure of the canal
treaty, which is ascribed to the authorities at Bogotd. This opinion is believed to be shared
by a majority of the isthmians of all shades of political belief, and they think it is to their
best interest for a new republic to be formed on the Isthmus, which may negotiate di-
rectly with the United States a new treaty which will permit the digging of the Panama
Canal under favorable conditions.
"In the New York Times, under date of September 13, there
appeared from Bogota the following statement:
" A proposal made by Seflor Perez y Sotos to ask the Executive to appoint an anti-
secessionist governor in Panama has been approved by the Senate. Speakers in the
Senate said that Seflor Obaldia, who was recently appointed governor of Panama, and who
is favorable to a canal treaty, was a menace to the national integrity. Senator Marro-
quin protested against the action of the Senate.
" President Marroquin succeeded later in calming the Congressmen. It ap|K'ars that
he was able to give them satisfactory reasons for Governor Obaldla's appointment. He
appears to realize the imminent peril of the Isthmus of Panama declaring its independence.
" Seflor Deroux, representative for a Panama constituency, recently delivered a sensa-
tional speech in the House. Among other things he .said:
" ' In Panama the bishops, governoi-s, magistrates, military chiefs, and their subor-
dinates have been and are foreign to the department. It seems that the Government, with
§ 344.J EEPUBLIC OF PANAMA. 63
surprising tenacity, wishes to. 'exclude the Isthmus from all participation in public affairs.
As regards international dangers in the Isthmus, all I can say is that if these dangei-s exist
they are due to the conduct of the National Government, which is in the direction of reaction.
" ' If the Colombian Government will not take action with a view to preventing dis-
aster, the responsibility will rest with it alone.'
"In the New York Herald of October 26 it was reported that a
revokitionary expedition of about 70 men had actually landed on the
Isthmus. In the Washington Post of October 29 it was reported
from Panama that in view of the impending trouble on the Isthmus
the Bogota Government had gathered troops in sufficient numbers
to at once put down an attempt at secession. In the New York
Herald of October 30 it was announced from Panama that Bogota
was hurrying troops to the Isthmus to put down the projected revolt.
In the New York Herald of November 2 it was announced that in
Bogota the Congress had endorsed tlie energetic measures taken to
meet the situation on the Isthmus and that 6,000 men were about to
be sent thither.
"Quotations like the above could be multiplied indefinitely. Suf-
fice it to say that it was notorious that revolutionary trouble of a
serious nature was impending upon the Isthmus. But it was not neces-
sary to rely exclusively upon such general means of information. On
October 15 Commander Hubbard, of the Navy, notified the Navy
Departinent that, though things were quiet on the Isthmus, a revo-
lution had broken out in the State of Cauca. On October 16, at
the request of Lieutenant-General Young, I saw Capt. C. B. Hum-
phrey and Lieut. Grayson Mallet-Prevost Murphy, who had just
returned from a four months' tour through the northern portions of
Venezuela and Colombia. They stopped in Panama on their return
in the latter part of September. At the time they were sent down
there had been no thought of their going to Panama, and their visit
to the Isthmus was but an unpremeditated incident of their return
journey; nor had they been spoken to by anyone at Washington
regarding the ])ossibility of a revolt. Until they landed at Colon
they had no knowledge that a revolution was imj^ending, save what
they had gained from the newspapers. \Miat they saw in Panama
so impressed them that they reported thereon to Lieutenant-General
Young, according to his memorandum —
" that while on the Isthmus they l>ocame satisfied beyond question that, owing largely to
the dissatisfaction because of the failure of Colombia to ratify the llay-llerran treaty, a
revolutionary party was in course of organization, having for its object the separation of
the State of Panama from Colombia, tlie leader l)eing Dr. Riciiard Arango. a former gov-
ernor of Panama; that when they were oix the Isthnms, arms and amnnmilion were being
smuggled into the city of Colon in pianos boxes, merchandise crates, etc., tiie small arms
reoeivcd being principally the Gras French rifle, the Remington, and the Mausei-; thai
nearly every citizen in Panama had some sort of rifle or gun in his pos.se,ssion . wilii ammu-
nition therefor; that in the city of Panama there had been organized a fire brigade which
64 TNTEROCEANIC COMMUNICATIONS. [^344.
was really intended for a revolutionary military orj^anization ; that there were representa-
tives of the rpvoiulioiinrv orpmizatioii at all important points on the Isthmus; that in
Panama, Colon, and the other principal places of the Isthmus police forces had Ix'en orj^ah-
ized which were in reality revolutionary forces; that the people on the Isthnuis seemed to
be unanimous in their sentiment against the Bogotd Government, and their disgust over
the failure of that Government to ratify the treaty providing for the construction of the
canal, and that a revolution might 1m^ expected inunediately upon the adjournment of the
Colombian Congress without ratification of the treaty.
"Lieutenant-General Young regarded their report as of such
importance as to make it advisable that I should personally see
these officers. They told me what they had already reported to the
Lieutenant-General, adding that on the Isthmus the excitement was
seething, and that the Colombian troops were reported to be disaf-
fected. In response to a question of mine they informed me that it
was the general belief that the revolution might break out at any
moment, and if it did not happen before would doubtless take place
immediately after the closing of the Colombian Congress (at the end
of October) if the canal treaty were not ratified. They were certain
that the revolution would occur, and before leaving the Isthmus had
made their own reckoning as to the time, which they had set down
as being probably from three to four weeks after their leaving. The
reason they set this as the probable inside limit of time was that
they reckoned that it would be at least three or four weeks — say not
until October 20 — before a sufficient quantity of arms and muni-
tions would have been landed.
'' In view of all these facts I directed the Navy Department to issue
instructions such as would insure our having ships within easy reach
of the Isthmus in the event of need arising. Orders were given on
October 19 to the Boston to proceed to San Juan del Sur, Nicaragua;
to the Dixie to prepare to sail from League Island, and to the Atlanta
to proceed to Guantanamo. On October 30 the Nashville was ordered
to proceed to Colon. On November 2, when, the Colombian Congress
having adjourned, it was evident that the outbreak was imminent,
and when it was announced that both sides were making ready forces
whose meeting would mean bloodshed and disorder, the Colombian
troops having been embarked on vessels, the following instructions
were sent to the commanders of the Boston, Nashville, and Dixie:
" Maintain free and uninterrupted transit. If interniption is threatened by armed
force, occupy the line of railroad. Prevent landing of any armed force with hostile intent,
either government or insurgent, at any point within .W miles of Panama. Government
force reported approaching the Isthmus in vessels. Prevent their landing if, in your
judgment, the landing would precipitate a conflict.
"These orders were delivered in pursuance of the policy on which
our Government had repeatedly acted. This policy was exhibited
in the following orders, given under somewhat similar circumstances
last year, and the year before, and the year before that. The first
§ 344.] REPUBLIC OF PANAMA. 66
two telegrams are from the Department of State to the consul at
Panama :
" July 25, 1900.
" You are directed to protest against any act of hostility which may involve or imperil
the safe and peaceful transit of persons or property across the Isthmus of Panama. The
bombardment of Panama would have this effect, and the United States must insist upon
the neutrality of the Isthmus as guaranteed by the treaty.
" NOVEMBBR 20, 1901.
" Notify all parties molesting or interfering with free transit across the Isthmus that
such interference must cease and that the United States will prevent the interruption of
traffic upon the railroad. Consult with captain of the Iowa, who will be instructed to land
marines, if necessary, for the protection of the railroad, in accordance with the treaty rights
and obligations of the United States. Desirable to avoid bloodshed, if possible.
"The next three telegrams are from and to the Secretary of the
Navy:
" September 12, 1902.
" Ranger, Panama:
" United States guarantees perfect neutrality of Isthmus and that a free transit from
sea to sea be not interrupted or embarrassed. . . . Any transportation of troops
which might contravene these provisions of treaty should not be sanctioned by you nor
should use of road be permitted which might convert the line of transit into theater of
hostility.
" Moody.
" Colon, September 20, 1902.
" Secretary of TirE Navy, Washington:
" Everything is conceded. The United States guards and guarantees traffic and the
line of transit. To-day I permitted the exchange of Colombian troops from Panama to
Colon, about 1,000 men each way, the troops without arms in trains guarded by American
naval force in the same manner as other passengers; arms and ammunition in separate
train, guarded also by naval force in the same manner as other freight.
" McLean.
" Panama, October 3, 1902.
" Secretary of the Navy, Washington, D. C:
" Have sent this communication to the American consul at Panama:
" ' Inform governor while trains running under United States protection I must decline
transportation any combatants, ammunition, arms, which might cause interruption traffic
or convert line of transit into theater hostilities.'
" Casey.
"On November 3 Commander Hubbard responded to the above-
quoted telegram of November 2, 1903, saying that before the tele-
gram had been received 400 Colombian troops from Cartagena had
landed at Colon; that there had been no revolution on the Isthmus,
but that the situation was most critical if the revolutionary leaders
should act. On this same date the Associated Press in Washington
received a bulletin stating that a revolutionary outbreak had occurred.
Wlien tliis was brought to the attention of the Assistant Secretary
of State, Mr. Loomis, he prepared the following cablegram to the
consul-general at Panama and the consul at Colon :
' ' Uprising on Isthmus reported. Keep Department promptly and fully informed.
H. Doc. 551— vol 3 5
66 INTEROCEANIC COMMUNICATIONS. [§ 344.
"Before this telegram was sent, however, one was received from
Consul Malniros at Colon, running as follows:
' ' Revolution imminent. Government force on the Isthmus about 500 men. Their
official promised support revolution. Fire department, Panama, 441, are well organized
and favor revolution. Government vessel, Cartagena, with about 400 men, arrived early
to-day with now commander in chief, Tobar. Was not expected until November 10.
Tobar's arrival is not probable to stop revolution.
"This cablegram was received at 2.35 p. m., and at 3.40 p. m.
Mr. Loomis sent the telegram which he had already prepared to both
Panama and Colon. Apparently, however, the consul-general at
Panama had not received the information embodied in the Associ-
ated Press bulletin, upon which the Assistant Secretary of State
based his dispatch, for his answer was that there was no uprising,
although the situation was critical, this answer being received at 8.15
p. m. Immediately afterwards he sent another dispatch, which was
received at 9.50 p. m., saying that the uprising had occurred, and
had been successful, with no bloodshed. The Colombian gunboat
Bogota next day began to shell the city of Panama, with the result
of killing one Chinaman. The consul-general was du*ected to notify
her to stop firing. Meanwhile, on November 4, Commander Hub-
bard notified the Department that he had landed a force to protect
the lives and property of American citizens against the threats of
the Colombian soldiery.
"Before any step whatever had been taken by the United States
troops to restore order, the commander of the newly landed Colom-
bian troops had indulged in wanton and violent threats against
American citizens, which created serious apprehension. As Com-
mander Hubbard reported in his letter of November 5, this officer
and his troops practically began war against the United States, and
only the forbearance and coolness of our officers and men prevented
bloodshed. The letter of Commander Hubbard is of such interest
that it deserves quotation in full, and runs as follows:
" U. S. S. Nashville, Third Rate,
"Colon, TJ. S. Colomhia, November 5, 1903.
"Sir: Pending a complete report, of the occurrences of the last three days in Colon,
Coloml)ia, I most respectfully invite the Department's attention to those of the date of
Wednesday, November 4, which amounted to practically the making of war against the
United States by the officer in command of the Colombian troops in Colon. At 1 o'clock
p. m. on that date I wa.s summoned im shore by a preconcerted signal, and on landing met
the United States consul, vice-consul, and Colonel Shaler, the general superintendent of
the Panama Railroad. The consul informed me that he had received notice from the officer
commanding the Colombian troops, Colonel Torres, through the prefect of Colon, to the
effect that if the Colombian officere. Generals Tobal and Amaya, who had Ix^en seized in
Panama on the evening of tlio 3d of November by the Independents and held as prisoners,
were not released by 2 o'clock p. m. he, Torres, would open fire on the town of Colon and
kill every United States citizen in the place, and my advice and action were requested. I
advised thai/ all the United States citizens should take refuge in the shed of the Panama Rail-
§ 344.] REPUBLIC OP PANAMA; 67
road Company, a stone building susceptible of being put into good state for defens<!, and
that I would immediately land such body of men, with extra arms for arming the citizens,
as the complement of the ship would permit. This was agreed to and I immediately
returned on board, arriving at 1.15 p. in. The order for landing was immediately given,
and at 1.30 p. m. the boats left the ship with a party of 42 men under the command of Lieut.
Connnander H. M. Witzel, with Midshipman J. P. Jackson as second in command. Time
being pressing, I gave verbal orders to Mr. Witzel to take the building above referred to, to
put it into the best state of defense possible, and protect the lives of the citizens assembled
there — not firing unless fired upon. The women and children took refuge on the German
steamer Marcomania and Panama Raihoad steamer City of Washington, both ready to
haul out from do(;k if necessary. The Nashville I got inider way and patrolled with her
along the water front close in and ready to use either small arm or shrapnel fire. The
Colombians surrounded the building of the railroad company almost immediately after
we had taken possession, and for about one and a half hours their attitude was most
threatening, it being seemingly their purpose to provoke an attack. Happily our men
were cool and steady, and while the tension was very great no shot was fired. At about
3.15 p. m. Colonel Torres came into the building for an interview and expressed himself as
most friendly to Americans, claiming that the whole affair was a misapprehension and that
he would like to send the alcalde of Colon to Panama to see General Tobal and have him
direct the discontinuance of the show of force. A special ti'ain was furnished and safe con-
duct guaranteed. At about 5.30 p. m. Colonel Torres made the proposition of withdraw-
ing his troops to Monkey Hill if I would withdraw the Nashville's force and leave the town
in possession of the police until the return of the alcalde on the morning of the 5th. After
an interview with the United States consul and Colonel Shaler as to the probability of good
faith in the matter, I decided to accept the proposition and brought my men on board, the
disparity in numbers between my force and that of the Colombians, nearly ten to one, mak-
ing me desirous of avoiding a conflict so long as the object in view, the protection of Amer-
ican citizens, was not imperiled.
" 1 ani positive that the determined attitude of our men, their coolness and evident
intention of standing their ground, had a most salutary and decisive efl'ect on the immedi-
ate situation and was the initial step in the ultimate abandoning of Colon by these troops
and their return to Cartagena the following day. Lieutenant-Commander Witzel is entitled
to much praise for his admirable work in command on the spot.
' ' I feel that I can not sufficiently strongly represent to the Department the grossness of
this outrage and the insult to our dignity, even apart from the savagery of the threat.
" Very respectfully,
' ' John Hubbard,
' ' Commander, U. S. Navy, Commanding.
"The Secretary of the Navy,
"Navy Depaiiment, Washington, D. C.
"In his letter of November 8 Commander Hubbard sets forth the
facts more in detail:
" U. S. S. Nashville, Third Rate,
"Porto Bello, U. S. Colombia, Novembers, 1903.
" Sir: 1. I have the honor to make the following report of the occurrences which took
place at Colon and Panama in the interval between tiie arrival of the Nashville at Colon
on the evening of November 2, 1903, and evening of Noveml)er 5, 1903, when, by the
arrival of the U. S. S. Dixie, at Colon, I was relieved as senior officer by Commander F. H.
Delano, U. S. Navy.
"2. At the time of the arrival of the Nashville at Colon at 5.30 p. m. on November 2
everything on the Isthmus wa.s (juiet. There was talk of proclaiming the independence of
Panama, but no definite action had been taken, and there had been no disturbance of peace
and order. At daylight on the morning of November 3 it wtis found that a vessel which had
68 INTEROCEANIC COMMUNICATIONS. [§344.
como in during tho niglit was tlic C'olomUian {gunboat Cartagena, carrying between 400 and
."lOO troops. I had her boarded, and loariicd that tlu'so triKjps were for the garrison at
Panama. Inasmuch lus the Iiuicpcndent party had not acted and the Government of
Colombia was at tho time in undisputed control of the province of Panama, I did not feel,
in the aljsenco of any instmctions, tiiat I was justified in preventing the landing of these
troops, and at 8.;% o'clock they were disetnbarked. The commanding officers, Generals
Amaya and Tobal, with four otliers, iniinediately went over to Panama to make arrange-
ments for receiving and (juartering their troops, leaving the command in charge of an officer
whom 1 later learned to be Colonel Torres. The Department's massage addressed to the
care of the United States consul I received at 10.30 a. m. It was delivered to one of the
ship's boats while I was at the consul's, and not to the consul, as addressed. The message
was said to have been received at the cable office at 9.30 a. m. Inmiediately on decipher-
ing the message I went on shore to see what arrangements the railroad company had made
for the transportation of these troops to Panama, and learned that the company would not
transport them except on request of the governor of Panama, and that the prefect at Colon
and the officer left in command of tho troops had been so notified by the general superin-
tendent of the Panama Railroad Company. I remained at the company's office until it
was sure that no action on ray part would be needed to prevent the transportation of the
troops that afternoon, when I returned on board and cabled the Department the situation
of affairs. At about 5.30 p. m. I again went on shore, and received notice from the general
superintendent of the railroad that he had received the request for the transportation of
the troops and that they would leave on the 8 a. m. train on the following day. I imme-
diately went to see the general superintendent, and learned that it had just been announced
that a provisional government had been established at Panama ; that Generals Amaya and
Tobal, the governor of Panama, and four officers who had gone to Panama in the morning
had been seized andwere held as prisoners ; that they had an organized force of 1 ,500 troops,
and wished the Government troops in Colon to be sent over. This I declined to permit,
and verbally prohibited the general superintendent from giving transportation to the troops
of either party.
" It being then late in the evening, I sent early in the morning of November 4 written
notification to the genieral superintendent of the Panama Railroad, to the prefect of Colon,
and' to the officer left in command of the Colombian troops, later ascertained to be Colonel
Torres, that I had prohibited the transportation of troops in either direction, in order to
preserve the free and uninterrupted transit of the Isthmus. Copies of these letters are
hereto appended; also copy of my notification to the consul. Except to a few people,
nothing was known in Colon of the proceedings in Panama until the arrival of the train at
10.45 on the morning of the 4th. Some propositions were, I was later told, made to Colonel
Torres by the representatives of the new Government at Colon, with a view to inducing
him to reembark in the Cartagena and return to the port of Cartagena, and it was in answer
to this proposition that Colonel Torres made the threat and took the action reported in my
letter No. 96, of November 5, 1903. The Cartagena left the port just after the threat was
made, and I did not deem it expedient to attempt to detain her, as sucli action would cer-
tainly, in the then state of affairs, have precipitated a conflict on shore which I was not pre-
pared to meet. It is my understanding that she returned to Cartagena. After tlie with-
drawal of the Colombian troops on the evening of November 4, and the return of the
NaishviUe's force on board, as reported in my letter No. 96, there was no disturbance on
shore, and the night passed quietly. On the morning of the 5th I discovered that tlie com-
mander of the Colombian troops had not withdrawn so far from the town as he luxd agreed,
but was occupying buildings near the outskirts of the town. 1 immediately inquired into
the matter and learned that he had some trivial excuse for not carrying out his agreement,
and also that it was his intention to occupy Colon again on the arrival of the alcalde due at
10.45 a. m., unless General Tobal .sent word by tho alcalde that he. Colonel Torres, should
withdraw. That General Tobal had declined to give any instructions I wius cognizant of,
and the situation at once became quite as serious as on the day previous. I immediately
§ 344.] REPUBLIC OF PANAMA. -09
landed an armed force, reoccupied the same building; also landed two 1-pounders and
mounted them on platform cars behind protection of cotton bales, and then in company
with the United States consul had an interview with Colonel Torres, in the course of which
I informed him that I had relanded my men because he had not kept his agreement; that I
had no interest in the affairs of either party; that my attitude was strictly neutral; that the
troops of neither side should be transported; that my sole purpose in landing was to protect
the lives and property of American citizens if threatened, as they had been threatened, and
to maintain the free and uninterrupted transit of the Isthmus, and that purpose I should
maintain by force if necessary. I also strongly advised that in the interests of peace, and
to prevent the possibility of a conflict that could not but be regrettable, he should carry out
his agreement of the previous evening and withdraw to Monkey Hill.
" Colonel Torres' only reply was that it was unhealthy at Monkey Hill, a reiteration of
his love of Americans, and persistence in his intention to occupy Colon, should General Tobal
not give him directions to the contrary.
" On the return of the alcalde at about 11a. m. the Colombian troops marched into
Colon, but did not assume the threatening demeanor of the previous day. The American
women and children again went on board the Marcomania and City of Washington, and
through the British vice-consul I o(Tered protection to British subjects as directed in the
Department's cablegram. A copy of the British vice-consul's acknowledgement is hereto
appended. The Nashville I got under way as on the previous day and moved close in to
protect the water front. During the afternoon several propositions were made to Colonel
Torres by the representatives of the new Government, and he was finally persuaded by
them to embark on the Royal Mail steamer Orinoco with all his troops and return to Carta-
gena. The Orinoco left her dock witii tlie troops — 474 all told — at 7.35 p. m. The Dixie
arrived and anchored at 7.05 p. m., when I went on board and acquainted the commanding
officer with the situation A portion of the marine battalion was landed and the Nash-
ville's force withdrawn.
" 3. On the evening of November 4, Maj. William M. Black and Lieut. Mark Brooke, Corps
of Engineers, U. S. Army, came to Colon from Culebra and volunteered their services, which
were accepted, and they rendered very efficient help on the following day.
"4. I beg to assure the Department that I had no part whatever in the negotiations that
were carried on between Colonel Torres and the representatives of the provisional govern-
ment; that I landed an armed force only when the lives of American citizens were threat-
ened, and withdrew tliis force as soon as tlierc seemed to be no grounds for further appre-
hension of injury to American lives or property; that I relanded an armed force because of
the failure of Colonel Torres to carry out his agreement to withdraw and announced inten-
tion of returning, and that my attitude throughout was strictly neutral as between the two
parties, my only purpose being to protect the lives and property of American citizens and
to preserve the free and uninternipted transit of tiie Isthmus.
" Very respectfully, John Hubbard,
" Commander, U. S. Navy, Commanding.
" The Secretary of the Navy,
" Bureau of Navigation, Navy Department, Washington, D. C.
"This plain official account of the occurrences of November 4,
shows that, instead of there having been too much prevision by the
American Government for the maintenance of order and the protec-
tion of life and property on the Isthmus, the orders for the move-
ment of the American war ships had been too long delayed; so long,
in fact, that there were but 42 marines and sailors available to land
and protect the lives of American men and women. It was only
the coolness and gallantry with which this little band of men wearing
the American uniform faced ten times their number of armed foes,
70 INTEROCEANIC COMMUNICATIONS. [§ 344.
bent on carrying out the atrocious threat of the Colombian com-
mander, that prevented a murderous catastrophe. At Panama,
when the revolution broke out, there was no American man-of-war
and no American troops or sailors. At Colon, Commander Hubbard
acted with entire impartiality toward both sides, preventing any
movement, whether by the Colombians or the Panamans, which
would tend to produce bloodshed. On November 9 he prevented a
body of the revolutionists from landing at Colon. Throughout he
behaved in the most creditable manner. In the New York Even-
ing Post, under date of Panama, December 8, there is an article
from a special correspondent, which sets forth in detail the unbear-
able oppression of the Colombian government in Panama. In this
article is an interesting interview with a native Panaman, which
runs in part as follows:
"... We looked upon the building of the canal as a matter of life or death to us.
We wanted that because it meant, with the United States in control of it, peace and pros-
perity for us. . President Marroquin appointed an Isthmian to be governor of Panama, and
we looked upon that as of happy augury. Soon we heard that the canal treaty was not
likely to be approved at Bogotd.; next we heard that our Isthmian governor, Obaldia, who
had scarcely assumed power, was to be superseded by a soldier from Bogota. . . .
" Notwithstanding all that Colombia has drained us of in the way of revenues, she did
not bridge for us a single river, nor make a single roadway, nor erect a single college where
our children could be educated, nor do anything at all to advance our industries. . . .
Well, when the new generals came we seized them, arrested them, and the town of Panama
was in joy. Not a protest was made, except the shots fired from the Colombian gunboat
Bogota, which killed one Chinese lying in his bed. We were willing to encounter the
Colombian troops at Colon and fight it out, but the commander of the United States cniiser
Nashville forbade Superintendent Shaler to allow the railroad to transport troops for either
party. That is our story.
"I call especial attention to the concluding portion of this inter-
view which states the willingness of the Panama people to fight the
Colombian troops and the refusal of Commander Hubbard to permit
them to use the railroad and therefore to get into a position where
the fight could take place. It thus clearly appears that the fact that
there was no bloodshed on the Isthmus was directly due — and only
due — to the prompt and firm enforcement by the United States of
its traditional policy. During the past forty years revolutions and
attempts at revolutions have succeeded one another with monoto-
nous regularity on the Isthmus, and again and again United States
sailors and marines have been landed as they were landed in this
instance and under similar instructions to protect the transit. One
of these revolutions resulted in three years of warfare; and the
aggregate of bloodshed and misery caused by them has been incal-
culable.
"The fact that in this last revolution not a life was lost, save that
of the man killed by the shells of the Colombian gunboat, and no
property destroyed, was due to the action which I have described.
§ 344.] EEPUBLIC OF PANAMA. 71
We, in effect, policed the Isthmus in the interest of its inhabitants
and of our own national needs, and for the good of the entire civil-
ized world. Failure to act as the Administration acted would have
meant great waste of life, great suffering, great destruction of prop-
erty; all of which was avoided by the firmness and prudence with
which Commander Hubbard carried out his orders and prevented
either party from attacking the other. Our action was for the
peace both of Colombia and of Panama. It is earnestly to be hoped
that there will be no unwise conduct on our part which may encour-
age Colombia to embark on a war which can not result in her regain-
ing control of the Isthmus, but which may cause much bloodshed
and suffering.
" I hesitate to refer to the injurious insinuations which have been
made of complicity by this Government in the revolutionary move-
ment in Panama. They are as destitute of foundation as of propri-
ety. The only excuse for my mentioning them is the fear lest
unthinking persons might mistake for acquiescence the sdence of
mere self-respect. I think proper to say, therefore, that no one con-
nected with this Government had any part in preparing, inciting, or
encouraging the late revolution on the Isthmus of Panama, and that
save from the reports of our military and naval officers, given above,
no one connected with this Government had any previous knowl-
edge of the revolution except such as was accessible to any person of
ordinary intelligence who read the newspapers and kept up a cur-
rent acquaintance with public affairs.
"By the unanimous action of its people, without the firing of a
shot — with a unanimity hardly before recorded in any similar case —
the people of Panama declared themselves an independent republic.
Their recognition by this Government was based upon a state of
facts in no way dependent for its justification upon our action in
ordinary cases. I have not denied, nor do I wish to deny, either the
validity or the propriety of the general rule that a new state should
not be recognized as independent till it has shown its ability to main-
tain its independence. This rule is derived from the principle of non-
intervention, and as a corollary of that principle has generally been
observed by the United States. But, like the principle from wliich
it is deduced, the rule is subject to exceptions; and there are in my
o[)inion clear and imperative reasons why a departure from it was
justified and even required in the present instance. These reasons
embrace, first, our treaty rights; second, our national interests and
safety; and, third, the interests of collective civilization.
"I have already adverted to the treaty of 1S46, by the thirty-fifth
article of which the United States secured the right to a free and open
transit across the Isthmus of Panama, and to that end agreed to
guarantee to New Granada her rights of sovereignty and property
72 INTEROCEANIC COMMUNICATIONS. [§ 344.
over that territory. This article is sometimes discussed as if the
latter guarantee constituted its sole object and bound the United
States to protect the sovereignty of New Granada against domestic
revolution. Nothing, however, could be more erroneous than this
supposition. That our wise and patriotic ancestors, with all their
dread of entangling alliances, would have entered into a treaty with
New Granada solely or even primarily for the purpose of enabling
that remnant of the original Republic of Colombia, then resolved
into the States of New Granada, Venezuela, and Ecuador, to continue
from Bogota to rule over the Isthmus of Panama, is a conception
that would in itself be incredible, even if the contrary did not clearly
appear. It is true that since the treaty was made the United States
has again and again been obliged forcibly to intervene for the pres-
ervation of order and the maintenance of an open transit, and that
this intervention has usually operated to the advantage of the titular
Government of Colombia, but it is equally true that the United States
in intervening, with or without Colombia's consent, for the protec-
tion of the transit, has disclaimed any duty to defend the Colonibian
Government against domestic insurrection or against the erection of
an independent government on the Isthmus of Panama. The
attacks against which the United States engaged to protect New
Granadian sovereignty were those of foreign powers; but this
engagement was only a means to the accomplishment of a yet more
important end. The great design of the article was to assure the
dedication of the Isthmus to the purposes of free and unobstructed
interoceanic transit, the consummation of which would be found in
an interoceanic canal. To the accomplishment of this object the
Government of the United States had for years directed its diplo-
macy. It occupied a place in the instructions to our delegates to
the Panama Congress during the Administration of John Quincy
Adams. It formed the subject of a resolution of the Senate in 1835,
and of the House of Representatives in 1839. In 1846 its impor-
tance had become still more apparent by reason of the Mexican war.
If the treaty of 1846 did not in terms bind New Granada to grant
reasonable concessions for the construction of means of interoceanic
communication, it was only because it was not imagined that such
concessions w^ould ever be withheld. As it was expressly agreed
that the United States, in consideration of its onerous guarantee of
New Granadian sovereignty, should possess the right of free and open
transit on any modes of communication that might be constructed,
the obvious intent of the treaty rendered it unnecessary, if not super-
fluous, in terms to stipulate that permission for the construction of
such modes of communication should not be denied.
' 'Long before the conclusion of the Hay-Herran treaty the course
of events had shown that a canal to connect the Atlantic and Pacific
§344.] REPUBLIC OF PANAMA. 73
oceans must be built by the United States or not at all. Experi-
ence had demonstrated that private enterprise was utterl}^ inade-
quate for the purpose; and a fixed policy, declared by the United
States on many memorable occasions, and supported by the prac-
tically unanimous voice of American opinion, had rendered it mor-
ally impossible that the work should be undertaken by European
powers, either singly or in combination. Such were the universally
recognized conditions on which the legislation of the Congress was
based, and on which the late negotiations with Colombia were begun
and concluded. Nevertheless, when the well-considered agree-
ment was rejected by Colombia and the revolution on the Isthmus
ensued, one of Colombia's first acts was to invoke the intervention
of the United States; nor does her invitation appear to have been con-
fined to this Government alone. By a telegram from Mr. Arthur M.
Beaupr6, our minister at Bogota, of the 7th of November last, we
were informed that General Reyes would soon leave Parrama in-
vested with full powers; that he had telegraphed the President of
Mexico to ask the Government of the United States and all countries
represented at the Pan-American Conference 'to aid Colombia to
preserve her integrity, ' and that he had requested that the Govern-
ment of the United States should meanwhile 'preserve the neutrality
and transit of the Isthmus' and should 'not recognize the new
government. ' In another telegram from Mr. Beaupre, which was
sent later in the day, this Government was asked whether it would
take action 'to maintain Colombian right and sovereignty on the
Isthmus in accordance with article 35 [of] the treaty of 1846' in
case the Colombian Government should be 'entirely unable to sup-
press the secession movement there. ' Here was a direct solicita-
tion to the United States to intervene for the purpose of suppressing,
contrary to the treaty of 1846 as this Government has uniformly
construed it, a new revolt against Colombia's authority brought
about by her own refusal to permit the fulfillment of the great
design for which that treaty was made. It was under these circum-
stances that the United States, instead of using its forces to destroy
those who sought to make the engagements of the treaty a reality,
recognized them as the proper custodians of the sovereignty of the
Isthmus.
"This recognition was, in the second place, further justified by
the highest considerations of our national interests and safety. In
all the range of our international relations, I do not hesitate to affirm
that there is nothing of greater or more pressing importance than
the construction of an interoceanic canal. Long acknowledged to
be essential to our commercial development, it has become, as the
result of the recent extension of our territorial dominion, more than
ever essential to our national self-defense. In transmitting to the
74 INTEROCEANIC COMMUNICATIONS. [§ 344.
Senato the treaty of 1846, President Polk pointed out as the prin-
cipal reason for its ratification that the passage of the Isthmus, which
it was designed to secure, 'would relieve us from a long and danger-
ous navigation of more than 9,000 miles around Cape Horn, and ren-
der our communication with our own possessions on the northwest
coast of America comparatively easy and speedy.' The events of
the past five years have given to this consideration an importance
immeasurably greater than it possessed in 1846. In the light of our
present situation, the establishment of easy and speedy communi-
cation by sea between the Atlantic and the Pacific presents itself
not simply as something to be desired, but as an object to be posi-
tively and promptly attained. Reasons of convenience have been
superseded by reasons of vital necessity, which do not admit of indefi-
nite delays.
"To such delays the rejection by Colombia of the Hay-Herran
treaty directly exposed us. As proof of this fact I need only refer
to the programme outlined in the report of the majority of the Panama
canal committee, read in the Colombian Senate on the 14th of Octo-
ber last. In this report, which recommended that the discussion of
a law to authorize the Government to enter upon new negotiations
should be indefinitely postponed, it is proposed that the considera-
tion of the subject should be deferred till October 31, 1904, when
the next Colombian Congress should have met in ordinary session.
By that time, as the report goes on to say, the extension of time
granted to the New Panama Canal Company by treaty in 1893
would have expired, and the new Congress would be in a position to
take up the question whether the company had not, in spite of fur-
ther extensions that had been granted by legislative acts, forfeited
all its property and rights. 'When that time arrives,' the report
significantly declares, 'the Republic, without any impediment, wUl
be able to contract, and will be in more clear, more definite, and
more advantageous possession, both legally and materially.' The
naked meaning of this report is that Colombia proposed to wait
until, by the enforcement of a forfeiture repugnant to the ideas of
justice wliich obtain in every civilized nation, the property and
rights of the New Panama Canal Company could be confiscated.
"Such is the scheme to wliich it was proposed that the United
States should be invited to become a party. The construction of
the canal was to be relegated to the indefinite future, while Colom-
bia was, by reason of her own delay, to be placed iii the 'more
advantageous' position of claiming not merely the compensation
to be paid })y the United States for the privilege of completing the
canal, but also the forty millions authorized by the act of 1902 to
be paid for the property of the New Panama Canal Company. That
the attempt to carry out this scheme would have brought Colombia
§344.] REPUBLIC OF PANAMA. 75
into conflict with the Government of France can not be doubted;
nor could the United States have counted upon immunity from the
consequences of the attempt, even apart from the indefinite delays
to which the construction of the canal was to be subjected. On the
first appearance of danger to Colombia, tliis Government would
have been summoned to interpose, in order to give effect to the
guarantees of the treaty of 1846; and all this in support of a plan
which, while characterized in its first stage by the w^anton disregard
of our own highest interests, was fitly to end in further injury to
the citizens of a friendly nation, whose enormous losses in their gen-
erous efforts to pierce the Isthmus have become a matter of history.
"In the third place, I confidently maintain that the recognition
of the Republic of Panama was an act justified by the interests of
collective civilization. If ever a Government could be said to have
received a mandate from civilization to effect an object the accom-
plishment of which was demanded in the interest of mankind, the
United States holds that position with regard to the interoceanic
canal. Since our purpose to build the canal was definitely announced,
there have come from all quarters assurances of approval and en-
couragement, in which even Colombia herself at one time partici-
pated ; and to general assurances were added specific acts and decla-
rations. In order that no obstacle might stand in our way. Great
Britain renounced important rights under the Clayton-Bulwer treaty
and agreed to its abrogation, receiving in return nothing but our
honorable pledge to build the canal and protect it as an open high-
way. It was in view of this pledge, and of the proposed enactment
by the Congress of the United States of legislation to give it imme-
diate effect, that the second Pan-American Conference, at the City
of Mexico, on January 22, 1902, adopted the following resolution:
" The Republics assembled at the International Conference of Mexico applaud the
purpose of the United States Government to construct an interoceanic canal, and acknowl-
edge that this work will not only be worthy of the greatness of the American people, but
also in the highest sense a work of civilization, and to the greatest degree beneficial to the
developtnent of commerce between the American States and the other countries of the
world.
"Among those who signed this resolution on behalf of their respec-
tive governments was General Reyes, the delegate of Colombia. Lit-
tle could it have been foreseen that two years later the Colombian
Government, led astray by false allurements of selfish advantage, and
forgetful alike of its international obligations and of the duties and
responsibilities of sovereignty, would thwart the efforts of the United
States to enter upon and complete a work which the nations of Amer-
ica, reechoing the sentiment of the nations of Europe, liad pro-
nounced to be not only ' worthy of the greatness of the American
people,' but also 'in the highest sense a work of civilization.'
76 INTEROCEANIC COMMUNICATIONS. [§ 344.
That our jwsition as the iiiandataiy of civilization lias been by ro
means misconceived is shown by the pronii)titude with which the
powers have, one after another, follow^ed our lead in recognizing
Panama as an independent State. Our action in recognizing the rew
Republic has been followed by like recognition on the part of France,
Germany, Denmark, Russia, Sweden and Norway, Nicaragua, Peru,
Cliina, Cuba, Great Britain, Italy, Costa Rica, Japan, and Austria-
Hungary.
"In view of the manifold considerations of treaty right and obliga-
tion, of national interest and safety, and of collective civilization,
by which our Government was constrained to act, I am at a loss to
comprehend the attitude of those who can discern in the recognition
of the Republic of Panama only a general approval of the principle
of 'revolution' by which a given government is overturned or one
portion of a country separated from another. Only the amplest justi-
fication can warrant a revolutionary movement of either kind. But
there is no fixed rule which can be applied to all such movements.
Each case must be judged on its own merits. There have been many
revolutionary movements, many movements for the dismemberment
of countries, which were evil, tried by any standard. But in my
opinion no disenterested and fair-minded observer acquainted with
the circumstances can fail to feel that Panama had the amplest justi-
fication for separation from Colombia under the conditions existing,
and, moreover, that its action w as in the highest degree beneficial to
the interests of the entire civilized world by securing the immediate
opportunity for the building of the interoceanic canal. It would be
well for those who are pessimistic as to our action in peacefully recog-
nizing the Republic of Panama, while we lawfully protected the
transit from invasion and disturbance, to recall what has been done
in Cuba, where we iijtervened even by force on general grounds of
national interest and duty. When we interfered it was freely proph-
esied that we intended to keep Cuba and administer it for our own
interests. The result has demonstrated in singularly conclusive fash-
ion the falsity of these prophesies. Cuba is now an independent
Republic. We governed it in its own interests for a few ye^rs, till it
was able to stand alone, and then started it upon its career of self-
government and independence, granting it all necessary aid. We
have received from Cuba a grant of two naval stations, so situated
that they in no possible way menace the liberty of the island, and yet
serve as important defenses for the Cuban people, as well as for our
own people, against possible foreign attack. The people of Cuba
have been immeasurably benefited by our interference in their be-
half, and our ow^n gain has been great. So will it be w^ith Panama.
The people of the Isthmus, and as I firmly believe of the adjacent
parts of Central and South America, wiU be greatly benefited by the
§ 344.] REPUBLIC OF PANAMA. 77
building of the canal and the guarantee of peace and order along its
line ; and hand in hand with the benefit to them will go the benefit to
us and to mankind. By our prompt and decisive action, not only
have our interests and those of the world at large been conserved, but
we have forestalled complications which were likely to be fruitful in
loss to ourselves, and in bloodshed and suffering to the people of
the Isthmus.
"Instead of using our forces, as we were invited by Colombia to
do, for the twofold purpose of defeating our own rights and interests
and the interests of the civilized world, and of compelling the sub-
mission of the people of the Isthmus to those whom they regarded as
oppressors, we shall, as in duty bound, keep the transit open and pre-
vent its invasion. Meanwhile, the only question now before us is
that of the ratification of the treaty. For it is to be remembered that
a failure to ratify the treaty will not undo what has been done, will
not restore Panama to Colombia, and will not alter our obligation to
keep the transit open across the Isthmus and to prevent any outside
power from menacing this transit.
" It seems to have been assumed in certain quarters that the propo-
sition that the obligations of article 35 of the treaty of 1846 are to
be considered as adhering to and following the sovereignt}^ of the
Isthmus, so long as that sovereignty is not absorbed by the United
States, rests upon some novel theory. No assumption could be fur-
ther from the fact. It is by no means true that a state in declaring
its independence rids itself of all the treaty obligations entered into
by the parent government. It is a mere coincidence that this ques-
tion was once raised in a case involving the obligations of Colombia
as an independent state under a treaty which Spain had made with
the United States many years before Spanish- American independ-
ence. In that case Mr. John Quincy Adams, Secretary of State, in
an instruction to Mr. Anderson, our minister to Colombia, of May 27,
1823, said:
"By a treaty between the United States and Spain coneluded at a time when Colombia
was a part of the Spanish dominions . . . the principle that free ships make free goods
was expressly recognized and established. It is asserted that by her declaration of inde-
pendence Colombia has been entirely released from all the obligations by which, as a part
of the Spanish nation, she was bound to other nations. This principle is not tenable. To
all the engagements of Spain with other nations, affecting their rights and interests, Colom-
bia, so far as she was affected by them, remains bound in honor and in justice. The stipu-
lation now referred to is of that character.
"The principle thus asserted by Mr. Adams was afterwards sus-
tained by an international commission in respect to the precise stipu-
lation to which he referred; and a similar position was taken by the
United States with regard to the binding obligation upon the inde-
pendent state of Texas of commercial stipulations embodied in prior
treaties between the United States and Mexico when Texas formed
78 INTEROCEANIC COMMUNICATIONS. [§ 344.
a part of the latter country. But in the present case it is unnecessaiy
to go so far. Even if it be admitted that prior treaties of a poUtical
and commercial complexion generally do not bind a new state formed
by separation, it is undeniable that stipulations having a local appli-
cation to the territory embraced in the new state continue in force
and are binding upon the new sovereign. Thus it is on all hands
conceded that treaties relating to boundaries and to rights of navi-
gation continue in force without regard to changes in government or
in sovereignty. This principle obviously applies to that part of the
treaty of 1846 which relates to the Isthmus of Panama.
"In conclusion let me repeat that the question actually before this
Government is not that of the recognition of Panama as an independ-
ent republic. That is already an accomplished fact. The question,
and the only question, is whether or not we shall build an Isthmian
canal.
" I transmit herewith copies of the latest notes from the minister of
the Republic of Panama to this Government, and of certain notes
which have passed between the special envoy of the Republic of
Colombia and this Government.
President Roosevelt, special message to Congress, Jan. 4, 1904, For. Rel. 1903
260-278.
For the constitution of the Republic of Panama, see For. Rel. 1904, 562.
"The Government and people of Colombia consider themselves
Hay-Reyes Cor- aggrieved by that of the United States in that they
respo n d e nc e ; are convinced that the course followed by its adminis-
Note^olf Dec!^23 tration, in relation to the events that have developed
1903. and recently been accomplished at Panama, have
worked deep injury to their interests.
"If the matter were one of little importance, even though right
were wholly on its side, my Government would not hesitate in yield-
ing some of its advantages out of regard for the friendly relations
which have happily existed without interruption between the two
countries. But as the facts that have taken place affect not only
valuable and valued interests, but also the independence and sover-
eignty of Colombia, my Government deems it its duty to remind
that of the United States of the stipulation contained in section 5 of
article 35 of the treaty of 1846, in force between the two countries,
which reads word for word as follows:
"If, unfortunately, any of the articles contained in this treaty .sliould be violated or
infringed in any way wliatever, it is expressly stipulated that neither of the two contract-
ing parties shall ordain or authorize any acts of reprisal, nor siuiU declare war against the
other in complaints of injuries or damages, until the said party considering it.self offended
shall have laid before the other a statement of such injuries or damages, verified by compe-
tent proofs, demanding justice and satisfaction, and the same shall have been denied, in
violation of the laws and of international rigiit.
§ 344.] REPUBLIC OF PANAMA. 79
"On formulating the statement of 'injuries and damages/ referred
to in the quoted abstract, there is nothing as natural or just as to
recall to mind that in the treaty concluded on the 2 2d of January of
this year between your excellency and the charge d'affaires of Colom-
bia, Senor Doctor Tomas Herran, there appears the following
stipulation :
"The convention when signed by the contracting parties shall be ratified in conformity
with the laws of the respective countries, etc.
"This condition, which rests at once on a correct conception of
the doctrine accepted in such matters by nearly all the constitu-
tional countries in the world, could not be foregone by Mr. Herran,
since under our constitution and laws it is for the Congress to approve
or disapprove the treaties signed by the Government, so that the
said treaties are not valid unless the requirement has been observed,
and as it likewise happens that under the law of nations covenants
entered into with any authority that may not be competent are null,
it is evident that no Colombian representative in the absence of a
preexisting law conferring such authority could have signed the said
convention without the above-quoted reservation. Furthermore,
this formality was at the outset admitted by the American Govern-
ment in the course of the negotiations that preceded the Hay-Her-
ran convention, as shown in articles 25, 26, and 28 of the 'Draft of
convention' submitted by the American Administration and dated
November 28, 1902. Article 25 says, textually, that the convention
will be exchanged 'after approval by the legislative bodies of both
countries.'
"The Hay-Herran convention did not take in Washington a course
different from that it took at Bogota. The parliamentary debate
that took place in the Senate was so full and earnest that it was not
approved until the following extraordinary sessions. And if it had
been rejected the disapproval would have involved no grievance for
Colombia, for if the mere entering upon negotiations for a conven-
tion implied the obligatory approval of the legislative body it would
be superfluous to submit it to its decision. Among the precedents
of international usage that could be mentioned in this respect there
may be cited the case that occurred between the same United States of
America and Her Britannic Majesty, when, after the signing of the
treaty intended to abrogate the convention known as the Clayton-
Bulwer treaty, England, as I understand it, declined to accept the
amendment introduced by the Senate, and her refusal delayed for
some time the approval and ratification of the treaty.
" It follows that the Congress of Colombia, which is vested, accord-
ing to our laws, with the faculty or power to approve or disapprove
the treaties concluded by the Government, exercised a j)orfect right
when it disapproved the Hay-Herran f onv«^ntion. This course did
80 INTEROCEANIC COMMUNICATIONS. [§344.
not disqualify the Government for the conclusion of another treaty
with the Government of your excellency; and it indeed resolved to
make a proposition to that effect, and Mr. Herran, whom our min-
ister for foreign affairs intrusted with that duty by cable, had the
honor of bringing this purpose to your excellency's knowledge.
Neither did that course imply any slight toward the Government of
the United States, and, on the contrary, the Senate, observant of
the existing friendly relations, relied on the sentiments of American
fraternity, by which it is animated, for the introduction in the new
agreement that was to be made of stipulations more consonant with
the notion of sovereignty entertained by the people of Colombia.
"It is proper to observe that under our constitution the Congress
is the principal guardian, defender, and interpreter of our laws.
And it can not be denied by any one, I take it) that the Hay-Herran
convention provides for the execution of public works on a vast
scale and for the occupancy in perpetuity of a portion of the terri-
tory of Colombia, the occupant being not a juridical person whose acts
were to be governed by the civil law and the Colombian code, but
rather a sovereign political entity, all of which would have given
occasion for frequent conflicts, since there would have been a coex-
istence in Panama of two public powers, the one national, the other
foreign.
"Hence the earnest efforts evinced by the Senate in ascertaining
whether the American Government would agree to accept certain
amendments tending especially to avoid as far as practicable any
restriction in the treaty of the jurisdiction of the nation within its
own territory. There is abundant evidence of the efforts of the
Senate in that direction, and I firmly believe that it would have
approved the convention with amendments that would probably
have been acceptable to the United States had not the American
minister at Bogota repeatedly declared in the most positive manner
that his Government would reject any amendment that might be
offered.
" In a note dated April 24 last he made the following statement to
the minister of foreign relations:
" Witli reference to the interview I liad witli your excellency at which were disciis.sed the
negotiations for the annulment of the present concessions of the Panama Canal and railroad
companies and other matters I have the honor to inform your excellency that I have
received instructions from my Government in that respect.
** 1 am directed to inform your exceHency, if the point should be raised, that everything
relative to this matter is included in the convention recently signed between Colombia and
the United States on the 22d of January last, and that, furthermore, any modiflcatiou
would be violative of the Sjjooner Act, and therefore inadmissible.
"The memorandum handed by the same minister to the minister
of foreign relations on the 13th of June of this year reads as follows:
§ 344.] REPUBLIC OF PANAMA. 81
" I have received instructions from my Government by cable in the sense that the Gov-
ernment of Colombia to all appearances does not appreciate the gravity of the situation.
The Panama Canal negotiations were initiated by Colombia and were earnestly solicited of
my Government for several years. The propositions presented by Colombia with slight
alterations were finally accepted by us. By virtue of tliis agreement our Congress recon-
sidered its previous decision and decided in favor of the Panama route. If Colombia now
rejects the treaty or unduly delays its ratification the friendly relations between the two
countries would be so seriously compromised that our Congress might next winter take
steps that every friend of Colombia would regret with sorrow.
"In his note of the 5th of August of this year he says this, among
other things:
" It seems to me that the commission (referring to the Senate conmiission) has not be«n
sufficiently informed jf the contents of my notes of April 24 and June 10, [sic] 1903, or that
it has not given them the importance they merit, as being the final expression of the opinion
or intentions of my Government. They clearly show that the amendment the commission
proposes to introduce in article 1 is, by itself, equivalent to an absolute rejection of the
treaty. I deem it my duty to repeat the opinion I already expressed to your excellency
that my Government will not consider or discuss such an amendment in any way. There
is another important amendment that the commission believes should be introduced in
article 3, consisting in the suppression of the tribunals therein dealt with. I consider it my
duty again to state my opinion that this will also in no wise be accepted by my Government.
''And further, in the same note, he adds:
" I avail myself of this opportunity respectfully to repeat that which I already stated to
your excellency, that if Colombia tnily desires to maintain the friendly relations that at
present exist between two countries, and at the same time secure for hereelf the extraordi-
nary advantages that are to be produced for her by the construction of the canal in her ter-
ritory, in case of its being backed by so intimate an alliance of national interests as that
which would supervene with the United States, the present treaty will liave to be ratified
exactly in its present form without amendment whatsoever. I say this because I am pro-
foundly convinced that my Government will not in any case accept amendments.
"The Congress being unable to accept in its actual wording at least
one of the stipulations contained in the treaty, because inhibited
from doing so by the constitution, no one will wonder that under the
pressure of threats so serious and irritating and in presence of a
formal notification from the party which had authority to serve it
that no amendment would be accepted, preference was given to dis-
approval.
" The integrity of any nation [said Mr. William 11. Seward] is lost, and its fate becomes
doubtful, whenever strange hands, and instruments unknown to the constitution, are
employed to perform the proper functions of the people, established by the organic law of
the state.a
"Before dismissing this point, it is proper to observe, in accord-
ance with article 4 of the Spooner Act:
" Sec. 4. That should the President be unable to obtain for the United States a satisfac-
tory title to the property of the New Panama Canal Company and the control of the noces-
oSee p. 109, F. R., 1861, Mr. Seward to Mr. Adams.— Translator.
H. Doc. 551— vol a ()
82 INTEROCEANIO COMMUNICATIONS. [§ 344.
sary territory of the Republic of Colombia and the rights mentioned in sections 1 and 2 of
this act, within a reasonable time and upon reasonable i«nns, then the President, having
first obtained for the United States perpetual control by treaty of the necessary territory
from Costa RicA and Nicaragua, upon terms which he may consider reasonable, for the con-
struction, perpetual maintenance, operation, and protection of a canal connecting the
Caribbean Sea with the Pacific Ocean by what is commonly known as the Nicaragua route,
shall, through the said Isthmian Canal Commission, cause to be excavated and constructed
a ship canal and waterway from a point on the shore of the Caribbean Sea, near Greytown,
by way of Lake Nicaragua, to a point near Brito, on the Pacific Ocean.
"This act, on account of its having served as the basis of the
treaty draft on the part of the United States, as stated in the pre-
amble, which adds that it is accompanied by a copy of the act, had
for Colombia exceptional importance. For it is so imperative that
it seems to leave no faculty other than that of selecting one of the
two routes, Panama or Nicaragua, and therefore it was to be pre-
sumed that the action of the American Government could not over-
step the limits therein fixed. Whence it follows that the sole evil
that could befall Colombia if her Congress should disapprove the
treaty was that the route eventually selected would be that of Nica-
ragua. It may be that we fell into error when we entertained that
belief, but it was sincere, and we were led into it by the profound
respect with which the American laws inspire us.
"All governments being, as is well known, bound to respect the
rights born of the independence and sovereignty of nations, the pre-
mature recognition by the United States of the province of Panama,
rising in arms to detach itself from the country of which it is a part,
while it is a matter of public knowledge that the mother country
commands sufficient forces to subdue it, constitutes, according to
the most ancient and modern authorities on international law, not
only a grave offense to Colombia, but also a formal attack upon her
wealth.
" For, as the territory forms the most important part of the national
wealth, its dismemberment impairs the revenues applied to the dis-
charge of corporate obligations, among which are foreign debts and
those enterprises entailed on the insurgent province, from which
Colombia derives a considerable income.
" If there be an end and eternal and immutable principles in right,
that right of Colombia has been injured by the United States by an
incredible transgression of the limits set by equity and justice.
"Before the cowp de main which proclaimed the independence of
the Isthmus took place at Panama, there were in this very city agents
of the authors of that coup in conference with high personages clothed
with official character, as is asserted by reputable American news-
papers. I have received information to the effect that a bank in New
York opened a considerable credit in their favor, with a knowledge
of the general use for which it was intended, even though unaware
§ 344.] BEPUBLIC of PANAMA. 83
that it was to be applied in part to the bribery of a large part of the
garrison at Panama.
' ' Intercourse of any kind [said Mr. Seward] with the so-called ' commissioners ' is liable
to be construed as a recognition of the authority which appointed them. Such intercourse
would be none the less hurtful to us for being called unofficial, and it might be even more
injurious, because we should have no means of knowing what points might be resolved by
it. Moreover, unofficial intercourse is useless and meaningless if it is not expected to ripen
into official intercourse and direct recognition.^
" It will be well to say that before the news was divulged that a
revolution was about to break out on the Isthmus, American cruisers
which reached their destination precisely on the eve of the move-
ment were plowing the waters of the Atlantic and Pacific oceans.
Cablegrams that are given public circulation in an official document
show that two days before the movement the Secretary of the Navy
issued orders to those cruisers not to permit the landing of troops of
the Government of Colombia on Panama's territory.
"A military officer of the Government of the United States stopped
the railway from carrying to Panama, as it was under obligations to
do, a battalion that had just arrived at Colon from Bogota at the
very time when its arrival in that city would have impeded or sup-
pressed any revolutionary attempt. A few days thereafter, when
my Government intrusted me with the duty of leading the army that
was to embark at Puerto Colombia to go and restore order on the
Isthmus, being unacquainted except in an imperfect manner with
the attitude assumed by the American war ships, I had the honor to
address a note on the subject to Vice-Admiral Coglilan, and in his
reply, which was not delayed, he tells me that —
" his present orders are to prevent the landing of soldiers with hostile intent within the boun-
dary of the State of Panama.
" The Republic of Colombia, with a population of 5,000,000 souls,
is divided into nine departments, of wliich Panama is one of the least
populous, as the number of its inhabitants does not exceed 250,000,
while there are others in each of which they number over 900,000.
The Colombian army at the time consisted of 10,000 men, a force
more than sufficient to suppress the Panaman revolution if Your
Excellency's Government had not prevented the landing of the troops
under my command that were to embark at Puerto Colombia under
Generals Ospina, Holguin, and Calballero, who soon thereafter accom-
panied me to that city, and at Buenaventura, on the Pacific, under
Generals Velazco, Dominguez, and others. It is known that there
is no overland way to reach Panama with troops from the interior of
Colombia.
" The gravity of the facts contained in tliis recital increases as they
draw closer to the end.
a Mr. Seward to Mr. Adams, No. 10, May 21, 1861. — Translator.
84 INTEROCEANIC COMMUNICATIONS. [§ 344.
"In the midst of profound peace betweon the two countries, the
United States prevented by force the landing of troops where they
were necessary to reestabHsh order, in a few hours, in the insurgent
province. Because of this circumstance, and as a coup de main, cer-
tain citizens of Panama, without taking into account the consent of
the other towns of the department, proclaimed the independence of
the Isthmus and organized a government. Two days after effecting
that movement they were recognized by the American Government
as a sovereign and independent republic, and fourteen days later the
American Government signed a treaty with the Republic of Panama
which not only recognized and guaranteed its independence, but
agreed to open a canal for the purpose of uniting the waters of the
Atlantic with those of the Pacific.
"It is well known that the contract which Colombia made with
the French company, in the exercise of its perfect right, for the con-
struction of this canal, is in force and will remain in full force and
vigor, legally at least, so long as Colombia does not give her consent
for its transfer to a foreign government; since in the aforesaid con-
tract it is expressly stipulated that a transfer to any foreign govern-
ment, or any attempt whatever to make a transfer, would be cause
for absolute nullification.
"The same is true with regard to the Panama Railroad Company;
so that, without the express consent of Colombia, no transfer can have
legal effect, because it can not cancel the legal bonds which exist
between the Republic of Colombia and those companies — bonds grow-
ing out of perfect contracts, which, according to the precepts of uni-
versal jurisprudence, can not be disregarded because one of the
parties may consider that the strip of land in which the enterprise
radicated has been conquered by a foreign country. The lapse of
many years is necessary in order that the facts may establish the right,
and even without the need of such time elapsing the Colombians feel
sure that the justice and equity which control the acts of Your
Excellency's Government in its relations with all nations are a sure
pledge that our complaints and claims will be heeded.
" Nor is it just to expect anything else in view of the constant prac-
tice which the United States has established in similar cases. Among
many others, are set forth in its diplomatic annals the antecedent
history relative to the independence of South American States, pro-
claimed in 1810; that of the new state of Hungary, in the middle of
the last century; and that of Ireland, later, in 1866; not to make
mention of the practice systematically observed by the powers, of
which their procedure when the Netherlands proclaimed independ-
ence in the time of the Philips of Spain is an example. In this rela-
tion the precedent of Texas, when the United States Senate disap-
§ 344, "[ REPUBLIC OF PANAMA. 85
proved tlie treaty signed by the Washington Cabinet with the seces-
sionists of that Mexican province, has an especial significance.
" In the note of Mr. Seward, Secretary of State, to Mr. Adams,
United States minister, in 1861, this doctrine is found:
' ' We freely admit that a nation may, and even ought, to recognize a new state which
has absolutely and beyond question effected its independence, and permanently estab-
lished its sovereignity; and that a recognition in such a case affords no just cause of offense
to the government of the country from which the new state has so detached itself. On the
other hand, we insist that a nation that recognizes a revolutionary state, with a view to
aid its effecting its sovereignity and independence, commits a great wrong against the nation
whose integrity is thus invaded, and makes itself responsible for a just and ample redress.
(Foreign Relations, 1861, pp. 76-77.)
"At another point, in the same note, the Secretary says to the
minister:
' ' To recognize the independence of a new state, and so favor, possibly determine, its
admission into the family of nations, is the highest possible exercise of sovereign power,
because it affects in any case the welfare of two nations, and often the peace of the world.
In the European system this power is now seldom attempted to be exercised without invok-
ing a consuftation or congress of nations. That system has not been extended to this con-
tinent. But there is even a greater necessity for prudence in such cases in regard to Amer-
ican states than in regard to the nations of Europe. (Foreign Relations, 1861, p. 79, Mr.
Seward to Mr. Adams, No. 2, April 10, 1861.)
"Referring to the consideration which nations should mutually
observe, he adds:
"Seen in the light of this principle, the several nations of the earth constitute one
great federal republic. When one of them casts its suffrages for the admission of a new
member into that republic, it ought to act under a profound sense of moral obligation,
and be governed by considerations as pure, disinterested, and elevated as the general
interest of society and the advancement of human nature. (Foreign Relations, 1861,
p. 79, Mr. Seward to Mr. Adams, No. 2, April 10, 1861.)
"It would seem that nothing could be added to the benevolence
of these noble and humanitarian doctrines, written by the great man,
who, unhappily for his country and for Colombia, is not living to-day.
"If the sovereignty of a nation gives to it especially the power to
govern itself; if the right to look after its own interests is an attrib-
ute of sovereignty; if, upon such right, rests the stability and secu-
rity of international relations, respect for such sovereignty should
be the more heeded by one who is obligated, as is the United States,
not only by international precepts, but also by an existing public
treaty from which it has derived indisputable advantages. The
pertinent part of the thirty-fifth article of the treaty in force between
the United States and Colombia reads as follows:
" And, in order to secure to themselves the tranquil and constant enjoyment of these
advantages, and as an especial compensation for the said advantages and for the favors
they have acquired by the fourth, fifth, and sixth articles of this treaty, the United States
guarantees, positively and efficaciously, to New Granada, by the present stipulation, the
perfect neutrality of the before-mentioned Isthmus, with the view that the free transit
86 INTEBOCEANIC COMMUNICATIONS. [§344.
from the one to tlio otiier st«a may not be interrupted or embarrassed in any future time
while this treaty exists; and, in consequent*, tlie United States also guarantees, in the
same manner, the rights of sovereignty and property which New Granada has and pos-
sesses over the said territory.
" It may be said that the power of the United States is for the time
being hmitless, not only by reason of its laws and its resources of
every kind, but also on account of the respect with which its great-
ness inspires the world. But in order to deal justly with a weak
country this circumstance should be taken into account — that, in
stipulating to guarantee 'the perfect neutrality and property of the
Isthmus' it could not be supposed that the words 'neutrality' and
' property ' could be given any other interpretation than the technical
one they have. If, by a cowp de main, the revolutionists have
snatched from Colombia the property of the Isthmus, it seems natu-
ral that the United States, in view of the aforesaid stipulation,
should return the property to its legitimate owner. It does not
seem right to give the word ' neutrality ' the interpretation that, by
its application, the acts of the revolutionists shall be left free, because,
among other reasons, the stipulation contained in the thirty-fifth
article above quoted excepts no case; nor did it foresee, as it could
not have foreseen, that the United States would prevent Colombia
from landing her forces in Panama territory in case of secession.
" If Colombia had not sufficient force to compel Panama to remain
a part of the national unit, it would, without doubt, have asked the
mediation of some friendly country in order to reach an under-
standing with the de facto government which has been established
there.
" But for it to have been able to subdue it by force it was necessary
that Your Excellency's Government should remain neutral in the
dispute; in not having done so, your Government itself violated
' the rights of sovereignty and the property wliich Colombia has and
possesses over the said territory, ' not complying, consequently, with
the obligation it contracted to guarantee those rights as set forth in
the above-cited part of the thirty-fifth article of the treaty. And it
may be observed that the United States continues deriving the advan-
tages granted under the treaty, while we lose those wliich we gave
in order to obtain such guaranties.
" The true character of the new state of Panama is revealed in the
fact that it came into existence by a coup de main, effected by the
winning over of troops, valorous without doubt, but who have fought
against no one, assaulted no intrenchment, captured no fort — con-
tenting themselves with putting in prison the constituted authorities.
^' If conserving our national integrity, with a few years of peace, we
could recover the powers we have lost through unfortunate civil wars,
and could hope, by reason of the moral and physical capacity of our
§ 344.] KEPUBLIC OF PANAMA. 87
race, to take a distinguished position in the American Continent;
but if the Government of the United States, by preventing the mili-
tary action of Colombia to subject the rebels to loyal obedience,
should, in a way, make itself the ally of the Panama revolutionists,
that Government will be responsible for any new secession movement
that may odcur, and also, before history at least, for any anarchy,
license, and dissolution which «, further dismemberment might occa-
sion. Sad indeed is the fate of my country, condemned at times to
suffer calamities from its own revolutions and at others to witness
the unexpected attacks of a powerful but friendly state, which for
the first time breaks its honored traditions of respect for right —
especially the right of the weak — to deUver us pitilessly to the
unhappy hazards of fortune.
" There shall be a perfect, firm, and inviolable peace [says the first article of the afore-
said treaty] and sincere friendship between the United States of America and the Republic
of New Granada (now Colombia) in all the extent of their possessions and territories, and
between their citizens, respectively, without distinction of persons or places.
"If the United States repels by force the action of our armies in
Panama, is not this a clear violation of this article, since peace in one
of the Colombian territorial possessions is broken?
"The Panama revolutionists, counseled by speculators from sev-
eral countries, who had assumed the direction of affairs, did not
consult the opinion of the inhabitants of their own territory, for there
are good reasons for the belief that there are in that territory thou-
sands of persons who, respecting order and authority, have con-
demned the separatist movement with a determined will and in most
energetic and severe terms.
"Colombia, in its internal law, has never recognized the principle
of secession, because, among other reasons, the obligations con-
tracted with foreign nations by treaty, or with private parties by
contract, rest upon the mass of the assets which the State possessed
at the moment when the common authority contracted such obli-
gations.
"If the people of Panama, animated by the noble sentiments
which induced men of action to seek quicker and more rapid prog-
ress, had proclaimed their independence and, without foreign aid,
been victorious in battle waged against the armies of the mother
country, had organized a government, drawn up laws, and proved
to the world that it could govern itself by itself and be responsible
to other nations for its conduct, without doubt it would have become
entitled to recognition by all the powers.
" But none of these things having occurred, and judging by the
practice which in similar cases has guided the conduct of the Amer-
ican Government, the belief is warrantable that the recognition that
88 IlITEROCEANIC COMMUNICATIONS [§344.
has been given would probably no luive been made if there had not
existed in Panama the best route lor tlie isthmian canal.
"In the former case Colombia would have had no right to com-
plain of the failure to fulfill the existing treaty, nor would it have
shunned any legitimate means for seeking an arrangement that
should dissolve the civil bonds which unite it with those enterprises
radicated on Panama territory by contracts made in the exercise of
a perfect right.
"But Panama has become independent, has organized a Govern-
ment, has induced a few powers prematurely to recognize her sov-
ereignty, has usurped rights which do not belong to her in any case,
and has ignored the debts which weigh upon Colombia (debts con-
tracted, many of them, to reestablish order which her sons have
often disturbed), because the Government of the United States has
desired it ; because, with its incomparably superior force, the United
States has prevented the landing of Colombian troops destined to
reestablish order after our having exhausted every possible means
of friendly understanding; because the United States, even before
the separatist movement was known in Bogota, had its powerful
war vessels at the entrances of our ports, preventing the departure
of our battalions; because, without regarding the precedents estab-
lished by statesmen who have dealt with this matter, the United
States has not respected our rights in that strip of land which Co-
lombia considers as a divine bequest for the innocent use of the
American family of states; and, finally, because the Government
of the United States, invoking and putting into practice the right
of might, has taken from us by bloodless conquest — but by conquest,
nevertheless — the most important part of the national territory.
"Every nation is responsible to other nations for its conduct,
whence it follows that all have among themselves rights and obliga-
tions, but these rights and obligations are limited by the right of
property. The owner of an estate can not oppose the passage
through his land — for example, of a railroad which the community
needs — but he may demand that he be indemnified for the damage
done him. In the same manner a state should certainly not obstruct
the passage through its territory of a canal which the progress of
the age and the needs of humanity have made necessary, but it has
the right to impose conditions which shall save its sovereignty and
to demand indemnification for the use thereof. Reasons based on
the needs of humanity are undoubtedly very powerful, but they do
not convincingly prove that the legitimate owner shall be deprived
of a large part of his territory to satisfy such needs.
"It might be said to me that exaggerated demands or obstacles
which are intentionally raised are equivalent to a refusal. But this
is not our case. Colombia has made divers treaties and contracts
§ 344.] REPUBLIC OF PANAMA. 89
with foreign countries for the construction of a Panama Canal, and
if they have not been carried into effect, as was the case with the
treaty with the United States in 1870 and the contract with the
French company later, it was not the fault of Colombia. Our de-
mands have not been exaggerated, inasmuch as the terms of the
treaty negotiated with the American representative were more ad-
vantageous than those stipulated with the French representative,
and the conditions set forth in the Hay-Herran convention were
much more disadvantageous than those made with the French com-
pany. The fact that the United States demands from us, in order
to carry out the enterprise, a part of our sovereignty, which, under
our laws, we can not legally concede so long as the constitution is
not modified, because the powers that did it would be responsible
before the judicial branch, does not mean that we have been opposed
nor that we are opposed to the realization of the greatest undertak-
ing of the kind which the past and future centuries have seen or
will see.
" Civil wars are a calamity from which no nation has ever been
able to free itself. This being true, to hold responsible the Govern-
ment which suffers revolutions because it can not prevent them or be-
cause it hastens to remedy them when danger menaces seems a noto-
rious injustice, because, if the principle of foreign intervention in
civil confUcts were accepted, there would be few cases that would
not be converted in the end into international wars. To refrain
frofii dealing or treating with a state for fear of civil wars might be
deemed equivalent to refraining from 'constructing ships for fear
of shipwrecks or building houses for fear of fire. ' Nor is it under-
stood what power there would be that would assume the unhappy
task of imposing peace upon the rest, nor under what conditions it
would do so, since to take away portions of their territory would be a
punishment greater than the fault.
"In this crisis of the life of my country, as unlooked for as it is
terrible, Colombia rests its most comforting hopes in the sentiments
of justice which animate the Government of your excellency, and
confidently trusts that that Government, which has so many times
surprised the world by its wisdom, will, on this occasion, astonish
it by its example.
"In any event, Colombia complies with the duty imposed upon
her by the treaty of 1846 in that part of the 35th article which says:
"... neither of the two contracting parties shall ordain or authorize any acts
of reprisal, nor shall declare war against the other on complaints of injuries or damages,
until the said party considering itself offended shall have laid lx>fore the other a statement
of such injuries or damages, verified by competent proofs, demanding justice and satisfac-
tion, and the same shall have been denied, in violation of the laws and of international
right.
90 INTEROCEANIC COMMUNICATIONS. [§ 344.
"Since the aforesaid treaty is the law which governs between the
two countries, and now that the weakness and ruin of my country,
after three years of civil war scarcely at an end, and In which her
bravest sons were lost by thousands, place her in the unhappy posi-
tion of asking justice of the Government of your excellency, I pro-
pose that the claims which I make in the present note on account of
the violation of the aforesaid treaty, and all other claims which may
hereafter be made in connection with the events of Panama, be sub-
mitted to the Arbitration Tribunal of The Hague."
General Reyes, special minister of Colombia, to Mr. Hay, Sec. of State, Dec. 23, 1903,
For. Rel, 1903, 284-294.
^ "The Government of the United States has care-
'ja,tL5, 1904. fully considered the grave complaints so ably set
forth in the 'statement of grievances' presented on
behalf of the Government and people of Colombia, with your jiote
of the 23d ultimo.
" The Government and people of the United States have ever enter-
tained toward the Government and people of Colombia the most
friendly sentiments, and it is their earnest wish and hope that the
bonds of amity that unite the two peoples may forever remain unbroken.
In this spirit the Government of the United States, mindful that
between even the most friendly nations differences sometimes unhap-
pily arise, has given to your representations the most deliberate
^nd earnest attention, and in the same spirit it will employ every
effort consistent with justice and with its duty to itself and to other
nations not only to maintain but also to strengthen the good rela-
tions between the two countries.
"At the present moment the questions which you submit can be
viewed only in the light of accomplished facts. The Republic of
Panama has become a member of the family of nations. Its inde-
pendence has been recognized by the Governments of the United
States, France, China, Austria-Hungary, Germany, Denmark, Russia,
Sweden and Norway, Belgium, Nicaragua, Peru, Cuba, Great Britain,
Italy, Japan, Costa Rica, and Switzerland. These solemn acts of
recognition carry with them international obligations which, in peace
as in war, are fixed by the law of nations and which cai> not be dis-
regarded. A due appreciation of this circumstance is shown in
yiQjijr admission, made with a frankness and fairness honorable alike
to your Government and to yourself, that 'Panama has become
independent — has organized a government.'
" The action not merely, as you observe, of a ' few powers,' but of
all the so-called 'great powers' and many of the lesser ones, in
recognizing the independence of Panama, leaves no doubt as to the
public opinion of the world concerning the propriety of that measure.
The law of nations does not undertake to fix the precise time at
§ 344.] REPUBLIC OP PANAMA. 91
which recognition shall or may be extended to a new state. This is
a question to be determined by each state upon its own just sense
of international rights and obligations; and it has rarely happened,
where a new state has been formed and recognized within the limits of
an existing state, that the parent state has not complained that the
recognition was premature. And if in the present instance the powers
of the world gave their recognition with unwonted promptitude, it is
only because they entertained the common conviction that interests
of vast imjiortance to the whole civilized world were at stake, which
would by any other course be put in peril.
" The independence of the Republic of Panama being an admitted
fact, the Department will proceed to consider the complaints pre-
sented by you on behalf of your Government as to the manner in
which that independence was established. In performing this task
I desire to avoid all appearance of recrimination; and if I shall not be
wholly successful in so doing, it is only because I am under the neces-
sity of vindicating the conduct of this Government against reproaches
of the most grave and unusual character. The Department is in
duty bound to deal with these charges in a spirit of the utmost candor;
but in performing this duty it will not seek in unofficial sources
material for unjust and groundless aspersions. It is greatly to be
regretted that your duty to your Government could not, in your
estimation, have been discharged within similar limitations.
"With every disposition to advance the purpose of your mission,
the Department has read with surprise your repetition of gross
imputations upon the conduct and motives of this Government,
which are said to have appeared in ' reputable American newspapers.'
The press in this country is entirely free, and as a necessary conse-
quence represents substantially every phase of human activity, interest,
and disposition. Not only is the course of the Government in all mat-
ters subject to daily comment, but the motives of public men are as
freely discussed as their acts ; and if, as sometimes happens, criticism
proceeds to the point of calumny, the evil is left to work.its own cure.
Diplomatic representatives, however, are not supposed to seek in such
sources material for arguments, much less for grave accusations.
Any charge that this Government or any responsible member of it held
intercourse, whether official or unoffical, with agents of revolution in
Colombia is utterly without justification.
" Equally so is tlie insinuation that any action of this Government
prior to the revolution in Panama was the result of complicity with
the plans of the revolutionists. The Department sees fit to make
these denials, and it makes them finally.
"The origin of the Republic of Panama and the reasons for its
independent existence may be traced in certain acts of the Govern-
ment of Colombia, which are matters of official record.
92 INTEROCEANIC COMMUNICATIONS. [§ 344.
" It is a matter of common knowledge that tlic quest of a way to
the westward, across the sea, from Europe to Asia led to the discovery
and settlement of the American continents. The process of coloni-
zation had, however, scarcely begun when the adventurous spirits
of that age, not to be balked in their undertaking by an obstacle
that seemed to be removable, began to form projects for a canal to
connect the Atlantic and Pacific oceans. As early as 1528 a proposal
was laid before the Emperor Charles V. for the opening of such a way
across the Isthmus of Panama. From that day to the present the
project has continued to occupy a place among the great enterprises
yet to be accomplished. It remains unfulfilled only because the
experience of four himdred years has demonstrated that private
effort is wholly inadequate to the purpose, and that the work nnust
be performed, if at all, under the auspices of a government of the
largest resources. There was only one such government in a position
to undertake it. By a well-settled policy, in which all American
nations are understood to concur, the assumption of the task by any
of the great governments of Europe was pronounced to be inadmis-
sible. Among American governments there was only one that seemed
to be able to assume the burden, and that was the Government of
the United vStates.
" Such was the precise situation when the United States manifested
its determination to construct the great highway across the Ameri-
can isthmus. Its purpose was universally applauded. The circum-
stance that this Government possibly might, in return for the great
expenditures which it was about to hazard, derive from the construc-
tion of the canal some special advantage was not thought to be a
reason for opposing what was to be of such vast benefit to all man-
kind. The Clay ton-Bulwer treaty was conceived to form an obsta-
cle, and the British Government therefore agreed to abrogate it, the
United States only promising in return to protect the canal and keep
it open on equal terms to all nations, in accordance with our tradi-
tional policy. Nor were indications wanting of appreciation on the
part of the American Republics. On January 22, 1902, the second
Pan-American conference, sitting at the City of Mexico, adopted the
following resolution:
"The Republics assembled at the International Conference of Mexico applaud the pur-
pose of the United States Government to consti-uct an interoccanic canal, and acknowl-
edge that this work will not only be worthy of the greatness of the American people, but
also in the highest sense a work of civilization and to the greatest degree beneficial to the
development of commerce between the American States and the other countries of the
world.
"Among the delegates who signed this resolution, which was
adopted without dissent, was the delegate of Colombia.
§ 344.] REPUBLIC OF PANAMA. 93
"At that time the Government of the United States had not form-
ally decided upon the route for the canal, whether by way of Panama
or of Nicaragua. Owing to the lack of correct information there had
long existed a strong tendency toward the latter route, but, as the
result of more thorough investigations, a decided change in opinion
had begun to appear. To Colombia this change was understood to
be very gratifying. As early as May 15, 1897, the Colombian charge
d'affaires at Washington, speaking in the name of his Government,
represented in a ' friendly spirit ' that any official assistance extended
by the United States to the Nicaraguan Canal Company would work
serious injury to Colombia.
"In a similar sense Seiior Martinez Silva, then Colombian minister
at this capital, in a note of December 7, 1901, referring to a press
report that the Isthmian Canal Commission had, by reason of the
excessive price fixed by the Panama Canal Company, reported in
favor of the Nicaraguan route, assured the Department that the
price was not final, and after declaring that the matter was one that
affected 'the interests of the Colombian Government, which is well
disposed to facilitate the construction of the proposed interoceanic
canal through its territory,' said:
" It would indeed be unfortunate if, through misunderstandings arising from the absence
of timely explanations, the Government of the United States should be forced to select a
route for the proposed canal which would be longer, more expensive, both in construction
and maintenance, and less adapted to the commerce of the world than the short and half-
finished canal available at Panama.
"On June 28, 1902, the President of the United States gave his
approval to the act now commonly referred to as the Spooner Act,
to provide for the construction of the interoceanic canal. Following
the report of the Isthmian Canal Commission, which confirmed the
opinion expressed by the Colombian Government, it embodied the
formal decision of the United States in favor of the Panama route. It
accordingly authorized the President to acquire, at a cost not exceed-
ing $40,000,000, 'the rights, privileges, franchises, concessions,' and
other property of the New Panama Canal Company, including its
interests in the Panama Railroad Company, and to obtain from
Colombia on such terms as he might deem reasonable, perpetual con-
trol for the purposes of the canal of a strip of land not less than six
miles wide, such control to include jurisdiction to make and, through
such tribunals as might be agreed on, to enforce such police and
sanitary rules and regulations as should be necessary to the preser-
vation of order and of the public health.
"The act also provided, in a clause to which your statement
adverts, that, in case the President should 'be unable to ()l:)tain for
the United States a satisfactory title to the property of the New
94 INTEROCEANIC COMMUNICATIONS. [§ 344.
Panama Canal Company and the control of the necessary territory
of the Republic of Colombia,' together with the 'rights' mentioned
in connection therewith, ' within a reasonable time and upon reason-
able terms,' he should turn to Nicaragua. But this provision, while
it indicated that the construction of the canal was not wholly to
depend upon the success or failure to make reasonable terms with
Colombia and the canal company, by no means implied that the ques-
tion of routes was a matter of indifference.
"In the nature of things it could not be so. Not only was the
work to endure for all time, but its prompt construction was felt to
be of vast importance; and it could not be a matter of less concern
to the United States than to Colombia that this Government might
possibly be forced to adopt a route wliich would, as the Colombian
minister had observed —
"be longer, more expensive, both in construction and maintenance, and less adapt«d to the
commerce of the world than the short and half-finished canal available at Panama.
" Nevertheless, even if the route by Panama had been found to be
the only feasible one, it would have been highly imprudent for this
Government to expose itself to exorbitant demands.
"It possessed, indeed, tl^e gratifying assurance that the Colombian
Government was 'well disposed to facilitate the construction of the
proposed interoceanic canal through its territory,' and the Depart-
ment is pleased to add to this your present assurance that Colombia
considers the canal strip ' as a Divine bequest for the innocent use of
the American family;' but it was fully understood that, before the
canal was begun, arrangements of a very substantial kind would have
to be made ; and it was felt that, no matter how generous the views
of the Colombian Government might be, the canal company might be
indisposed to act in the same liberal spirit.
"The Spooner Act, in providing for the acquisition by the United
States of a limited control over the canal strip, merely followed the
lines of previous negotiations with Nicaragua and Costa Rica. Under
any circumstances, the exercise of such control could not have beell
considered unreasonable, but it was deemed to be altogether essential,
in view of the unsettled political and social conditions which had for
many years prevailed, and which unhappily still continued to exist,
along the canal routes, both in Nicaragua and in Panama. Its neces-
sity was clearly recognized in the Hay-Pauncefote treaty, and it was
on all sides fully understood to form a requisite part of any plan for
the construction of the canal by the United States. Neither while
the Spooner Act was pending before Congress nor at any previous
time was it intimated from any quarter that it would form a bar to the
carrying out of the great project for which the local sovereigns of the
canal routes were then such ardent competitors.
§ 344.] REPUBLIC OF PANAMA. 95
"After the Spooner Act was approved, negotiations were duly initi-
ated by Colombia. They resulted on January 22, 1903, in the con-
clusion of the Hay-Herran convention. By this convention every
reasonable desire of the Colombian Government was believed to b0
gratified. Although the concession to the United States of the right
to construct, operate, and protect the canal was understood to be in
its nature perpetual, yet, in order that no technical objection might
be raised, it was limited to a term of one hundred years, renewable at
the option of tliis Government for periods of a similar duration. The
limited control desired by the United States of the canal strip fol"
purposes of sanitation and police, not only in its own interest but also
in that of Colombia and all other governments, was duly acquired.
But in order that neither this, nor any other right or privilege, granted
to the United States, might give rise to misconception as to the pur-
poses of this Government, there was inserted in the convention this
explicit declaration:
"The United States freely acknowledges and recognizes this sovereignty [of Colortlbia]
and disavows any intention to impair it in any way whatever or to increase its territory at
the expense of Colombia or of any of the sister republics in Central or South America; but,
on the contrary, it desires to strengthen the power of the republics on this continent, and
to promote, develop, and maintain their prosperity and independence.
"This declaration was, besides, confirmed by the reaffirmation of
article 35 of the treaty of 1846, as well as by the stipulations made
with reference to the protection of the canal ; for it was expressly pro-
vided that only in exceptional circumstances, on account of unforeseen
or imminent danger to the canal, railways, or other works, or to the
lives and property of the persons employed upon them, should the
United vStates employ its armed forces without obtaining the previous
consent of the Government of Colombia, and that as soon as sufficient
Colombian forces should arrive for the purpose those of the United
States should retire.
"Moreover, in view of the great and to some extent necessarily
unforeseen expenses and responsibilities to be incurred by the United
States, the pecuniary compensation agreed to be made to Colombia
was exceedingly liberal. Upon the exchange of the ratifications of
the convention, $10,000,000 in gold were to be paid, a sum equivalent
to two-thirds of what is reputed to be the total amount 'of the Colom-
bian public debt; and, in addition to this, beginning nine years after
the same date, an annual payment of $250,000 in gold was to be
made, a sum equivalent to the interest on $15,000,000 at tlie rate at
wliich loans can be obtained by tliis Government. .
"Such was the convention. The Department will now consider
the manner in which it was dealt witii.
"In the 'statement of grievances,' to whicli I have now the honor
to reply, a prominent place is given to the stipulation that the con-
96 INTEBOCEANIC COMMUNICATIONS. [§ 344.
vention when signed should be * ratified according to the laws of the
respective countries,' and it is said that the course taken in Washington
was not different from that at Bogotfi,. In a naiTow, technical sense
this is true, but in a broader sense no supposition could be more mis-
leading. The convention was submitted to the Senate of the United
States on the day following its signature. From fii'st to last it was
cordially supported by the Administration, and on the 17th of March
it was approved without amendment.
"The course taken at Bogota affords a complete antithesis. The
Department is not disposed to controvert the principle that treaties
are not definitively binding till they are ratified ; but it is also a famil-
iar rule that treaties, except where they operate on private rights,
are, unless it is otherwise provided, binding on the contracting parties
from the date of their signature, and that in such case the exchange
of ratifications confirms the treaty from that date. Tliis rule neces-
sarily implies that the two Governments, in agreeing to the treaty
through their duly authorized representatives, bind themselves, pend-
ing its ratification, not only not to oppose its consummation, but also
to do jiothing in contravention of its terms.
"We have seen that by the Spooner Act, with reference to which
the convention was negotiated, the President was authorized to
acquire, at a cost not to exceed $40,000,000, 'the rights, privileges,
franchises, concessions,' and other property of the New Panama
Canal Company. It was, of course, well known to both Govern-
ments that the company under the terms of the concession of 1878
could not transfer to the United States 'its rights, privileges, fran-
chises, and concessions' without the consent of Colombia. Therefore
the Government of the United States before entering upon any deal-
ings with the New Panama Canal Company negotiated and concluded
the convention with Colombia. The first article of this convention
provides :
"The Government of Colombia authorizes the New Panama Canal Company to sell and
transfer to the United States its rights, privileges, properties, and concessions, as well as
the Panama Railroad and all the shares or part of the shares of that company.
" The authorization thus given, in clear and unequivocal terms,
covers expressly the 'rights, privileges, . . . and concessions'
of the company, as well as its other property.
" Some time after the convention was signed the Government of the
United States learned, to its utter surprise, that the Government of
Colombia was taking with the canal company the position that a
further permission, in addition to that contained in the convention,
was necessary to the transfer of its concessions and those of the Pan-
ama Railroad Company, respectively, to the United States, and that,
as a preliminary to this permission, the companies must enter into
agreements with Colombia for the cancellation of all her obligations
§ 344.] REPUBLIC OF PANAMA. 97
to either of them under the concession. This proceeding seemed all
the more singular in the light of the negotiations between the two
Governments. The terms in which the convention authorized the
New Panama Canal Company to sell and transfer its 'rights, privi-
leges, pcoperties, and concessions' to the United States were the same
as those embodied in the original draft of a treaty presented to this
Government by the Colombian minister on March 31, 1902.
"No change in this particular was ever suggested by Colombia, in
all the discussions that followed, until November 11, 1902. On that
day the Colombian minister presented a memorandum in which it
was proposed that the authorization should be so modified that 'the
permission accorded by Colombia to the canal and the railroad com-
panies to transfer their rights to the United States' should 'be regu-
lated by a previous special arrangement entered into by Colombia.'
To this proposal tliis Department answered that 'the United States
considers this suggestion wholly inadmissible.' The proposition was
then abandoned by Colombia, and the convention was nearly three
months later signed without any modification of the absolute authori-
zation to sell.
"The notices actually sent to the companies went, however, even
further than the rejected and abandoned proposal presented by the
Colombian minister, since thay required the companies to cancel all
obligations of Colombia to them, and thus to destroy the rights, privi-
leges, and concessions which she had by the convention solemnly
authorized the canal company to sell and transfer to the United
States. The whole superstructure so laboriously reared was thus
tlireatened with destruction by the removal of one of its foundation
stones.
"It was against this act of the Colombian Government itself that
the remonstrance made by the American minister, Mr. Beaupre, b}'^
instruction of his Government, on the 24th of April last, was pre-
sented. Great stress is laid upon this remonstrance in Colombia's
'statement of grievances,' as the first of a series of tliree diplomatic
representations which, by assuming to deny to the Colombian Con-
gress the exercise of its constitutional functions, affronted that body
and led the Colombian Senate to reject the convention. Unfortu-
nately for this supposition, the Colombian Congress was not in ses-
sion. It had not then been convoked; nor did it meet until the 20th
of June. The representation was made solely with a view to recall
to the Colombian Government the terms of the agreement which it
had itself concluded, but of which it seemed to have become oblivious.
The second representation was made, as you state, on the 18th of
June, two days before Congress met, but the cabled instruction under
which it was made was sent by this Government on the 9th of June.
H. Doc. 551— vol 3 7
98 INTEROCEANIC COMMUNICATIONS. [§ 344.
The third was made on the 5th of August, while the Congress was in
session. Its obvious purpose was, if possible, to exliibit the situation
in its true light.
"The Department would here gladly end its recital of the course of
the Colombian Government with what has already been exhibited,
but the circumstances do not permit it to do so. As the 'statement
of grievances' presented on behalf of Colombia is founded upon the
tacit assumption that her present plight is due solely to wrongs com-
mitted by this Government, it is necessary that the facts should be
disclosed.
"The violation by the Colombian Government, long before the
Congress assembled, of its agreement to the sale and transfer to the
United States of the rights and concessions of the canal and railway
companies was not the only act by which it manifested its purpose
to repudiate its own engagements. For some time after the con-
vention was signed, its terms appeared to be as satisfactory to the
people of Colombia as they seemingly had been to the Colombian
Government.
"This state of affairs continued until General Fernandez, in charge
of the ministry of finance, issued more than a month before the Con-
gress was convoked and more than two months before it met, a circu-
lar to the Bogota press, which, as Mr. Beaupre reported, 'had sud-
denly sprung into existence,' inviting discussion of the convention.
The circular in substance stated, according to Mr. Beaupre 's report,
that the Government ' had no preconceived wishes for or against the
measure;' that it was 'for Congress to decide,' and that Congress
would be largely guided by 'public opinion.' In view of what the
Government had already done, it is not strange that this invitation
to discussion was followed by violent attacks upon the convention,
accompanied by the most extravagant speculations as to the gains
which Colombia might possibly derive from its rejection. No
thought whatever seems to have been taken of the incalculable ben-
efits that would acbrue to Colombia as the direct and necessary result
of the construction of the canal. Only the immediate possibilities,
which the resources of this Government and the situation of the canal
company served to suggest, seem to have been taken into account.
" It is entirely impossible [said Mr. Bcauprd, writing on May 4, 1903] to convince these
people that the Nicaragua route was ever seriously considered by the United States; that
the negotiations concerning it had any other motive than the squeezing of an advantageous
bargain out of Colombia; nor that any other than the Panama route will Ix; selected.
. . . Therefore, it is contended, and generally Iwlievod, tiuit there is no inmiediate
necessity of confirming the Hay-IIerran convention: that the negotiations can Ix* .safely
prolonged, in the end securing very- much l>etter terms for Colombia. The public discussion
is largely along the lines of the loss of national honor by the surrender of sovereignty;
. . . private discussion, which perhaps more clearly reflects the real situation, is to the
effect that the price is inadequate.
§ 3M.] KEPUBLic OF Panama: , 99
"That Mr. Beaupre's summary of tlie situation — a situation which
seems logically to have followed from the Government's own meas-
ures— was correct is amply demonstrated in the sequel. The Dej)art-
ment deems it unnecessary to enter into any argument upon the
question raised at Bogota as to Colombia's 'sovereignty.' The con-
vention speaks for itself, and its provisions for the acknowledgment
and assurance of Colombia's sovereignty have already been set forth.
The explanations put forward in Colombia's 'statement of griev-
ances' merely repeat the pleas devised at the Colombian capital.
The sudden discovery that the terms of the convention, as proposed
and signed by the Colombian Government, involved a violation of
the Colombian constitution, because it requh'ed a cession to the United
States of the 'sovereignty' which it expressly recognized and con-
firmed, could be received by this Government only with the utmost
surprise. Nevertheless, the Colombian Senate unanimously rejected
the convention.
"This fact was communicated to the Department by Doctor Her-
ran on the 22d of August last, by means of a copy of a cablegram
from his Government. In that telegram the 'impairment' of
Colombian 'sovereignty' was mentioned as one of the 'reasons ad-
vanced in debate' for the Senate's action; but joined with it there
was another reason, with w^hich the Department had long been
familiar, namely, the ' absence ' of a ' previous agreement ' of the com-
panies with the Colombian Government for the transfer of their
privileges. To these reasons there was added a reference to the rep-
resentations made by Mr. Beaupre ; but it was said to be ' probable '
that the Colombian Congress would ' provide bases ' for ' reopening
negotiations.'
"No such action, however, was taken by the Colombian Congress.
On the contrary, by a report of the majority of the Panama canal
committee, read in the Colombian Senate on the 14th of October last,
it was recommended that a bill which had been introduced to author-
ize the Government to enter upon new negotiations should be ' indefi-
nitely postponed.' The reason for this recommendation is disclosed
in the same report. By a treaty concluded April 4, 1893, the original
concession granted to the Panama Canal Company was extended
until December 31, 1904.
"By a legislative act in 1900 a new extension was made till Octo-
ber 31, 1910; but the report, adopting a suggestion which had been
put forward in the press, raises a question as to whether this legisla-
tive extension was valid, and adds that if it was not valid the aspect
of the question would be entirely changed in consequence of the fact
that when a year later the Colombian Congress should meet in ordi-
nary session the extension of 1893 would have 'expired and every
privilege with it.' In that case, the report goes on to sa} , the Kepub-
100 • INTEBOCEANIC COMMUNICATIONS. [§344.
lie would become the 'possessor and owner, without any need of a
previous judicial decision and without any indemnity, of the canal
itself and of the adjuncts that belong to it,' and would not only be
able to 'contract . . . without any impediments,' but would be in
more clear, more definite, and more advantageous possession, both
legally and materially.
"This programme, if not expressly, was at least tactily adopted
by the Colombian Congress, which adjourned on the 31st of Octo-
ber without providing any bases for the reopening of negotiations.
It was a scheme to wliich this Government could not possibly have
become a party. Of this fact the Colombian Government was duly
notified when the first intimation of its purpose was, long anterior
to the assembling of the Congress, first disclosed. The Colombian
Government was expressly informed that such action on its part,
or on that of the companies, would be inconsistent with the agree-
ments already made between the United States and the canal com-
pany, with the act of June 28, 1902, under the authority of which
the convention was made, and with the express terms of the con-
vention itself. It was, under the circumstances, equivalent to a
refusal of all negotiation with this Government.
"Under these circumstances it was the intention of the President
before further action to submit the matter to Congress, which was
then soon to assemble. The situation, however, was presently
changed. If the Government at Bogota, as the ' statement of griev-
ances' assures us, 'fell into error' in supposing that the only conse-
quence of its rejection of the convention would be the abandonment
of the Panama route by this Government, its blindness to a situation
at home that was attracting the attention of the world can only be
imputed to itself. Reports of impending trouble, as the result of
what was going on at Bogota, were rife.
"Advices came to this Government, not only through the press
but also through its own officials, of the existence of dangerous con-
ditions on the Isthmus, as well as in the adjacent States whose inter-
ests were menaced. Disorders in that quarter were not new. In
the summer of 1902, as well as in that of 1901, this Government had
been obliged hj its forces to maintain order on the transit route,
and it took steps, as it had done on previous occasions, to perform a
similar duty should the necessity arise. The form the trouble might
take could not be foreseen, but it was important to guard against any
destructive effects.
"The reasonableness of these precautions soon became evident.
The people of Panama rose against an act of the Government at
Bogota, that threatened their most vital interests with destruction
and the interests of the whole world with grave injury. The move-
ment assumed the form of a declaration of independence. The
UBRARY
UNIVERSITY OF CALIFORNiA
§ 344.] KEPUBLIC OF PANAMA. i*VCK5IDC -^q-^
avowed object of tliis momentous step was to secm'e the construc-
tion of the interoceanic canal. It was inspu-ed by the desu^e of the
people at once to safeguard theii" own interests and at the same time
to assure the dedication of the Isthmus to the use for which Provi-
dence seemed to have designed it.
"The situation thus suddenly created, as the direct and immediate
consequence of the act of the Government at Bogota, was, as has
already been observed, one that deeply concerned not only this Gov-
ernment but the whole civilized world; but the interests of the
United States were especially implicated by reason of the treaty of
1846 with New Granada. This treaty is frequently cited in Colom-
bia's 'statement of grievances,' and the United States is repeatedly
charged with having violated it. But, while its terms are employed
as the basis of every accusation against this Government that they
can with any plausibility be made to support, its great and funda-
mental design, the disregard of which by Colombia produced the
revolution on the Isthmus, is wholly passed over and neglected.
The Department is obliged to remedy this defect.
"In speaking of the treaty of 1846 both Governments have in
mind the thirty-fifth article, which forms in itself a special and dis-
tinctive international engagement. By this article —
"the Government of New Granada guarantees to the Government of the United States that
the right of way or transit across the Isthmus of Panama upon any modes of communica-
tion that now exist, or that may be hereafter constructed, shall he free and open to the
Government and citizens of the United States.
"In return —
" the United States guarantees positively and efficaciously to New Granada . . . the per-
fect neutrality of the liefore-mentioned Isthmus, with the view that the free transit from
the one to the other sea may not be interrupted or embarrassed,
and —
"in consequence the United States also guarantee, in the same manner, the rights of sov-
ereignty and property which New Granada has and possesses over the said territon*-.
"The circumstances in which these engagements originated are
matters of history. For some years exceptional efforts had been
put forth to secure the construction of an interoceanic canal, and it
was commonly believed that certain European governments, and
particularly that of Great Britain, were seeking to obtain control of
the transit routes. That no ca])italist could be found to engage in
the construction of a canal without some greater securit}" for their
investments than the feeble and irregular local governments could
afford was universally admitted. But, on the other hand, it was
apprehended that the introduction of European monarchical inter-
ests would prove to be but the beginning of a process of colonization
that would in the end be fatal to the cause of republican govern-
ment.
102 . INTEROCEANIC COMMUNICATIONS. [§ 344.
"In this prcdicanicnt all eyes were turned to the United States.
The fii'st result was the conclusion of the treaty of 1846 with New
Granada. Its primary object was to assure the dedication of the
Isthmus to purposes of interoceanic transits, and above all to the
construction of an interoceanic canal. President Polk, in submit-
ting it to the Senate, assigned as the chief reason for its ratification
that a passage through the Isthmus —
"would relieve us from a long and dangerous navigation of more than nine thousand miles
around Cape Honi, and render our communication with our own possessions on the north-
west coast of America comparatively easy and speedy.
" It is true that the treaty did not require Colombia to permit such
a passage to be constructed; but sucli an obligation was so obvi-
ously implied that it w^as unnecessary to express it.
"Apart from the adaptation of the Isthmus to interoceanic transit,
and its use for that purpose, there existed, as between the United
States and New Granada, no common reason for the treaty's exist-
ence. This has always been well understood by both Governments.
In a note of the Colombian charge d'affaires at Washington, of Jan-
uary 3, 1899, commending the Panama enterprise to the good will of
this Government, reference is made to the advantages which the
United States ' would derive from the Panama Canal, when studied
in the light of that international agreement,' the treaty of 1846.
The same treaty was expressly incorporated into and perpetuated in
the Hay-Herran convention. And it may be added that the Pan-
ama Canal, so far as it has progressed, was built under the protection
of the same engagement.
"The guaranty by the United States of the neutrality of the Isth-
mus, and of the sovereignty and propert}^ of New Granada thereover,
was given for the conservation of precisely this purpose. To this
end the United States undertook to protect the sovereign of the Isth-
mus from attacks by foreign powers. The powers primarily in view
were those of Europe, but the treaty made no discriminations. The
theory on which the 'statement of grievances' proceeds, that the
treaty obliged the Government of the United States to protect the
Government of New Granada against domestic insurrection or its
consequences, finds no support in the record, and is in its nature
inadmissible.
" Only a few years before the treaty was made the original Repub-
lic of Colombia was dissolved into the States of Venezuela, Ecuador,
and New Granada, and since the treaty w^as made the Republic of
New Granada has been successively transformed into the United
States of Colombia and the present Republic of Colombia. With
these internal changes the Government of the United States was not
permitted to concern itself, so far as they did not affect its treaty
rights and obHgations. Indeed, it is not to be imagined that New
§ 344.] REPUBLIC OF PANAMA. 103
Granada desired or that the United States would have been willing to
take part in the former's internal revolutions.
''That the United States has faithfully borne, during the long
period since the treaty was concluded, the full burden of its responsi-
bilities does not admit of question.
" A principal object of New Granada [said Mr. Fish, in a note to the Colombian minister
of May 27, 1871] in entering into the treaty is understood to have been to maintain her
sovereignty over the Isthmus of Panama against any attack from abroad. That object
has been fully accomplished. No such attack has taken place, though this Department has
reason to believe that one has upon several occasions been threatened, but has been averted
by warning from this Government as to its obligations under the treaty.
" In January, 1885, when Colombia appealed to the United States in
the hope of averting the hostilities with wliich she was believed to be
threatened on account of the Italian subject, Cerruti, this Govern-
ment caused an intimation to be made of the serious concern which it —
"could not but feel were a European power to resort to force against a sister repubUc of
this hemisphere as to the sovereign and uninterrupted use of a part of whose territory we
are guarantors, under the solemn faith of a treaty.
" Such is the spirit in which the United States has on various occa-
sions discharged its obligations.
' 'The United States has done more than this. It has assumed and
discliarged, as if primarily responsible, duties which in the first
instance rested on Colombia. According to the language of the
treaty, the right of the Government and people of the ^Inited States
to a free and open transit across the Isthmus was guaranteed by New
Granada; but the United States has been able to secure the benefits
of it only by its own exertions; and in only one instance, and that as far
back as 1857, has it been able to obtain from Colombia any compen-
sation for the injuries and losses resulting from her failure to perform
her obligation. The Department deems it unnecessarj^ now to enter
into particulars, but is abundantly able to fiu-nish them.
"Meanwhile, the great design of the treaty of 1846 remained unful-
filled; and in the end it became apparent, as has heretofore been
shown, that it could be fulfilled only by the construction of a canal by
the Government of the United States. By reason of the action of the
Government at Bogota in repudiating the Hay-IIerran convention,
and of the views and intentions disclosed in connection with that
repudiation, the Government was confronted, when the revolution at
Panama took place, with the alternative of either abandoning the
chief benefit which it expected and was entitled to derive from the
treaty of 1846, or of resorting to measures the necessity of which it
could contemplate only with regret.
"By the declaration of independence of the Republic of Panama a
new situation was created. On the one hand stood the Government
of Colombia invoking in the name of the treaty of 1846 the aid of tliis
104 * INTEROCEANIC COMMUNICATIONS. [§ 344.
Government in its efforts to suppress the revolution; on the other
hand stood the RopubHc of Panama that liad come into being in
order that the great design of tliat treaty might not be forever frus-
trated, but might be fulfilled. The Isthmus was threatened with
desolation by another civil war; nor were the rights and interests of
the United States alone at stake — the interests of the whole civilized
world were involved. The Republic of Panama stood for those inter-
ests; the Government of Colombia opposed them. Compelled to
choose between these two alternatives, the Government of the United
States, in no wise responsible for the situation that had arisen, did
not hesitate. It recognized the independence of the Republic of Pan-
ama, and upon its judgment and action in the emergency the powers
of the world have set the seal of their approvaf.
" In recognizing the independence of the Repubhc of Panama the
United States necessarily assumed toward that Republic the obliga-
tions of the treaty of 1846. Intended, as the treaty was, to assure the
protection of the sovereign of the Isthmus, whether the government
of that sovereign ruled from Bogota or from Panama, the Republic of
Panama, as the successor in sovereignty of Colombia, became entitled
to the rights and subject to the obligations of the treaty.
" The treaty was one which in its nature survived the separation of
Panama from Colombia. 'Treaties of alliance, of guaranty, or of
commerce are not,' says Hall, 'binding upon a new state formed by
separation; ' but the new state ' is saddled with local obligations, such
as that to regulate the channel of a river, or to levy no more than cer-
tain dues along its course.' (International Law, 4th edition, p. 98.)
To the same effect it is laid down by Rivier ' that treaties relating to
boundaries, to water courses, and to ways of communication,' consti-
tute obligations which are connected with the territory and follow it
through the mutations of national ownership. (Principes du Droit
des Gens, I, 72-73.) This Government, therefore, does not perceive
that, in discharging in favor of the present sovereign of the Isthmus
its duties under the treaty of 1846, it is in any way violating or failing
in the performance of its legal duties.
"Under all the circumstances the Department is unable to regard
the complaints of Colombia against this Government, set forth in
the ' Statement of grievances, ' as having any valid foundation. The
responsibility lies at Colombia's own door rather than at that of
the United States, This Government, however, recognizes the fact
that Colombia has, as she affirms, suffered an appreciable loss. This
Government has no desire to increase or accentuate her misfortunes,
but is willing to do all that lies in its power to ameliorate her lot.
The Government of the United States, in common with the whole
civilized world, shares in a sentiment of sorrow over the unfortunate
conditions which have long existed in the Republic of Colombia by
§ 344.] REPUBLIC OF PANAMA. 105
reason of the factional and fratricidal wars which have desolated her
fields, ruined her industries, and impoverished her people.
"Entertaining these feeling, the Government of the United
States would gladly exercise its good offices with the Republic of
Panama, with a view to bring about some arrangement on a fair and
equitable basis. For the acceptance of your proposal of a resort to
The Hague tribunal, this Government perceives no occasion. Indeed,
the questions presented in your 'Statement of grievances' are of
a political nature, such as nations of even the most advanced ideas
as to international arbitration have not proposed to deal with by
that process. Questions of foreign policy and of the recognition or
nonrecognition of foreign states are of a purely political nature, and
do not fall within the domain of judicial decision; and upon these
questions this Government has in the present paper defined its
position.
"But there may be, no doubt, other questions which may form a
proper subject of negotiation; among them, for instance, the estab-
lishment of diplomatic relations between the Republics of Colombia
and Panama, the delimitation of their respective boundaries, the
possible apportionment of their mutual pecuniary liabilities. If the
Government of Colombia will take these matters up, with any others
which they think may require discussion, and will put their sugges-
tions in regard to them in a definite and concrete form, they will
receive at the hands of this Government the most careful considera-
tion, with a view to bringing them, in the exercise of good offices, to
the attention of the Government of Panama."
Mr. Hay, Sec. of State, to Gen. Reyes, special minister of Colombia, Jan. 5, 1904,
For. Rel. 1903, 294-306.
" I have received the note which your excellency
Gen. Eeyes' note of ^j^j j^g ^^le honor to address to me under date of the
Jan. 6, 1904.
30th of December last, in answer to mine of the 29th
of the same month. I transmitted it by cable to my Government
and have received from it instructions to make to your excellency's
Government the following declarations :
"First. That the said note of the 30th of December from 3'our
excellency is regarded by my Government as an intimation that the
Colombian forces will be attacked by those of the ITnited States on
their entering the territory of Panama for the purpose of subduing
the rebellion, and that for that reason, and owing to its inability to
cope with the powerful American squadron that watches over the
coasts of the Isthmus of Panama, it holds the Government of the
United States responsible for all damages caused to it by the loss of
that national territory.
106 INTEROCEANIC COMMUNICATIONS. [§ 344.
"Second. That since tlie 3d of November last the revolution of
Panama would have yielded, or would not have taken place, if the
American sailors and the agents of the Panama Canal had not pre-
vented the Colombian forces from proceeding on their march toward
Panama, and that I, as commander in chief of the army of Colombia,
would have succeeded in suppressing the revolution of Panama as
early as the 20th of the same month if Admiral Coghlan had not noti-
fied me in an official note that he had orders from his Government to
prevent the landing of Colombian forces throughout the territory of
the Isthmus.
"Third. That the charges officially made against the Government
and Senate of Colombia that it was opposed to the work of the Panama
Canal, and that its purpose was to obtain a greater amount of money
from the American Government and to recover the concession of the
French company arc unfair and groundless, and the proof of this
assertion is that the Colombian Senate refused to ratify the Hay-
Herran treaty, not because a greater sum of money was demanded,
but because the treaty was contrary to the constitution of the coun-
try, which prohibits the cession of sovereignty over national territory ;
but the necessity of the canal is so well recognized in Colombia that
it was proposed, in the discussion of the Senate, to amend the con-
stitution in order to remove the constitutional difficulty, and the
minister of foreign relations, after the sessions of Congress were closed,
directed the charge d'affaires. Doctor Herran, to advise the Govern-
ment of your excellency that that of Colombia was ready to enter
into renewed negotiations for a canal convention, and that it purposed
to remove the existing constitutional difficulties. The charge made
against the Government of Colombia that it purposed to cancel the
concession of the French company vanishes as soon as it be known
that under the latest extension granted to it by Colombia the said
concession would not lapse until the year 1910.
"Fourth. That the failure of the Colombian Senate to ratify the
Hay-Herran treaty, for the reasons above stated, can not be regarded
as an act of discourtesy or unfriendliness, as the minister of foreign
relations of Colombia, Senor Rico, told the minister of the United
States, Mr. Beaupre, at Bogota, because a treaty prior to its ratifi-
cation is nothing but a project which, according to the laws of nations,
neither confers rights nor imposes obligations, and therefore its
rejection or delay in its ratification gives no groimd for the adoption
of measures tending to alter the relations of friendship between the
two countries. If it were not so, the mere act of preparing a public
treaty would be an occasion for serious danger instead of an element
of peace and progress, which is the predicament in which Colombia
finds herself at present, owing to her weakness.
§344.] REPUBLIC OF PANAMA. 107
"Fifth. That while the treaty of 1846 gives to the Government of
the United States the right to maintain and protect the free transit of
the Isthmus at the requ'est of Colombia and when the latter is unable
to do so, it places it under the obligation of enforcing the respect of
Colombia's sovereignty over the territory of the Isthmus, and that
the American Government has now not only failed to discharge that
duty, but has prevented the Colombian forces from recovering the
national sovereignty on the Isthmus, and thus the said treaty of 1846
being in full force, Colombia holds that the Government of the United
States has no other reason than that of its own strength and of Colom-
bia's weakness for interpreting and applying it in the manner it has;
that is to say, for availing itself of the advantages and rights con-
ferred by the treaty, and refusing to fulfill the obligations imposed
thereby.
"Sixth. That it is known, from sworn statements, that the garri-
sons of Panama and Colon were bought with gold brought from the
United States, toward the end of October, by the Panama revolu-
tionists.
"Seventh. That if these revolutionists had not relied, and did not
now rely, on the armed protection of the United States, whose power-
ful squadrons on both the Pacific and Atlantic oceans have prevented,
and are preventing, since the 3d of November, the Colombian army
from landing its forces, the Panama revolution would have been
foiled by Colombia in a few hours.
"Eighth. That the Government of Colombia, holding a perfect
right that the cession of the compact with the French canal company
be not effected without its express consent, has instituted an action
against the said company before the French courts and asked that
the contract made with the American Government be declared null
and void.
"Ninth. That on the grounds above stated, the Government of
Colombia believes that it has been despoiled by that of the United
States of its rights and sovereignty on the Isthmus of Panama, and
not being possessed of the material strength sufficient to prevent this
by the means of arms (although it does not forego this method, which
it will use to the best of its ability), solemnly declares to the Govern-
ment of the United States:
"(1) That the Government of the United States is responsible to
that of Colombia for the dismemberment that has been made of its
territory by the separation of Panama, by reason of the attitude that
the said Government assumed there as soon as the revolution of the
3d of November broke out.
" (2) That the contract made })etween the United States and the
French canal company is null, since it lacks the consent of Colombia,
108 INTEROCEANIC COMMUNICATIONS. [§ 344.
and the latter has aheady brought suit against the said canal com-
pany before the French courts in the defense of its interests.
" (3) That the Government of Colombia does not nor will it ever
relinquish the rights it possesses over the territory of the Isthmus of
wliich it is now despoiled by the American forces, and will at all times
claim the said rights and try to vindicate them by every means within
its reach, and that for that reason the title over the territory of the
Isthmus that may be acquired by the United States for the opening
of the canal is void, and Colombia reserves to herself the right to claim
the said territory at any time.
" (4) That if the work of the Panama Canal is undertaken and car-
ried to completion in disregard and trespass of the rights of Colombia,
the latter puts it on record that she was denied justice by the United
States; that she was forcibly despoiled of the territory of the Isthmus
in clear violation of the treaty of 1846, and that she does not relin-
quish the rights she possesses over the said territory, and holds the
United States responsible for the damages caused to her.
" (5) That Colombia, earnestly wishing that the work of the canal
be carried into effect, not only because it suits her interests but also
those of the commerce of the world, is disposed to enter into arrange-
ments that would secure for the United States the execution and
ownership of the said work and be based on respect for her honor and
rights.
" (6) That the United States has never protected Colombia on the
Isthmus of Panama against foreign invasion, and that when it has
intervened to prevent the interruption of the traffic it has been in
help, or been at the suggestion of the Government of Colombia. In
this one instance it did so on its own initiative, with the obvious pur-
pose of protecting the secession of the Isthmus. The guarantee of
neutrality, if it were privileged, would estop the sovereign of the
land from maintaining order, wliich is contrary to the fundamental
principles of every government; and
" (7) That the course followed by the American Government at
Panama at the time when Colombia enjoyed peace, after overcoming
a revolution of three years' duration, which left her exhausted, is in
favor of any rebellion, but not of the maintenance of order, which is
contrary to the principles and antecedents of the policy of this great
nation as established in the war of secession.
"As the treaty with Panama, by which the rights of Colombia on
the Isthmus are plucked from her, is now under discussion in the
American Senate, I respectfully ask of your excellency that my note
of December 23 and the present one be submitted to that high body,
so that they may be taken into account in the discussion of the rights
of Colombia.
§ 344.] EEPUBLIC OF PANAMA. 109
" Inasmuch as official cliarges fiave been made against my country
in ttie documents sent to tfie Senate, I give notice to your excel-
lency that, in reply to those charges, I will publish my note of the
23d of December and the present one.
"I beg that your excellency will answer, as soon as possible, my
aforesaid note of the 23d of December."
Gen. Reyes, special minister of Colombia, to Mr. Hay, Sec. of State, Jan. 6, 1904,
For. Rel. 1903, 306-309.
" I have the honor to acknowledge receipt of your
^^j^%^^qqI "^ excellency's note of the 6th of January, 1904, which I
have read with most respectful care.
''I find that almost all the propositions brought forward in this
communication have been considered and fully answered in advance
in the note I had the honor to address you on the 5tli day of January.
I need, therefore, only briefly refer to a few matters which you
have brought forward for the fu'st time in your note of the 6th of
January. In the first paragraph of yom* note you state that your
Government regards my note to you of the 30th of December as an
intimation that the Colombian forces will be attacked by those of the
United States on their entering the territory of Panama. This infer-
ence of yours is wholly gratuitous. We have considered it our duty
to represent to you the serious responsibility which would have been
assumed by Colombia in a hostile demonstration of the character
you mention, and, at the same time, you were assured that the
United States Government in that event would reserve its liberty of
action and be governed by the circumstances of the case.
''Your excellency is pleased to assert that if this Government had
not intervened to preserve order on the Isthmus you would have been
able to put an end to the revolutionar}^ government in Panama in a
few hours. This is hardly consistent with your statement that the
late insurrection in Panama lasted three years. No human sagacity
can decide with certainty what would have been the duration or
result of such a conflict as would have ensued, nor what would have
been the amount of bloodshed and devastation which would have
afflicted the Isthnms, or the sum of the injury which would have
resulted to the world at large if this Government had not taken the
action of which you complain.
"In the third paragraph of your note you repeat 3"our claim that
the action of your Government in respect to the canal treaty was not
prompted by any desire for additional compensation, but solety by a
regard for your constitutional law. In reply to this I can only refer
your excellency to the repeated intimations we received during the
discussion of the treaty in Bogota from the highest and most honor-
able personages in the RepubHc, that a large increase of the pecuniary
110 INTEROCEANIC COMMUNICATIONS. [§344.
consideration would result in the ratification of the convention; to
the attempt wliich was made to induce the French canal company to
pay an enormous sum for permission to dispose of theii- property; and
to the report of the canal committee to the Colombian Senate, sug-
gesting the delay of all proceedings until the coming year, when the
extension of the concession might be declared invalid and the nation
might be in condition to deal with us without regard to the French
shareholders. Your reference to the constitutional question I have
aheady answered. The treaty which Colombia made and then
rejected contained no cession of sovereignty; but, on the contrary,
preserved the sovereignty of Colombia scrupulously intact.
"I do not consider that this Government is called upon to take
notice of your statement as to the sources from which the revolu-
tionary government obtained its funds. As this Government had no
participation in the preparation of the revolution, it has no concern
with thB details of its history.
"I note with regret the continued protest you make in the name of
your Government against the events which have taken place in
Panama, and the determination of Colombia not to accept the situa-
tion to which they have given rise. I am in harmony with the sincere
desire of the Government and the people of the United States in hop-
ing that your Government may see its way to conclusions more in
accordance with its true interests and those of its sister American
Republics, and that it may not reject the friendly assurances I am
charged to convey to you.
"I will not for a moment accept the imputation of unfriendly
motives or sentiments on the part of this country toward Colombia,
and, even if Colombia should persist in assuming a hostile attitude
toward us, it will only be after the most careful deliberation and with
extreme reluctance that this Government would shape its course in
accordance with the deplorable conditions thus created."
Mr. Hay, Sec. of State, to Gen. Reyes, special minister of Colombia, Jan. 9, 1904,
For. Rel. 1903. 309-311.
"I have the honor to acknowledge the reception
**Tan^fri904 °^ °^ ^"^ excellency's notes of the 5th and 9th of the
present month of January. In the first your excel-
lency answers my statement of grievances of the 23d of December
last; in the second your excellency makes a reply to my note of
the 6th instant, containing various declarations.
"I must state that, notwithstanding the respect that I owe to your
excellency's efforts, I find in the present case that my arguments
have not been refuted by the otherwise forceful papers to which I am
referring. I could abide by and even further fortify my arguments,
which the very cause they support make unanswerable, but I can see
§344.] REPUBLIC OF PANAMA. Ill
no result for such a course, since, under the circumstances that sur-
round the debate, there is, on the part of your excellency's Govern-
ment, no opinion to form, but a decision already reached.
"I therefore confine myself to submitting a few remarks on your
excellency's position in regard to my request that the pending differ-
ence be referred to The Hague tribunal.
"True, it lies with the several states to recognize a new member
of the family of nations; but haste and circumstances may always
involve a disregard of international law while profession is made to
maintain it.
"The recognition of a new state separated from a friendly nation
would be a legitimate act on the part of foreign nations, in so far as
they observe strict neutrality between the contesting parties; but it
is a violation of the principles that govern the relations of the inter-
national community when one of the belligerents is hindered from the
exercise of his rights and the use of his forces, and much more so
when a public treaty is infringed. The treaty of 1846 being in force
between the Governments of the United States and of Colombia, the
dilemma that confronted the former when the movement occm-red at
Panama may not have been that which your excellency comtem-
plates, but rather the following: Either to recognize that Panama was
an integral part of Colombia or invest it with the character of a sep-
arate entity.
"In the first case, whatever be the position of your excellency's
Government touching neutrality in intestine strifes, it had no cause
for preventing Colombia from subduing the rebellion; in the other
case the Government of the United States was obligated to enforce
the respect of Colombian sovereignty, and, in either event, it is as
untenable a proposition in law to hold obligations toward a nation as
fulfilled in one of its rebellions or separated provinces as, in mathe-
matics, to insist that the part and the whole are equivalent. And it
is lit here to observe that the reason why I asserted to your excellency
that if I had not been prevented from landing the forces under my
command on the 19th of November, fifteen days after the rebellion
had broken out, it would have been immediately smothered, is that
the garrison bought off in Panama did not exceed 200 men.
"At the close of the fii'st of the notes hereby answered, 3^our excel-
lency, referring to my proposal to refer to the arbitration of The
Hague tribunal the claims that my country desires to have settled in
an amicable and decorous manner, states that the questions presented
in my statement of grievances 'are of a political nature such as
nations of even the most advanced ideas as to international arbitra-
tion have not proposed to deal with by that process. ' I must point
out to your excellency tliat the infringement of the treaty of 1846 has
resulted in civil consequences of the greatest, import which do come
112 INTEROCEANIC COMMUNICATIONS. [§344.
within the scope of the jurisdiction of courts. Colombia, for instance,
has no claim against Germany, France, England, etc., by reason of
the recognition of Panama as an independent State, httle as the pro-
ceeding may be a friendly act, because she had and has no treaty
with those countries that made them guarantors of her sovereignty
and ownership; but with your excellency's Government the case is
very different, for reasons that may be ignored but which wiU live as
long as the sense of justice, slow but sure, shall endure in this world.
"The injuries that Colombia has already suffered and wUl continue
to suffer in consequence of the infringement of the treaty are mani-
fest and actual, and the refusal to entertain her claims as well as her
lacking the strength to secure redress put her under the painful neces-
sity of asking of the mighty Government and people of the United
States that the tribunal called upon to decide her case be one of
unquestionable standing and impartiality. I have such a high opin-
ion of your excellency's sound judgment that I still permit myself to
hope that it will bring about a reconsideration of your decision or a
suggestion to my Government of some other means of doing Colom-
bia justice in a manner compatible with her honor.
" I see from the second paragraph of your excellency's note of the
9th instant that the American Government does not and can not con-
sider as a declaration of war on the part of Colombia the fact that the
army of my country should enter Colombian territory, as is that of
Panama, for the purpose of subduing the rebellion. This makes me
confident that there will be no conflict between the Colombian and
American forces when the former take the field on the Isthmus. And
I have to point out here that, contrary to the statement made in offi-
cial documents, Panama never was independent or belonged to any
nation other than Colombia since the latter gained her independence.
All of the royal letters patent issued from 1533 to 1803 incorporated
the provinces of Darien, Portobelo, and Veragues, wliich embraced
the whole territory of the Isthmus, into the viceroyalty of the new
kingdom of Granada. The declaration of 1821, made by those prov-
inces when New Granada had already cleared the country of the
enemy that held the former viceroyalty under its yoke, was nothing
more, in fact, tlian the sanction of the uti possidetis of 1810, the main
foundation of tlie rights of aU Spanish-American countries.
" I profoundly regret, on the failure of the mission which was
intrusted to me, that my well-meant efforts to reach a fair and honor-
able settlement with your excellency's Government have thus far been
in vain, and compelled, as I am thereby, to depart, I once more con-
firm the contents of my previous notes and, in the name of Colombia,
enter a solemn protest against the denial of justice inflicted on my
country by one of the most powerful governments in the world,
§344.] REPUBLIC OF PANAMA. 113
bound by its very power to be equitable, and put on your excel-
lency's Government the responsibility for all evils to come.
''Being unable, under existing circumstances, to take personal leave
of the most excellent President and of your excellency, I beg you will
accept this excuse and the expression of my thanks for the personal
attentions I have received at the hands of all the members of the
Administration. "
Gen. Reyes, special minister of Colombia, to Mr. Hay, Sec. of State, Jan. 11, 1904,
For. Rcl. 1903, 311-313.
"I have the honor to acknowledge receipt of your
Mr. Hay's note of -n , • i.* /? j.i i tj.i r t
excellency s communication oi the 11th oi January,
1904, in which you ask that this Government shall
reconsider its decision in regard to the submission of the claims of
Colombia to the arbitration of The Hague, or, as an alternative to this
you invite a suggestion to your Government of some other means of
doing Colombia justice in a manner compatible with her honor.
" In reply I beg to inform you that this Government sees no reason
to reconsider its attitude in these matters, which has been adopted
after mature deliberation and reflection.
" Referring to your communication above mentioned, and also to
the conversation which I had the honor to hold with your excel-
lency on the same day, I am now instructed by the President to make
the following suggestion. " This Government is now, as it always has
been, and as I have frequently had the honor to inform your excel-
lency, most desirous to lend its good offices for the establishment of
friendly relations between the Republic of Colombia and that of Pan-
ama. We think that they might be exercised with a hope of a favor-
able result if Colombia, as may be inferred from our interchange of
views, should consider that the conditions necessary to its recognition
of the existing state of things are :
" First. To submit to a plebiscite the question whether the people
of the Isthmus prefer allegiance to the Republic of Panama or to the
Republic of Colombia.
" Second. To submit to a special court of arbitration the settle-
ment of those claims of a material order which either Colombia or
Panama by mutual agreement may reasonably bring forward against
the other, as a consequence of facts preceding or following the decla-
ration of independence of Panama."
Mr. Hay, Sec. of State, to Gen. Reyes, special minister of Colombia, Jan. 13, 1904,
For. Rel. 1905, 313-314.
H. Doc. 551— vol 3 8
114 INTEROCEANIC COMMUNICATIONS. [§§345,340.
(2) PASSPORTS.
§345.
With reference to complaints that the consul of New Granada at
New York required citizens of the United States embarking for the
Isthmus to obtain passports from him, tlie Department of State said
tliat, allliough, according to the letter of the treaty of 1840, if citizens
of New Granada who were about to return home were by the laws of
that Republic required to obtain passports from the New Granadian
consul at the port of embarkation. United States citizens might be
expected to pursue the same course, yet, when the motives of the two
governments in entering into the stipulations concerning the Isthmus
were considered, the requirement referred to "would seem to be
adverse to the spirit of the instrument. " ' ' The exaction of passports
from travelers in time of peace is," affirmed the Department, "a
restriction upon personal freedom scarcely compatible with repub-
lican institutions." It was difficult for citizens of the United States
"to understand the necessity for its adoption in New Granada," and,
being aware of the weighty obligations of their Government with
regard to the Isthmus, it was "particularly repugnant to their feel-
ings to apply for passports across it to consuls of New Granada."
This sentiment "might be mitigated if such passports were gratui-
tously furnished," as were those of the Department; but, as the con-
trary was the case, the practice of requiring them would give rise to
acts which the United States could not prevent and which it would
seem impolitic for New Granada to provoke without a clear necessitj'^
therefor. . The existing good feeling in the United States toward New
Granada should be preserved and strengthened ; and the New Grana-
dian Government therefore should be informed "that the practice of
requiring New Granadian passports for our citizens crossing the
Isthmus will be certain to impair this sentiment, especially if a fee is
required for them, and that this Government expects, in view of the
advantages which New Granada has obtained by the treaty, that the
practice will be discontinued."
Mr. Clayton, Sec. of State, to Mr. Foote. min. to Colombia, April 13, 1850,
MS. Inst. Colombia, XV. 143; Mr. Clayton, Sec. of State, to Messrs.
Livingston, Wells & Co., April 13, 1850, 37 MS. Dom. Let. 504,
See, infra, g 357, as to treaty of 18G7 with Nicaragua.
(3) TRANSIT OF THE MAILS.
§ 346.
A postal convention, with special reference to the transit of the
Isthmus, was concluded between tlio United States and New Granada,
March G, 1844. Correspondence subsequently took place with refer-
§346.] ISTHMUS OF PANAMA: TRANSIT OF MAILS, 115
ence to arrangements for the carriage of the mails and tlie payment of
postage.''
Tlie convention required payment for the transportation of the
United States mails to be made in dollars, but no standard dollar was
mentioned. The United States maintained that the convention was
complied with by the tender of a standard dollar of Spain or Mexico,
containing eight reals, instead of a New Granadian dollar, estimated
at ten reals.*
It was stated in 1860 that it could not be ascertained from the rec-
ords of the Department of State that the convention had been termi-
nated by notice pursuant to the stipulations of its 9tli article.'' In 1876
it was stated that, as it was not in terms abrogated by Art. XXXV. of
the treaty of 1846, and as no notice of termination appeared to have been
given, it might be regarded "as technically in full force," but that it
might, nevertheless, be "allowed to have been practically abrogated
by the treaty of 1846, followed as this instrument soon was by the
acquisition of California by the United States;" and, "as a proof of
the obsolete character" of the convention, it was remarked that it
provided for the carriage of the United States mails in men of war to
Chagres or Porto Bello.*^
By the charter of the Panama Railroad Company, the company
possessed the right to transport mails across the Isthmus and to
receive pay for the service; and by a decree of May 31, 1851, the
Government of New Granada vested in the company all right and
control over the subject. For the exercise of the privilege, the com-
pany agreed to pay the State of Panama 5 per cent, on the compensa-
tion it should receive for the transportation of foreign mails. By an
agreement with the United States, the company received 22 cents a
pound for the transportation of the American mails across the Isth-
mus. The aggregate amount paid to the company under this arrange-
ment in 1855 was about 1125,000. April 25, 1856, the New Granadian
Congress j)assed an act imposing, for the privilege thus liberally paid
for through the company, "the enormous sum of '^=3.20 for every pound
of mail matter which may pass the Isthmus witliin her territory."
The amount which would thus be exacted was estimated at from
$300,000 to $2,000,000 per annum. The United States protested against
the measure, on the ground that it could not be applied to the United
States mails "without a violation of the existing treaty between the
"Mr. Clayton, Sec. of State, to Gen. Herran. Coloinhian min.. June 80. Jnly 18,
1849; to Mr. Rivas, Colombian min., Jan. 29, March 20. May 15, 1850: MS. Notes
to Colombia. VI. 10, 12. 15, 18, 19.
''Mr. Clayton, Sec. of State, to Mr. Foote, min. to Colombia, June 15, 1850, MS.
Inst. Colombia, XV. 145.
cMr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Nov. 12, 1866,
MS. Inst. Colombia, XVI. 207.
'^Mr. Fish, Sec. of State, to Mr, Scruggs, min. to Colombia, June .3, 1876, MS.
Inst. Colombia, XVII. 21.
116 INTEROCEANIC COMMUNICATIONS. [§347.
United Stato« and Now Granada, and without an infringoment of tlie
chartered rights of the Panama Itailroad Company," and added:
"Were there no treaty stipulations on tlie subject, an attempt to
enforce this decree against the United Stiites could not be viewed
otherwise than an unfriendly act on the part of New Granada, and
would be resisted as a wrong; but the treaty with New Granada is
regarded as a barrier agaiustsuchanattemptand will justify effective
resistance to it."
Mr. Marcy, Sec, of State, to Mr. Bowlin, min. to Colombia, Jnly 3. 1856, MS.
Inst. Colombia, XV. 220. See, also, same to same, confidential, Jnly 3,
1856, id. 227; and Mr. Marcy to Mr. Hoadley, Pres. Panama R. R. Co.,
June 17, 1856, 45 MS. Dom. Let. 336.
In case an attempt should be made to apply the decree to the United States
mails, the United States consul at Aspinwall was instructed to ''protest
in the most solemn and emphatic manner against it and warn them [the
New Granadian authorities] of the serious consequences which must
inevitably follow." (Mr. Marcy, Sec. of State, to Mr. Fletcher, consul
at Aspinwall, Sept. 3, 1856, 20 MS. Desp. to Consuls, 396.)
See, also, Mr. Marcy, Sec. of State, to Gen. Herran. Colombian min.. Dec.
22, 1856, MS. Notes to Colombia, VI. 57; President Pierce, annual mes-
sage, Dec. 2, 1856; Mr. Cass. Sec. of State, to Gen. Herran, Sept. 10,
1857, MS. Notes to Colombia. VI. 71.
See the forcible statement of the subject in Mr. Cass, Sec. of State, to Mr.
Jones, min. to Colombia, April 30, 1859, MS. Inst. Colombia, XV. 268.
(4) TAXATION AND COMMERCIAL REGULATIONS.
§ 347.
By a law of May 25, 1835, the privileges of f«ree ports were granted
by the Colombian Government to the districts of Panama and Porto
Bello, for the term of 20 years. By a law of June 2, 1849, however,
customs duties on the Isthmus were abolished indefinitely. National
duties were thus done away with on the Isthmus, and the imposition
of taxes was confined to the State of Panama, which, during and after
1850, levied direct taxes in the shape of a monthly "commercial
contribution."
For. Rel. 1885, 227; Mr. Cass, Sec. of State, to Mr. Jones, min. to Colombia,
April 30, 1859, MS. Inst. Colombia, XV. 268.
" No taxes should l>epaid by citizens of the United States in Colombia which
are not made to apply et^ually to Colombian citizens and to the citizens
or subjects of all other nations." (Mr. Seward, Sec. of State, to Mr.
Burton, min. to Colombia, Feb. 10, 1865, MS. Inst. Colombia, XVI.
126.)
The President of Colombia having dissolved the national congress and pro-
claimed the existence of a state of civil war, it was reported that the
authorities of the State of Panama were levying extraordinary taxes on
"the citizens of that State, including all domiciled United States citi-
zens," with a view to use the procreeds in carrying on war against the
federal government. Although citizens of the Unit<;'d States enjoyed in
Colombia '" no lawful exemption from ordinary and equal taxes," it was
§347.] ISTHMUS OF PANAMA: COMMERCIAL REGULATIONS. 117
said to be by no means clear that they could be ' ' legally or j ustly sub-
jected to the payment of extraordinary taxes or contributions to the
Government of a State for the purpose of resisting and, as it would now
seem, absolutely overthrowing the federal union of Colombia, to which
Government the United States are bound to guarantee a constitutional
control, regulated by treaty with the United States, of the international
railroad transit across the Isthmus of Panama." The situation, how-
ever, was declared to be imperfectly understood, and. for the time being,
it was said that citizens of the United States might decline to i)ay the
taxes and conti'ibutions above referred to, except under protest. (Mr.
Seward, Sec. of State, to Mr. Sullivan, niin. to Colombia. J\ine 18, 18(57,
MS. Inst. Colombia, XVI. 221.)
For a circular issued by the Colombian consulate general at New York,
Aug. 7. 1871, in relation to the dispatch of vessels to the free ports of
Colombia, see Mr. Abert to Mr. Fish, Sec. of State. Aug. 17, 1871, MS.
Misc. Let.
The Colombian Government having appointed an inspector at
Aspinwall [Colon], who required all vessels desiring to trade on the
Atlantic coast of Panama, first to visit that port and obtain a license
and an approval of their manifests of cargo, for which a fee of $5 was
exacted, the United States commercial agent at Asi)inwall advised
masters of American vessels to refuse to comply with the require-
ment. The reason given for the measure was the necessit}' at the
time of inspecting manifests, so as to prevent the carrying of contra-
band to the insurgents at Antioquia. The action of the commercial
agent was not approved, the Department of State observing that Art.
XXXV. of the treaty of 184(5 did not include "the riglit of unrestricted
trade between the Atlantic ports of the State of Panama."
Mr. Fish, Sec. of State, to Mr. Thorington, com. agent at Aspinwall, Jan.
24, 1877, 84 MS. Desp. to Consuls, 6;}r).
In 187(i a correspondence took place at I>ogota, between the diplo-
matic representatives of the United States, France, Germany, and
Great Britain, and the Colombian minister of foreign affairs, with
respect to the custody of the pai)ers of foreign vessels entering tlie
free ports of Colon and Panama. The correspondence grew out of
the enactment of tlie Colombian statute, Xo. (iO, of 1875, whicli (ai'ls.
3 and 5) required such vessels to deliver their registers to Colombian
officials. By a note of Seiior Ancizar, Colombian ministei- of foreign
affairs, of July 27, 1876, tlie conflict of tlie statute with the treaty
obligations of Colombia in regard to the freedom of the ports of Colon
and Panama and the Isthniian transit was recognized ; and it was agreed
that, until the law should be modified b}' the Colombian Congress, 1 lu^
registers of foreign vessels should be deposited with their respective
consuls or, in case of absence, with the consul of a friendly power-.
Mr. F. W. Seward, Act. Sec. of State, to Mr. Dichman. min. to Colombia,
Aug. 23, 1878, MS. Inst. Colombia, XVII. 4:}. This instruction particu-
larly refers to the case of the American schooner Loriue, and the alleged
arbitrary action of the Colombian authorities with regard to her.
118 INTEROCEANIC COMMUNICATIONS. [§ '^47.
Subseciuently, the Department of State expressed rej^ret that, in si)ite of the
diploinatic agreement of 187(5, the execution of the law of 1875 was
"likely to be persevered in." (Mr. Evarts, Sec. of State, to Mr. Dich-
man, min. to Colombia, Feb. 4, 1879, MS. Inst. Colombia. XVII. 71.)
As to the conclusion of a protocol providing for the deposit of ships' pai)ers
with the consuls, whereupon the law of 1875, though it remained unre-
pealed, was regarded by the Colombian Government as a dead letter,
see Mr. Evarts, Sec. of StJite, to Messrs. Shipman, Barlow, Larocque &
Macfarlarid, June 14. 1879, 128 MS. Dom. Let. 449.
"This Govern nient is of the opinion that the position of the free
ports of Panama and Colon as mere stations on one of the world's
most important highways should demand a simpler and less rijjid
enforcement of customs rules against the vehicles of mere transient
passage than may be requisite to protect the fiscal interests at ports
of entry. It is deemed that the mutual concessions and guarantees
under which the transit was established entitle all those who honestly
and pacifically use it to exceptional facilities, which may not be
needed, or be even proper at other ports. It \70uld be very much to
be regretted if a contrar^'^ course should prevail in conflict with the
true interests of Colombia herself, no less than of those who avail
themselves of the i^rivileges incidental to the transit."
Mr. Frelinghuysen, Sec. of State, to Mr. Scruggs, Mar. 6, 1883, MS. Inst.
Colombia, XVII. 329.
Sept. 25,1885, the Colombian Government issued a decree, in exe-
cution of law 53 of 1884, establishing on Dec. 1, 1885, custom houses
at Panama and Colon, and imposing on importations into the Republic
the same customs duties as at other ports, less 40 per cent. It was
also announced that the same customs regulations would be enforced
at Colon and Panama as at other ports. The United States, while
observing that the guarantee of Art. XXXV. of the treaty of 1840 was
"limited to equal treatment of American goods with those of native
Colombians or of the most favored nation, with an exemption from
customs duties in the case of merchandise, etc., passing over tlie
transit to countries beyond," and did not impose on Colombia a
"treaty obligation to make Colon and Panama free ports," said that
the "whole tenor" of the article was that nothing should be allowed
"to hinder the free transit of persons and goods passing over the
Isthmus, from ocean to ocean, to countries beyond," and that " should
the collection of duties on imports into Colombia at Aspinwall [Colon]
and Panama be enforced in such a way as to hamper the stii)ulaLcd
free transit this Government would feel bound to complain."
Mr. Bayard, Sec. of State, to Mr. Jacob, min. to Colombia, Nov. 3. 1885. For.
Rel. 1885, 223; Mr. Porter, Assist. Sec. of State, to Messrs. Lazarus &
Co., Oct. 31, 1885, id. 229. See, also, For. Rel. 1885, 226-228.
§347.] ISTHMUS OF PANAMA: COMMERCIAL REGULATIONS. 119
Aug. 27, 1855, the legislative assembly of the State of Paiiama
passed an act imposing a tax of 20 cents a ton on
steamers and 40 cents a ton on sailing vessels resort-
ing to the ports of Colon and Panama. Bj^ a decree of the executive
of Panama, British mail steamers were exempted from these duties.
Under the circumstances, the Department of State, in a note to the
Colombian minister at Washington, Oct. 23, 1855, protested against
the duties, both as a violation of Art. XXXV. of the treaty of 1846,
guaranteeing a free transit across the Isthmus, and as a violation of
Art. VI., i>rohibiting discriminating duties.
Meanwhile, the Executive Power of New Granada, b}^ a resolution
of October 14 (or Oct. 11), 1855, passed with the unanimous consent
of the council, declared that the law of the State of Panama (Aug. 27,
1855) was inapplicable to the ports of Colon and Panama. Informa-
tion of this action of the national authorities was conveyed to the
Department of State by General Ilerran, the Colombian minister at
Washington, Oct. 20, 1855, and was received by the Department with
"great gratification." A similar expression of satisfaction was made
to Mr. Bowlin, United States minister at Bogota, who had, in the
absence of instructions, exerted himself to secure the adjustment of
the question with the Government of New Granada.
Mr. Marcy, Sec. of State, to Gen. Herran, Colombian min., Oct. 23, 1855,
MS. Notes to Colombia, VI. 50; same to same, Nov. 17, 1855, id. 52; Mr.
Marcy to Mr. Bowlin, Dec. 17, 1855, MS. Inst. Colombia, XV. 210; Mr.
Marcy to Gen. Herran, Dec. 23, 1856, MS. Notes to Colombia, VI. 57.
Although the National Executive, in overruling the action of the
State of Panama, pronounced it to be antagonistic to "considerations
of justice and good faith," a bill was afterwards introduced into the
National Congress and was reported to have been passed to enforce
the collection of the tonnage tax under national authority. The
United States protested against this measure on the ground (1) that
it was contrary to the clear import of the treaty of 1846; (2) that it
was contrary to the solemn iiledge given not only to the railroad com-
pany but to the whole world that vessels resorting to the ports of
Colon and Panama, in connection with any road across the Isthmus,
should be exempt from tonnage duties; (3) that it was a palpable
violation of the rights of citizens of the United States who had
embarked their cai)ital in the railroad, and, besides constituting a
breach of contract with the company, was injurious to the commerce
of the United States. In view of the "strong features" of the case,
the United States decided " to resist the collection of the tonnage tax
on American vessels resorting to the harbors of Aspinwall and
Panama, with freight or passengers for the railroad." At the same
time the hope was expressed that the Congress of New Granada would
repeal " their obnoxious law relative to tonnage as well as the equally'
obnoxious and still more extortionate law in respect to foreign mails."
120 INTEKOCEANIC COMMUNICATIONS. [§ 347.
Mr. Marcy, Sec. of State, to Mr. Bowlin, min. to Colombia, Dec. 31, 1856,
MS. Inst. Colombia, XV. 246.
See, also, Mr. Thomas, Assist. Sec. of State, to Mr. Corwine, consul at
Panama, Jan. 3, 1857, 20 Desp. to Consuls, 438; Mr. Cass, Sec. of State,
to Mr. Dallas, min. to England, April 21 , 1857, MS. Inst. Qr. Br. XVII.
72. Mr. Dallas was instructed to explain the demands of the United
States to Lord Clarendon, should the latter refer to the subject in
conversation.
June 27, 1857, the Congress of New Granada passed an act "recog-
nizing the validity of the tonnage tax . . . , renewing it in fact,
and directing the application of the proceeds to certain specified
objects as a subsisting source of revenue." With reference to this
statute, the Department of State said: "The decided opposition of
this Government to the imposition of these taxes has been cpmmuni-
cated to the Government of New Granada, and in addition it has like-
wise been made known that the attempt to collect a tonnage tax or a
correspondence tax would be resisted bj'^ the United States. This
determination was adopted and avowed by the late administration,
and the President on full consideration concurs in its decision."
Mr. Cass, Sec. of State, to Gen. Herran, Colombian min., Sept. 10, 1857,
MS. Notes to Colombia, VI. 71.
This determination was again expressed, with reference to a report that a
bill had passed the Colombian House of Representatives and was pend-
ing before the Senate to repeal the act of 1835, ''which pledged an
exemption from all tonnage duties in the cantons of Porto Bello and
Panama, a pledge offered to the world in order to draw foreign capital
and enterprise to the construction of a canal or railroad, and which was
to continue in force for the term, of twenty years from the opening of
such route." It was understood that the passage of the bill would be
followed by the imposition of the tonnage tax. (Mr. Cass, Sec. of State,
to Gen. Herran, Colombian min., June 4, 1858, MS. Notes to Colombia,
VI. 77.)
See, particularly, the full and able argument on the subject of the tonnage
tax in Mr. Cass, Sec. of State, to Mr. Jones, min. to Colombia, April 30,
1859, MS. Inst. Colombia, XV. 268, with a list of previous diplomatic
papers on the subject.
The preceding position of the United States is impliedly approved in Mr.
Black, Sec. of State, to Mr. Jones, Feb. 8, 1861, MS. Inst. Colombia,
XV. 314.
See, also, Mr. Seward, Sec. of State, to Mr. Vanderbilt, Pres., Atlantic &
Pacific S. S. Co., June 12, 1861, referring to a decision of the Supreme
Court of New Granada, adverse to the grounds assumed by the com-
pany "in relation to the illegality of the law of Panama of 19th Sep-
tember, 1857, concerning taxes." (54 MS. Dom. Let. 173.)
*'I do not feel called upon to discuss at length the subject of the
commercial tax levied by the State of Panama, as referred to in your
No. 13, of the 27th December last, for, since the receipt of that com-
munication, I have examined the instructions of my predecessors Sec-
retaries Cass and Marcy, and I find no reason for reversing the policy
§347.] ISTHMUS OF PANAMA : COMMERCIAL REGULATIONS. 121
SO distinctly assumed and so forcibly maintained by them, in reference
to the tonnage and other taxes imposed upon American commerce at
the Isthmus of Panama. The ' commercial tax,' as it is called, appears
to be a mere technical evasion of an objectionable nomenclature, but
this unworthy evasion does not change the fact that the exaction falls
upon those interests which alike by treaty stipulations and formal
contract have been exempted from such impositions.
"In 1856 the naval officer in command of our Pacific squadron
received orders to resist by force, if necessary, the collection of the
tonnage taxes which this Government declared to be illegal. I refer
you to Mr. Marcy's No. 29 of 31 December, 1856, to Mr. Bowlin, upon
this point. I will send your No. 13 with its accompaniments and with
a copy of this instruction to the Navy Department, witli a request that,
if a renewal of the orders of 1856 be requisite, in view of the lapse of
time and change in the personnel of officers in command, such meas-
ures may be taken as will secure the protection of the interests of our
citizens on the isthmus, to which they are entitled under the solemn
guaranties of the government of New Granada."
Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Feb. 27, 1863,
MS. Inst. Colombia. XVI. 30.
See, also, Mr. Seward, Sec. of State, to Mr. Corwine, Jan. 17, 1863, 56 MS.
Dom. Let. 215.
" A tax has been levied, called a commercial tax, the object and intent of
which is to require a bonus for doing commercial business in the State
of Panama. This tax by some unusual and illegitimate construction
has been made to apply to the Pacific Mail Steamship Co.. the Panama
Railroad Co., U. S. Mail Steamers, Vanderbilt &c. The P. M. S. S. Co.
have paid it imder protest. Mr. Nelson, agent for the P. R. R. Co., &
U. S. Mail Steamers, has also paid it under protest. I learned from the
British consul a few days ago that the governor of Panama had informed
him that he would not enforce its execution. I have no official advice
from the governor on the subject; but expect to learn his views and
intentions at an early day. I have advised those interested not to pay
another dollar, until the question is settled by our Government." (Mr.
McKee, U. S. consul at Panama, to Mr. Burton, U. S. min. at Bogota,
April 31, 1863. enclosed with Mr. Barton's No. 34. July 11, 1863.)
" You will instruct the consuls of the United States Avithin your jurisdic-
tion to advise the parties interested not to pay the ' commercial tax '
which is being attempted to be collected from them under the Panama
law of August 39, 1855. and in such cases as they have already paid it
under protest, to make reclamation therefor."" (Mr. Seward. Sec. of
State, to Mr. Burton, min. to Colombia. Aug. 38. 1863, MS. Inst. Colom-
bia. XVI. 43.)
" Having examined the subject referred to in your No. 95, in connection
with your previous despatch No. 13, upon the same (piestion. I am sat-
isfied that the views which you originally expressed ai-e correct: tliat
the ' commercial contribution " levied by the State of Panama is only
the substitution, under a different name, of an impost whicli this Gov-
ernment has imiformly held to ]>e Tinconstitutional and illegal, under
the public guarantees of the Republic of New Granada, and that fi)r all
suqh exactions paid under protest, this Government reserves the right
122 INTEROCEANIC COMMUNICATIONS. [§ 347.
of future reclamation. "With the State of Panama as an integral part of
the Colombian Repiiblic we have nothing to do. It rests with the Gov-
ernment of Colombia to enforce in the States under its jurisdiction
respect to the plighted faith of the supreme authority." (Mr. Seward,
Sec. of State, to Mr. Burton, min. to Colombia, April 9, 1864, MS. Inst.
Colombia, XVI. 93.)
"After diligent inquiry I cannot learn that any unjust or unequal taxes
have been recently levied, and certainly no complaint of any has been
made to me. ' ' (Commander G. H. Preble, U. S. N. , to Mr. Burton, min.
at Bogota, July 15, 1865, enclosed by Mr. Burton with his No. 190, Aug.
11, 1865, MS. Desp. from Colombia.)
"I have to acknowledge the receipt of your despatches, Nos. 125
and 126, — dated, respectively, October 17th and 22d last, with their
enclosures, — the first of which relates to the protests of the Pacific
Mail Steamship Company against the payment of the ' Commercial
Tax ' imposed by the State of Panama on that company, and, the sec-
ond, to the demand made by a Colombian official at Aspinwall, for
the payment of the same tax,. by all vessels of the United States dis-
charging freights at that port.
"The subject will receive the early consideration of this Depart-
ment, and your proceedings in that connection were quite proper and
meet my approbation."
Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Jan. 10, 1865,
MS. Inst. Colombia, XVI. 116.
With his No. 125, referred to by Mr. Seward, Mr. Burton enclosed copies,
received from Mr. McKee, United States consul at Panama, of the pro-
tests entered in the consulate by agents of the Pacific Mail S. S. Co. ,
from Oct. 19, 1859, to May 14, 1862, against the payment of the " com-
mercial contribution," as well as copies of certain receipts on which no
protests were entered. (MSS. Dept. of State, Desp. from Colombia.)
With his No. 126, also referred to by Mr. Seward, Mr. Burton enclosed a
correspondence in relation to a demand for payment of tonnage taxes
by vessels discharging freight at Colon. This demand was made under
art. 123 of the Colombian Custom House Law of May 9, 1864. Mr. Bur-
ton reported that the Colombian Minister of Foreign Relations had in
a private interview informed him that it was not the intention of the
Colombian Government to insist on the collection of the duty, the min-
ister in this relation refeiring to an executive decree of Aug. 18, 1864,
suspending the operation of art. 123 as to the free ports of the Republic.
(MSS. Desp. from Colombia.)
See, also, Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Feb.
10, 1865, MS. Inst. Colombia. XVI. 126; and Nov. 12, 1866, id. 207.
Approval was expressed of the action of Rear Admiral Thatcher, in direct-
ing the commanding naval officer at Panama, incase an attempt should
be made by the Colombian Government, after making a respectful remon-
strance to the authorities of the Isthmus, to resist the collection of the
tonnage tax by force if necessary, consulting at the same time the
United States consul at Panama. It was stated, however, that there
was "reason to believe that the Colombian Government will not per-
sist in the measure which would necessitate the extreme proceedings
contemplated." (Mr. Seward, Sec. of State, to Mr. Welles, Sec. of
Navy, Feb. 10, 1867, 75 MS. Dom. Let. 235.)
§347.] ISTHMUS OF PANAMA: CAPITATION TAX. 123
"It has been intimated to the Department from a source likely to
be well informed, that the New Granadian Govern-
api a ion x. jj^^j^^ jj^^g ij^posed a capitation tax of two dollars on
all persons embarking at Panama for California. It is hoped however,
that the information may not be correct. If, upon inquiry, you should
ascertain that it is, you will remonstrate against it in terms which will
leave no doubt that this government considers it adverse to the spirit,
at least, of the treaty of the 12th of December, 1846. It is true that
citizens of the United States are by that treaty placed upon the same
footing only as citizens of New Granada in regard to the transit of
the Isthmus of Panama, but, inasmuch as the numbers of our citi-
zens who cross that Isthmus for the purpose of proceeding to Cali-
fornia greatly exceeds those of New Granada, while the tax would
bear lightly upon the New Granadians it would be onerous to citizens
of the United States and incompatible with that freedom of transit
which it was the intention of the treaty to secure to us as an equiva-
lent for our guaranty of the neutrality of the isthmus. You will
accordingly intimate that it is the exj)ectation of this government
that the tax referred to or any other in contravention of the .spirit of
the treaty will be discontinued. The New Granadian Government
has certainl}^ derived and will continue to enjoj^ sufficient benefits,
both directly and indirectlj^ from the trade and intercourse between
our Atlantic coast and California by the way of the Isthmus, to dis-
pense with a tax of the character referred to even if there were no
treaty. You may assure them, however, that if, under existing cir-
cumstances, the tax shall be exacted, it will lead to great irritation in
this countr3\"
Mr. Clayton, Sec. of State, to Mr. Foote, min. to Colombia, Jan. 9, 1850,
MS. Inst. Colombia, XV. 139.
See, in this relation, Mr. Everett, Sec. of State, to Mr. Conrad, Sec. of War,
Nov. 18, 1852, 41 MS. Dom. Let. 93.
The tax above referred to was imposed under an ordinance passed Nov. 6,
1849, by the legislative assembly of the State of Panama. The ordinance
took efect Jan. 1, 1850. It imiiosed a tax of $2 per capita on all ijas-
sengers embarking or disembarking in that State. In reply to the pro-
test made through Mr. Foote, the New Granadian minister of foreign
affairs declared that the national Government could not interfere to
prevent the execution of the law by the State authorities. Under it,
the Pacific Mail S. S. Co. paid to the State of Panama, in 1850-1858,
about ,$122,000, each payment being made under protest. (Mr. Cass.
Sec. of State, to Mr. Jones, min. to Colombia, April 30. 1859, MS. Inst.
Colombia, XV. 2G8.)
The Pacific Mail S. S. Co. presented a claim for reimbursement to the mixed
commission iinder the claims conventioTi between the United States and
New Granada of Feb. 10. 1857. which was extended by the convention
of Feb. 10, 1864. The claim was referred to the umpire. Sir Frederick
Bruce, who observed in his decision that "a large portion" of the
amount " was recovered by the company from the ])assei]gers." As to
the legal aspects of the case, he said that the company did not ai)pear
124 INTEROCEANIC COMMUNICATIONS. [§ 347.
to have taken any steps to test the validity of the law, and that the
failure to take such steps before the Colombian tribunals constituted a
serious objection to the claim. As to the allegation of the claimant
that the tax was a violation of Art. XXXV. of the treaty of 1846, Sir
Frederick declared that " the tax, if a violation of the treaty at all, is a
violation of the spirit and not of the letter of that instrument."' He
also stated that it did not appear that the United States " addressed any
representations to the siiprenie government at Bogota denouncing the
proceeding as a violation of the trejity." He therefore rejected the
claim, without prejudice to the rights of the claimant, should the
United States decide to make a demand for redress. In the course of
his opinion he remarked that the Supreme Court of New Granada, in
afterwards deciding a similar law to be invalid, put its decision on con-
stitutional and not on treaty grounds. (Moore, Int. Arbitrations, II.
1413-1415.)
The opinion was incorrect in saying that the United States had not com-
plained to New Granada that the tax was a violation of the treaty.
(Mr. Seward, Sec. of State, to Mr. Stanbery, At. Gen., Nov. 14, 1866,
74 MS. Dom. Let. 883.)
Attorney General Akerman, in 1871, advised that the tax, being actually,
though not ostensibly, levelled at citizens of the United States, defeated
the plain intent of the treaty. (13 Op. 547.)
"Unfortunately for the claimants, however, it [the opinion of Attorney
General Akerman] omits all notice of the principal point, which is
whether it would be proper for this government, in view of the strin-
gent terms of the 5th article [of the convention of Feb. 10, 1857] , to
demand of Colombia payment of a claim which had been rejected by
the arbiter under the convention. It is true that Sir Frederick Bruce
declared that his decision was not to jirejudice the rights of the claim-
ants. This declaration, however, must be regarded as extrajudicial
and as not imposing liability on Colombia. Under these circumstances
it is deemed advisable at least to defer a presentation of the case anew
to that government." (Mr. Fish, Sec. of State, to Mr. Cox, M. C,
March 14, 1873, 93 MS. Dom. Let. 139.)
By an act of the provincial assembly of Panama of Nov. 17, 1853,
superseding the ordinance above mentioned, a tax of 10 per cent, was
levied on the profits on each passenger arriving at or departing from
tlie coast at either side, and the sum of $10 was assumed as the
"unalterable basis" of such profits.
The United States protested against this tax on the following
grounds :
1. That, although New Granadians were nominally liable to it, it
constituted practically a discriminating tax on foreign vessels, and
especially upon vessels of the United States; that, according to the
United States consul at Panama, the tax of 1849 was not in fact col-
lected from New (xranadian citizens; that there was no New Gra-
nadian vessel carrying passengers sailing to or from Panama; that the
burden of the impost under consideration fell practically upon citi-
izens of the United States, thougli the guarantee of neutrality was
given to exempt them from "such partial and oppressive exactions."
§347.] ISTHMUS OF PANAMA: CAPITATION TAX. 125
2. That the tax violated the stipulation for a "free " transit, besides
arbitrarily assuming a certain standard of profit.
3. That it was opposed to what had been the well understood policy
of New Granada, as shown by art. 34 of the charter gi-anted to the
Panama Railroad Company, May 29, 1850, which guaranteed that
passengers, merchandise, and effects of every kind, transported across
the Isthmus from ocean to ocean by the railroad, should be exempt
from taxes and imposts, whether national, provincial, municipal or
of any other species.
Mr. Marcy, Sec. of State, to Mr. Green, Feb. 16, 1854, MS. Inst.. Colombia,
XV. 177.
April 4, 1854, Mr. Green wrote that the New Granadian minister of foreign
relations had ' ' expressed it as the fixed determination of the Govern-
ment to remove every impediment to the full enjoyment of the rights
of transit across the Isthmus, according to concessions heretofore made;
and that this passenger tax should not be enforced because of its con-
flict with these resolutions."' (Mr. Cass, Sec. of State, to Mr. Jones,
min. to Colombia, April 30, 1859, MS. Inst. Colombia, XV. 268.) ^
Oct. 2G, 1854, the provincial assembly of Panama by a new law re-
stored the more profitable tax of $2 per capita on passengers embark-
ing in the Bay of Panama. The Supreme Court of New Granada,
April 23, 1855, however, on motion of the Attorney-General, declared
the provincial laws of Nov. 17, 1853, and Oct. 26, 1854, to be null and
void, as unconstitutional.
Mr. Marcy. Sec. of State, to Mr. Bowlin, min. to Colombia. Feb. 3, 1855. MS.
Inst. Colombia. XV. 199; Mr. Hunter.. Act. Sec. of State, to Mr. Bowlin,
July 31, 1855, id. 205 ; Mr. Marcy to Mr. Bowlin, Aug. 31, 1855, id. 207.
In the instruction last mentioned, Mr. Marcy, referring to the report that
the authorities of the State of Panama would, in spite of the decision
of the Supreme Court, renew the tax. intimated that the United States
would if necessary station a vessel of war at Colon and Panama to protect
American citizens and vessels from the exaction.
" If the exaction should be made of your captains and agents, it might, in
the first instance, be resisted, if there should be any means for .iudi-
cially testing its legality. The Department does not feel justified, how-
ever, either in directing the i)ayment of the tax, or in advising a per-
emptory disregard to the local law imjiosing it. But if there should
be no means of testing the legality of the tax before the tiibunals (as is
suggested above), the payment, if made by the officers or agents of the
company, should \ie accompanied in each case by a formal protest, until
the re.sult of an application on the subject which the United States min-
ister at Bogota has been instructed to make to the Government of New
Granada shall be known, or other measures shall be adopted by this
Government."' (Mr. Marcy, Sec. of State, to Mr. Roberts, Pres. U. S.
Mails. S. Co., N. Y., Sept. 8, 1855. 44 MS. Dom. Let. 299.)
See, in the same sense, Mr. Marcy, Sec. of State, to Mr. Davidge, Pres. Pac.
MailS.S.Co., Aug. 7. and Aug. 28, 1856, 45 MS. Dom. Let. 432,480.
See, also, Mr. Marcy to Mr. Davidge, Jan. 20, 1S57, 46 MS. Dom. Let. 256.
See Mr. Cass, Sec. of State, to Gen. Herran. Colombian min.. Sept. 10, 1857,
MS. Notes to Colombia, VI. 71.
126 INTEROCEANIC COMMUNICATIONS. [§ 348.
Aa to the question of the laying of taxes under the constitution of Colom-
bia, the following may be noticed:
" Your dispatcli of September 12th, No. 50, has been received.
*' The view of the so-called Bolivar tax which you have presented is
approved. It is not doubted that under the constitution of New Granada
of 1858 the General or Federal Government alone has authority to levy
duties on importations under its power to regulate foreign commerce.
Nor does it seem doubtful that the United States having commercial
relations with New Granada regulated by treaty may rightfully com-
plain of any proceedings which affect their commerce in violation of
the national constitution of New Granada, even though the wrong be
committed under the alleged authority of one of the United States which
constitute the national government of New Granada. The imposition
of a tax by the State of Bolivar upon merchandise imported from the
United States and yet remaining in unbroken bulk or package and upon
which duties have been already paid to the National Government, under
the national laws, seems so palpably a violation of the treaty of peace,
amity, commerce and navigation existing between the two countries
that it is presumed the national authoi*ities will at once take the proper
measures to produce a discontinuance of that injurious measure. You
are instructed to persevere in your efforts to secure that end." (Mr.
Seward, Sec. of State, to Mr. Bui'ton, min. to Colombia, Jan. 30, 1863,
MS. Inst. Colombia, XVI. 53.)
(5) TRANSIT OF TROOPS.
§ 348.
June 6, 1853, Mr. Paredes, charge d'affaires of New Granada, com-
plained that several hundred United States troops had crossed the
Isthmus of Panama in July of the preceding j^ear without the pre-
vious permission of the Congress of the Republic. Mr. Paredes com-
plained of this as a violation of the New Granailian constitution. In
reply, Mr. Marcy, who was then Secretary of State, said that the Sec-
retary of War liad at the time requested the opinion of the Depart-
ment of State as to whether Art. XXXV. of the treaty of 1846 was
intended to embrace the privilege of sending troops across the Isth-
mus, and that the opinion of the Department appeared to have been
"unhesitatingly in the affirmative." That article, said Mr. Marcy,
guaranteed that tlie right of way or transit across the Isthmus should
be "open and free to the Government and citizens of the United
States." It was obvious that the United States could liave no other
occasion for the free right of passage thus secured "than to send over
that Ithmus persons in its employment in both the military and civil
service." 'i'he grant was understood by the Unite<l States to be full
and unqualified, and it could not be regarded as impaired by the pro-
vision of the constitution to which Mr. Paredes had referred. The
treaty, observed Mr. Marcy, was approved by tlie Congrees of New
Granada, and it could not bo supposed that that body, being acquainted
with its own prerogatives, would have sanctioned an instrument that
was supposed to trench upon them. On the contrary, it was not
§348.] ISTHMUS OF PANAMA: TRANSIT OF TROOPS. 127
improbable that the Congress of New Granada, having in view the
provisions of the constitution and well aware that the treaty secured
to the United States the right to send troops across the Isthmus,
intended, by giving its sanction to the treaty, to confirm the privi-
lege pursuant to the constitution itself. New Granada had, declared
Mr. Marcy, received from the United States an ample equivalent for
any sacrifices she may have made in entering into the treaty.
Mr. Marcy, Sec. of State, to Mr, Paredes, Colombian charge d'affaires, June
20, 1853, MS. Notes to Colombia, VI. 35.
The views alx>ve expressed were reaflBrmed by Mr. Marcy in another note
to Mr. Paredes, October 13, 1853, MS. Notes to Colombia, VI. 43.
"The one main object of your mission is an understanding, clear
and explicit, with regard to the right we insist upon of transporting
our troops over the Isthmus of Panama, either to or from our posses-
sions on the Pacific. We are in condition to make the guarantee we
are pledged to effective, and we expect in return the reciprocal bene-
fits arising therefrom, also pledged to us by treaty by the Republic
of Colombia."
Mr. Seward, Sec. of State, to Gen. Sickles, special agent to Colombia, March
18, 1865, MS. Inst. Special Missions. II. 35.
Gen. Sickles' principal instructions were dated January G, 1865. In these
instructions Mr. Seward stated that the governor of Panama had lately
refused Admiral Pearson permission to send across the Isthmus for
embarkation at Aspinwall for New York ' ' the insurgent conspirators
who had been arrested at the former place with authority and instruc-
tions found upon them to seize United States mail steamers on the
Pacific." In connection with this Mr. Seward stated that, while the
treaty did not contain any grant of a specific privilege as to the transit
of either troops or criminals, it certainly was by no forced construction
of the instrument that the privilege was claimed. It might indeed be
said that if the United States could not rightfully transport troops
between Asx)inwall and Panama, it could not fulfill one of the principal
objects to New Granada for which the treaty was entered into. (MS.
Inst. Special Missions, II. 29.)
February 27, 1865, General Salgar, Colombian minister in the United
States, informed the Department of State that his Government desired
to regulate in a definitive manner the transit of United States troops
across the Isthmus. (Mr. Seward, Sec. of State, to Mr. Salgar, March
31, 1865, MS. Notes to Colombia. VI. 185.)
Mr. Burton, United States minister to Colombia, reported in his No. 173,
May 13, 1865, that the authorities of the State of Panama refused in
October 1864 to iiermit United States troops to cross the Isthmus. He
added, however, that in January 1865 the Colombian Government gave
confidential orders to the authorities at Panama to i)ermit United States
troops, armed or unarmed, and materials of war to cross the Isthmus
without hindrance, at any and all times. (MS. Desp. from Coloinl^ia.)
President Mxirillo gave assurances to General Sickles that satisfactory
instructions would be given to the authorities on the Isthmus with
regard to the transit of United States troops. (Mr. Seward. Sec. of
128 INTEROCEANIC COMMUNICATIONS. [§ 349.
State, to Mr. Burton, min. to Colombia, June 13, 1865, MS. Inst.
Colombia, XVI. 130, referring to a report from Gen. Sickles of April 17,
1865.)
See, also, Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Sept.
15, and Sept. 27, 1865, MS. Inst. Colombia, XVI. 139, 140.
In acknowledging the receipt of Mr. Burton's 247 of June 26, 1866, setting
forth certain limitations proposed by the president of Panama to the
right of transit of the United States over the Isthmus, but at the
same time expressing the opinion that the proposed change had been
abandoned, the Department of State said: '• The United States must be
understood as not assenting to this proposed change in the orders of the
president of Panama of May 13, 1865. But it is perhaps best to avoid
all unnecessary discussion of the matter. ' ' ( Mr. Hunter, Second Assist.
Sec. of State, to Mr. Burton, min. to Colombia, Aug. 31, 1866, MS. Inst.
Colombia, XVI. 199.)
In September 1865, Mr. Alexander McKee. United States consul at Panama,
died. On the day of the funeral (Sept. 4), Admiral Pearson landed
with a small marine guard, provided with cartridges without balls, and
an unarmed band of music, with a view to attend the ceremonies. He
had given no previous notice of his intentions to the authorities. On
September 6 the president of Panama wrote to the Admiral, complain-
ing of his action, and stating that it was expected that permission would
in future be asked for lauding armed forces; that he himself and other
functionaries intended to be present at the funeral but abstained when
they saw the naval forces landed. Further correspondence was
exchanged. Mr. Seward expressed the opinion that the entire con-
troversy was uncalled for. He thought that the admiral should have
given notice of his intentions to the authorities, and that, when he
landed without having done so, they had a right to ask for an explana-
tion, but not of the admiral, who was not the proper person to address
for the jiurpose. The president of Panama had taken a " jealous atti-
tude.'^ (MSS. Dept. of State.)
By a protocol signed February 22, 1879, by Mr. Arosemena, minis-
ter of foreign relations of Colombia, and Mr. Uicliman, minister resi-
dent of the United States at Bogota, it was declared that, in conformity
with the note of the secretary of foreign relations of Colombia to the
government of the State of Panama of May 15, 1865, the troops of the
United States, as well as prisoners under federal jurisdiction, "can
pass as the usual service of its administration, a right which is estab-
lished in compensation for the guarantee of the sovereijrnty and prop-
erty of the isthmus, to which the same government is bound." The
protocol was approved by the Colombian Senate and also by the Sec-
retary of State of tlie United States.
Moore on Extradition, I. 714-718; For. Rel. 1879, 273-277, 284.
(6) FUGITIVES FROM JUSTICE.
§ 340.
In 1878 one Scrafford, wlio had been delivered iip by Peru to the
United States on a charge of forgery, was about to be taken across
the Isthmus of Panama by the agent of the United States, when he
§350.] ISTHMUS OF PANAMA: TELEGRAPHIC COMMUNICATION. 129
was released by the governor of Panama. The United States com-
plained, and negotiations were entered upon for a definition of the
right of transit under Art. XXXV. of the treaty of 1846. The negotia-
tions resulted in the conclusion, February 22, 1879, of a protocol by
which the right of transit of the Government of the United States, in
respect of fugitives from justice, as well as of military forces, was
recognized by the Government of Colombia. By a supplementary
protocol of October 23, 1879, it was provided that the custody of pris-
oners, whose transportation across the Isthmus should be requested
by the United States, should be kept by a civil officer of the United
States, accompanied by a Colombia civil officer, who should ask the
proper authorities, if necessary, for the assistance of the national or
State forces, in order to secure the due detention and transportation
of the prisoner.
Moore on Extradition, I. 713-718; For. Rel. 1878, 151-155; For. Rel. 1879,
251-254, 271,278-277, 284; For. Rel. 1880, 319, 322.
In January 1865 Mr. Seward complained that the governor of Panama had
lately refused Admiral Pearson permission to send across the Isthmus
for embarkation at Aspinwall for New York " the insurgent conspira-
tors who had been arrested at the former place with aiithority and
instructions found upon them to seize United States mail steamers on
the Pacific." (Mr. Seward, Sec. of State, to Gen. Sickles, Jan. 6, 1865,
MS. Inst. Special Missions, II. 29. See siipra,§ 348.)
(7) TELEGRAPHIC COMMUNICATION.
§ 350.
In January 1886 complaint was made by the Central and South
American Telegraph Company of New York that the operations of the
French Panama Canal Company in the Bay of Panama were endan-
gering the cable of the former company at that point. The matter
was brought to the attention of the Colombian minister at Washing-
ton, who invoked, by cable, the interposition of liis Government.
The French company avowed its control of the land line of tele-
gi'aph operated in connection witli the Panama Railroad Companj%
and asserted its determination to retain the monopoly alleged to have
been derived from the railroad concession, while the railroad company
gave notice on its part that the wire was "a private wire" and that
messages between Panama and Colon were sent " by courtesy. " In
this relation the Department of State said: " It is very evident, with-
out resorting to elaborate argument, that if telegraphic facilities are
among the means of interoceanic communication covered by the treaty
[of 1846], they must be open and public and their free and neutral
use fully secured. The announcement tliat the railroad and canal
companies' telegraph line from Colon to Panama is a private wire,
and that the use of it by the Governments of the Ignited States and
Colombia and by the commercial public is permissive only, is, if true,
H. Doc. 551— vol 3 9
130 INTEROCEANIC COMMUNICATIONS. [§351.
abundant demonstration that no trans-isthmian telegraphic communi-
cation now exists such as was contemplated and falls under the neces-
sary guaranties of the treaty of 1846. That instrument guaranties
to us ' equal, tranquil, and constant use ' of whatever means of transit
are provided for 'correspondence,' and the telegraph is assuredly tht>
most important and useful of all such means."
Mr. Bayard, Sec. of State, to Mr. Maury, min. to Colombia, Feb. 25, 1887,
For. Rel. 1888, 1. 405.
As to the complaint made by the Central and South American Telegraph
Company, see Mr. Bayard, Sec. of State, to Mr, Becerra, Colombian
min., Jan, 23, 1886, MS. Notes to Colombia, VII. 77; Mr. Bayard, Sec,
of State, to Mr, Scrymser, President of Central and South American
Telegraph Co., Feb. 6, 1886, 158 MS, Dom. Let, 669.
"With regard to the monoi)oly claimed by the Panama Railroad Company of
the telegraph line across the Isthmus, the Colombian minister of for-
eign affairs, December 28, 1887, stated that his Government, availing
itself of the right to construct public works of that kind within its own
territory, had resolved to establish in the Department of Panama a
national telegraph line of which the United States could have the use,
with the assurance that its communications would meet with no obstruc-
tions. Satisfaction was expressed by the United States "^th this
announcement, (For. Rel, 1888, 1, 407-408,)
III, CLAYTON-BULWER TREATY.
1, The Treaty and its Antecedents.
§ 351.
April 19, 1850, Mr. John M. Clayton, Secretary of State, and Sir
Henry Lytton Bulwer, British minister at Washington, signed at that
capital a treaty, the object of which was in the preamble declared to
be to set forth and fix in a convention the "views and intentions" of
the contracting parties "with reference to any means of communica-
tion by ship canal which may be constructed between the Atlantic
and Pacific Oceans by the way of the river San Juan de Nicaragua,
and either or both of the lakes of Nicaragua or Managua, to any port
or place on the Pacific Ocean."
By Article I. of the treaty it was provided as follows:
"The Governments of the United States and Great Britain hereby
declare that neither the one nor the other will ever obtain or main-
tain for itself any exclusive control over the said ship canal; agree-
ing that neither will ever erect or maintain any fortifications com-
manding the same, or in the vicinity thereof, or occupy, or fortify, or
colonize, or assume or exercise any dominion over Nicaragua, Costa
Rica, the Mosquito coast, or any part of Central America; nor will
either make use of any protection which either affords or may afford,
or any alliance which either has or may have to or with any State or
people for the purpose of erecting or maintaining any such fortifica-
§ 351.J CLAYTON-BULWER TREATY. 13]
tions, or of occupying, fortifying, or colonizing Nicaragua, Costa Rica,
the Mosquito coast, or any part of Central America, or of assuming or
exercising dominion over the same; nor will the United States or
Great Britain take advantage of any intimacy, or use any alliance,
connection, or influence that either may possess, with any State or
Government through whose territory the said canal may pass, for the
purpose of acquiring or holding, directly or indirectly, for the citizens
or subjects of the one any rights or advantages in regard to commerce
or navigation through the said canal which shall not be offered on the
same terms to the citizens or subjects of the other."
By Article II. it was agreed that American or British vessels trav-
ersing the canal should, in case of war between the contracting par-
ties, be exempt from blockade, detention or capture by either of
the belligerents, and that this provision should extend to such a dis-
tance from the ends of the canal as it might be found convenient to
establish.
In order to assure the construction of the canal, the contracting par-
ties (Art. III.) engaged that, if it should be undertaken upon fair and
equitable terms, by persons having the authority of the looal govern-
ments through whose territory it might pass, they would protect such
persons and their property from the commencement to the completion
of the canal "from unjust detention, confiscation, seizure, or any
violence whatsoever."
It was also provided (Art. IV.) that the contracting parties should
use (1) their influence with the local governments to induce them to
facilitate the construction of the canal, and (2) their good olfices to
procure the establishment of two free ports, one at each end of the
canal.
The contracting parties further engaged (Art. V.), when the inter-
oceanic canal was completed, to "protect it from interruption, seizure,
or unjust confiscation," and to "guarantee the neutrality thereof,
so that the said canal may forever be open and free, and the capital
invested therein secure." It was, however, expressly understood that
the guarantee of protection and security was given conditionally and
might be withdrawn by both governments or either government, if
both or either of tliem should consider that the persons or company
undertaking or managing the canal had established regulations con-
cerning traffic contrary to the spirit and intention of tlie convention,
either by making unfair discriminations or by imposing oppressive
exactions or unreasonable tolls.
By Article VI. of the treaty the contracting parties entered into the
following engagements:
"The contracting parties in this convention engage to invite every
State with whicli botli or either have friendly intercourse to enter into
stipulations with them similar to tliose wliich they have entered into
with each other, to the end that all other States may share in the honor
132 INTEROCEANIC COMMUNICATIONS. [§ 351.
nm\ advantage of liaving contributed ton work of .such general inter-
est and importance as the canal herein contemplated. And the con-
tracting parties likewise agree that each shall enter into treaty stipu-
lations with such of the Central American States as they may deem
advisable for the purpose of more effectually carrying out the great
design of this convention, namely, that of constructing and maintain-
ing the said canal as a ship communication between the two oceans,
for the benefit of mankind, on equal terms to all, and of protecting
the same; and they also agree that the good offices of either shall be
emi^loyed, when requested by the other, in aiding and assisting the
negotiation of such treaty stipulations; and should any differences
arise as to right or i)roperty over the territory through which the said
canal shall pass, between the States or Governments of Central Amer-
ica, and such differences should in any way impede or obstruct the
execution of the said canal, the Governments of the United States
and Great Britain will use their good offices to settle such differences
in the manner best suited to promote the interests of the said canal,
and to strengthen the bonds of friendship and alliance which exist
between the contracting parties."
By Article VII. it was agreed that the Governments of the United
States and Great Britain should give their support and encouragement
to such persons or company as might first offer to begin the canal
with the necessary concessions and capital, and that if any persons or
company should already have entered into a proper and unobjection-
able contract with any state through which the proposed ship canal
might pass, and had made preparations and expenditures on the faith
of such contract, such persons or company should have j)rior consid-
eration and should be allowed a year from the date of the exchange
of the ratifications of the treaty for the purpose of concluding their
arrangements and ijresenting j)roofs of the necessary subscriptions of
capital.
The contracting parties then embodied in Article VIII. of the treaty
a general stipulation, in the following terms:
"The Governments of the United States and Great Britain having
not only»desired, in entering into tliis convention, to accomplish a
particular object, but also to establish a general principle, they
hereby agree to extend their protection, by treaty stij)ulations, to any
other practicabh; communications, whethei- b^^ canal or railway, across
the isthmus which connects North and South America, and especially
to the interoceanic communications, should the same prove to be
practicable, whether by canal or railway, which are now projjosed to
be established by the way of Tehuantepec or Panama, In granting,
however, their joint protection to any such canals or railways as are
by this article specified, it is always understood by the United States
and Great Britain that the parties constructing or owning the same
shall impose no other charges or conditions of traffic thereupon than
§ 351.] CLAYTON-BULWER TREATY. 133
the aforesaid Governments shall approve of as just and equitable;
and that the same canals or railways, being open to the citizens and
subjects of the United States and Great Britain on equal terms, shall
also be open on like terras to the citizens and subjects of every other
State which is willing to grant thereto such protection as the United
States and (xreat Britain engage to afford."
The treaty was approved by the Senate of the United States by a vote of
42 to 11. the latter number including the vote of Senator Douglas, who,
though he was not recorded at the time, afterwards stated that he voted
against the treaty. With this inclusion, the vote stood:
Yeas — Messrs. Badger, Baldwin, Bell. Berrien. Butler, Cass, Chase, Clarke,
Clay, Cooper, Corwin, Davis of Massachusetts, Dawson, Dayton, Dodge
of Wisconsin, Dodge of Iowa, Downs, Felch, Foote, Greene, Hale, Hous-
ton, Hunter, Jones, King. Mangum, Mason, Miller, Morton, Norris,
Pearce, Pratt, Sebastian, Seward, Shields, Smith. Soiile, Spruance,
Stiirgeon, Underwood, Wales, and Webster — 42.
Nays — Messrs. Atchison, Borland, Bright, Clemens. Davis of Mississipxn,
Dickinson, Douglas, Turney, Walker, Whitcomb, and Yulee — 11. (Ex.
Journal, Vni. 186.)
June 8. 1848, Mr. Elijah Hise, newly appointed charge d'affaires to Gua-
temala and Central America, was instructed by Mr. Buchanan to obtain
information as to the nature and extent of the late British encroach-
ments in Central America, particularly in the Mosquito territory and
Belize, in order that the United States might decide upon a cour.se of
policy. It was tlien reported that Great Britain had obtained possession
of the harbor of San Juan de Nicaragua, or Greytown, with a view to
obtain control of the route for a railroad or a canal between the Atlantic
and Pacific oceans by way of Lake Nicaragiia. Mr. Hise was prevented
by illness and other causes from reaching Guatemala till a late period
in Mr. Polk's administration, and before any dispatches were received
from him Mr. Polk had ceased to be President. (H. Ex. Doc. 75. 31
Cong. 1 sess. 92-96; Curtis, Life of Buchanan, I. 620-628.)
For an elaborate discussion of the Central American (piestion. see Mr. Clay-
ton, Sec. of State, to Mr. Hise, May 1 , 1849, MS. Inst. Am. States, XV. 64.
June 21 , 1849. Mr. Hise, acting without instructions, concluded with Mr. Sel-
va, representing the Government of Nicaragua, a special convention
by which the latter granted to ■' the United States of America, or to a
company of the citizens tliereof. the exclusive right and privilege" t)f
constructing a canal, railway, or other means of communication
between the two oceans through the territories of Nicaragua. If the
United States should decide not to undertake the work itself, then
" either the President or Congress"" was to grant a charter to a com-
pany for the purpose. Tlie United States was to have the right to for-
tify and protect by its forces the line to be establslied. Public vessels
or private vessels of counti'ies witli which the contracting parties might
be at war were not. during the contiiuiance of the war, to be allowed
to use the canal. Nicaragua agreed to grant to the United States, or
to a chartered company, land for the establishment of two free cities,
one at each end of the proposed way. In return for these concessions,
the United States was to i)rotect and defend Nicaragiia in the posses-
sion and exercise of the sovereignty and dominion of all the territories
within lier just limits. (40 Brit. & For. St. Pap. 969; Correspondence
in relation to the Proposed Intei-oceanic Canal (Washington. 1885), 94.)
134 INTEROCEANIC COMMUNICATIONS. f § 351.
For an unratified treaty of amity and commerce between the United States
and Nicaragua, condnded September H, 1849, containing an Article
(XXXV.) in relation to the proposed canal, see 40 Brit. & For. St. Pap.
979, 10.53. This treaty was signed by Mr. Scjuier, Aniericran charge to
Guatemala and Central America, and Seiior Zepeda, on the part of
Nicaragua.
The Hise-Selva convention was not approved either by the United States
or by Nicaragua, and was not submitted to the United States Senate.
Nor was the treaty of September 3, 1849, so submitted. It was stated
that the principal reason for not submitting it to the Senate was the
circumstance that a particular company mentioned in Article XXXV. ,
as having been chartered by Nicaragua to construct the canal, desired
a modification of the contract. (Mr. Clayton, Sec. of State, to Mr.
Carcache, Nicaraguan charge d'affaires, Jan. 2 and Feb. 5, 1850, MS.
Notes to Central America, I. 2, 8. See, also, Mr. Claytrjn, Sec. of State,
to Mr. Rives, min. to France, Jan. 36, 1850, MS. Inst. France, XV. 125.)
The company referred to was styled " The American Atlantic and Pacific
Ship Canal Company."' Its contract with Nicaragua was signed at
Leon, August 27, 1849. This contract, which was afterwards accepted
under Article VII. of the Clayton-Bulwer treaty, was annulled by a
decree by the President of Nicaragua, February 18, 1856. (Correspond-
ence in relation to the Proposed Interoceanic Canal (Wa.shington, 1885),
195, 250.)
Soon after the receipt of the Hise-Selva convention in Washington, Mr.
Clayton, who had then become Secretary of State, acquainted the
British minister, Mr. Crampton, with the fact that it was not approved
by the United States, and at the same time suggested that great caution
would be required on both sides in order to prevent the United States
and Great Britain from being brought into collision on account of the
Mosquito question. (Mr. Crampton, Brit, min., to Lord Palmerston,
Sept. 17, 1849, 40 Brit. &For. St. Pap. 953; Correspondence (1885), 301,
where the date is erroneously given as September 15.)
See, also, Mr. Crampton to Lord Palmerston, Oct. 1, and Oct. 15, 1849, 40
Brit. & For. St. Pap. 955-961.
September 24, 1849, Mr. W. C. Rives, minister to France, who, owing to
the departure of Mr. Bancroft from London and the temporary post-
ponement of the departure of his successor, Mr. Abbott Lawrence, for
that capital, was requested to stop on his way to Paris and confer with
the British Government, had an interview with Lord Palmerston, in
which he expressed, under instructions from Mr. Clayton, the view that
the two governments should come to an understanding with each other
on the basis of the free use and neutralization of the canal. (Mr. Rives
to Mr. Clayton, Sept. 25, 1849, Correspondence (1885), 11.)
Mr. Lawrence was afterwards instructed in the same sense. (Mr. Clayton,
Sec. of State, to Mr. Lawrence, min. to England, Oct. 20, 1849, Corre-
spondence (1885), 13; MS. Inst. Great Britain, XVI. 50. See, also,
same to same. Dec. 10, 1849, MS. Inst. Great Britain, XVI. 73.)
With reference to Mr. Rives' conversation with Lord Palmerston, see Lord
Palmerston to Mr. Crami>ton, Nov. 9. 1849. saying that the British
Government had " no selfish or exclusive views in regard to a communi-
cation by canal or railway across the Isthmtis from sea to sea." (40
Brit. & For. St. Pap. 961, 962.)
See, also, Mr. Crampton to Lord Palmerston, Nov. 4, 1849, 40 Brit. & For.
State Pap. 966; Mr. Lawrence to Lord Palmerston, Nov, 8, 1849, id.
§ 351.] CLAYTON-BULWER TREATY. 135
961; Lord Palmerston to Mr. Lawrence, Nov. 13, 1849, id. 962-964; same'
to same, Nov. 19, 1849, id. 965; Mr. Lawrence to Lord Palmerston,
Nov. 22, 1849, id. 966, 988; same to same, Dec. 14, 1849, id. 989.
September 28, 1849, the Government of Honduras, by an agreement signed
with Mr. Squier, the United States charge d'affaires, ceded to the United
States Tigre Island, in the Gulf of Fonseca, to hold absolutely for
eighteen ifionths or until the ratification of a treaty which had that day
been signed. October 16, 1849, Mr. Chatfield. the British diplomatic
representative in Guatemala, with an armed force took possession of
the island in the name of her Britannic Majesty. The United States
asked for a disavowal of Mr. Chatfield's act. Lord Palmerston stated
that Mr. Chatfield had taken possession of the islands as a measure of
reprisal and as a temporary pledge for the payment of claims of British
subjects against Honduras, but that, when all the circumstances became
known, he was directed to restore the island to its former condition.
Lord Palmerston added that her Majesty's Government intended to
abide by the assurance given to Mr. Lawrence on the 13th of November,
that they did not intend to occupy or colonize any part of Central
America, but that the arrangement made by Mr. Squier for the cession
of Tigre Island to the United States would, if adopted by the latter, be
at variance with the declaration contained in Mr. Lawrence's note of
the 8th of November, to which that of the 13th was a reply. (40 Brit.
& For. St. Pap. 997-1002, 1019.)
See, also, Mr. Clayton. Sec. of State, to Mr. Squier, May 7, 1850, MS. Inst.
Am. States, XV. 104; Mr. Seward, Sec. of State, to Mr. Adams, min. to
England, April 25, 1866, Correspondence in relation to the Proposed
Interoceanic Canal ("Washington, 1885), 14.
Negotiations at London, with reference to the Central American question
and the interoceanic canal, having been delayed by Mr. Lawrence's
illness, Sir Henry L. Bulwer, British minister at Washington, who was
fully possessed of Lord Palmerston's views, determined without delay
to enter into a treaty, and on February 3, 1850, he transmitted to Lord
Palmerston a project of the convention afterwards signed. In so doing,
he said: "It [the convention] will probably be attacked with violence
by the parties who are for supporting Mr. Monroe's famous doctrine at
all hazards, and who contend that Mr. Hise's convention is the only one
that this country ought to adopt or sanction; but, on the other hand. I
think I can promise that it will be duly esteemed and approved of by the
Senate, and carry with it the weighty sanction of all reasonable men."
(40 Br. & For. State Papers, 1003, 1008, 1010-1011, 1011-1014.)
For Lord Palmerston's reply, see 40 Br. & For State Papers, 1017, 1018.
As to the signature of the Clayton-Bulwer treaty, see 40 Brit. & For. State
Papers, 1024^1027, 1028-1030.
" This convention provides that neither party to it shall make use of any
protection or alliance for the purpose of occupying, fortifying, coloniz-
ing or assuming or exercising any dominion whatsoever over any part
of Central America or the Mosquito coast. Virtually it makes provision
also for the protection of the company wliich already has the charter
from Nicaragua and which is protected by Squier 's treaty, "as well as
for the future protection of the Tehuan tepee and Panama routes, and
all other practicable routes across the Isthmus. It prohibits the block-
ade of vessels traversing the canal; it liberates all Central America from
foreign aggression; and it will, in short, when known, be hailed as a
declaration of Central American independence. The convention is now
i36 INTEROCEANIC COMMUNICATIONS. f§ 3151^.
before the Senate, which will no doubt consent to its ratification, when
a copy of it will lie transmitted to yon, in order that, at the proper time,
jou'may invite the French Government to enter into the treaty of acces-
sion for which the convention provides."' (Mr. Clayton. Sec. of State, to
Mr. Rives, niin. to France, April 27, 18.50, MS. Inst. France. XV. 129.)
Snbseciiiently. after the treaty was approved by the Senate, bnt before the
ratifications were exchanged, Mr. Rives was instructed to "lose no time
in bringing this subject to the notice of the Minister of Foreign Affairs
of France, and negotiating with the French Government a convention
in the very words, as far as the same are applicable, of the one concluded
between the United States and Great Britain.'" (Mr. Clayton. Sec. of
State, to Mr. Rives, min. to France, May 26, 18.50, MS. Inst. France, XV.
131.)
For Mr, Clayton "s defense of the treaty in the Senate, March 8 and 9, IHryU,
see Cong. Globe, 32 Cong. 3 sess., App. 247.
See speech of Mr. Seward in the Senate, Jan. 81, 18.56, Cong. Globe, 34 Cong.
1 sess. pt, I, 323; App, 75,
For an interesting article on the Clayton-Bulwer treaty, see 99 Quarterly
Rev, (June, 1856), 235, This article is attributed by Mr. Hayward
(Letters, etc. , 1. 1290) to Sir E. L. Bulwer. See, also, an article by Sir H.
Bulwer (Lord Bailing), 104 Edinburgh Rev. (Jiily, 18.56), 280.
"You will represent to the Government of Nicaragua that this Government
cannot undertake to guarantee the sovereignty of the line of the (pro-
posed) canal to her until the course which that work shall take, with
reference to the river San Juan, and its terminus on the Pacific, shall
be ascertained, and until the difference between Nicaragua and Costa
Rica, concerning their boundary, shall be settled,'" (Mr. Webster, Sec.
of State, to Mr. Kerr, May 4, 1851, MS. Inst. Am. St. XV. 113,)
2, Variant Interpretations,
When the Clayton-Bulwer treaty was made, Great Britain claimed
dominion over the British settlement at Belize, otherwise known as
British Honduras, and, as a dependency thereof, over Rnatan and
certain other islands, otherwise known as the Bay Islands, lying off
the coast of the Republic of Honduras; and she also asserted a pro-
tectorate over the coast or territory inhabited by the Mosquito Indians.
See Keasbey, The Nicaragua Canal and the Monroe Doctrine, 164-175,
Travis, The History of the Clayton-Bulwer treaty, 31-50,
(1) BELIZE, OR BRITISH HONPURAS,
Declaration made hy Sir Henry Biihrer at the Department of State,
June 29, 1850, prior to the exchange oftlie ratfiications of the Clay-
ton-Bulwer treaty.
"In proceeding to the exchange of the ratifications of the conven-
tion signed at Washington on the 10th of April, 1850, between her
Britannic majestj'^ and the United States of America, relative to tlie
establishment of a communication by ship canal between the Atlan-
tic and Pacific oceans, the undersigned, her Britannic majesty's pleni-
§352.] CLAYTON-BULWER TREATY: BELtZE, 137
potentiary, has received her majesty's instructions to declare that her
majesty does not understand tlie engagements of that convention to
apply to her majesty's settlement at Honduras, or to its dependencies.
Her majesty's ratification of the said convention is exchanged under
the explicit declaration above mentioned.
" Done at Washington the 20th day of June, 1850.
"II. L. BULWER."
Memornndum touching Sir Henry Bidiuefs declaration filed hij Mr.
Clayton in the Department of State at Washington, July 5, 1850.
"Department of State,
'^Washington, July 5, 1850.
"The within declaration of Sir II. L. Bulwer was received by me on
the 29th day of June, 1850. In reply, I wrote him my note of the 4tli
of July, acknowledging that I understood British Honduras was not
embraced in the treaty of the 10th day of April last; but at the same
time carefully declining to affirm or deny the l^ritish title in their
settlement or its alleged dependencies. After signing my note last
night, I delivered it to Sir Henry, and we immediately proceeded, with-
out any further or other action, to exchange the ratifications of said
treaty. The blank in the declaration was never filled up. The con-
sent of the Senate to the declaration was not required, and the treaty
was ratified as it stood when it was made.
"John M. Clayton.
" N. B. — The rights of no Central American State have been compro-
mised by the treaty or by any part of the negotiations."
For the text of Mr. Clayton's note to Sir H. L. Bulwer of July 4, 18.50. see
H. Ex. Doc. 1, 34 Cong. 1 seat*. 119. The essential part of the note is
quoted below, in Lord Clarendon's statement for Mr. Buchanan of May
2. 1854.
When the declaration of Sir H. Bulwer, and the reply of Mr. Clayton, of
July 4, 1850, on the exchange of the ratifications of the treaty, were
communicated with other papers to the Senate, a discussion took place,
in which Mr. Cass bore the leading part. Mr. Cass denied the authority
of Mr. King to speak for him, and offered a resolution instructing the
Committee on Foreign Relations to inqiiire and report what measures,
if any, should be taken by the Senate in regard to the correspondence.
The committee reported that no measures were, in its opinion, neces-
sary, and none were taken. (S. Rep. 407, 33 Cong. 2 sess.)
See speech of Gen. Cass in the Senate, Jan. 11, 1854, Cong. Globe. 33 Cong.
1 sess., App., given in Smith's Life of Cass, 750.
For Mr. Clayton's speech in the Senate, March 8 and 9, 1853. in which it is
maintained that Belize, or Biitish Honduras, within its i)roi)er limits,
originally constituted a part of Y^icatan. and not of Central America,
see Cong. Globe, 32 Cong. 3 sess., App. 247.
"It is ])eli('ved that (^reat Britain has a <[ualifiod right ovei- a tract
of country called the Belize, from which she is not ousted by tliis
138 INTEROCEANIC COMMUNICATIONS. [§ 352.
treaty, because no part of that tract, when restricted to its proper
limits, is within the boundaries of Central America."
Mr. Marcy, Sec. of State, to Mr. Borland, inin. to Central America. Dec. :«),
IS.'iS, Correspondence in Relation to the Proposed Interoceanic Canal
(Washington, 1885), 247.
"Tt was never in the contemplation of Her Majesty's Government,
nor in that of the Government of the United States, that the treat}- of
1850 should interfere in any way with Her Majesty's settlement at
Belize or its dependencies.
"It was not necessary that this should have been particularly stated,
inasmuch as it is generally considered that the term ' Central Amer-
ica'— a term of modern invention — could only appropriately apply to
those States at one time united under the name of the ' Central Amer-
ican Republic,' and now existing as five separate republics; but, in
order that there should be no possible misconception at any future
period relative to this point, the two negotiators, at the time of ratifying
the treaty, exchanged declarations to the effect that neither of the
Governments they represented had meant in such treaty to compre-
hend the settlement and dependencies in question.
"Mr. Clayton's declaration to Her Majesty's Government on this sub-
ject was ample and satisfactory, as the following extract from his note
of July 4, 1850, will show:
"'The language of Article I. of the convention concluded on the
19th day of April last, between the United States and Great Britain,
describing the countrj^ not to be occupied, <fec., bj'^ either of the parties,
was, as you know, twice approved by the Government, and it was
neither understood by them, nor bj^ either of us [the negotiators], to
include the British settlement in Honduras (commonly called British
Honduras, as distinct from the State of Honduras) , nor the small islands
in the neighborhood of that settlement which may be known as its
dependencies.
" ' To this Settlement and these islands the treatj^ we negotiated was
not intended bj^ either of us to appl3\ The title to them it is now, and
has been my intention throughout the whole negotiation, to leave as the
treaty leaves it, without denying or affirming, or in any way meddling
with the same, just as it stood previously.
' ' ' The chairman of the Committee on Foreign Relations of the Senate,
the Honorable AV. R. King, informs me that the Senate perfectly
understood that the treaty did not include British Honduras.'
"Such having been the mutual understanding as to the exception of
the settlement of Belize and its dependencies from the operation of the
treaty, the only question relative to this settlement and its dependen-
cies in reference to the treaty, that can now arise, is as to what is the
settlement of Belize and its dependencies, or, in other words, as to
what is British Honduras and its dependencies.
§352.] CLAYTON-BULWER TREATY: BELIZE. 139
" Her Majesty's Government certainly understood that the settlement
of Belize, as here alluded to, is the settlement of Belize as established
in 1850; and it is more warranted in this conclusion from the fact that
the United States had, in 1847, sent a consul to this settlement, which
consul had received his exequatur from the British Government; a
circumstance which constitutes a recognition by the United States
Government of the settlement of British Honduras under Her Majesty
as it then existed.
''Her Majesty's Government at once states this, because it perceives
that Mr. Buchanan restricts the said settlement within the boundaries
to which it was confined by the treaty of 1786; whilst Her Majesty's
Government not only has to repeat that the treaties with Old Spain
cannot be held, as a matter of course, to be binding with respect to all
the various detached portions of the old Spanish- American monarchy,
but it has also to observe that the treaty of 1786 was put an end to by
a subsequent state of war between Great Britain and Spain; that dur-
ing that war the boundaries of the British settlement in question were
enlarged; and that when peace was re-established between Great
Britain and Spain, no treaty of a political nature, or relating to terri-
torial limits, revived those treaties between Great Britain and Spain
which had previously existed.
" Her Majesty's Government, in stating this fact, declares distinctly,
at the same time, that it has no projects of political ambition or aggran-
dizement with respect to the settlement referred to ; and that it will be
its object to come to some prompt, fair, and amicable arrangement
with the states in the vicinity of British Honduras for regulating the
limits which should be given to it, and which shall not henceforth be
extended beyond the boundaries now assigned to them."
Statement of Lord Clarendon for Mr. Buchanan, May 2, 1854, 46 Br. & For.
State Papers, 267; H. Ex. Doc. 1. 34 Cong. 1 sess. 89.
"In regard to Belize proper, confined within its legitimate bound-
aries, under the treaties of 1783 and 1786, and limited to the usufruct
specified in these treaties, it is necessary to say but a few words. The
Government of the United States will not, for the present, insist upon
the withdrawal of Great Britain from this settlement, provided all the
other questions between the two Governments concerning Central
America can be amicably adjusted. It has been influenced to pursue
this course, partly by the declaration of Mr. Clayton, of tlie 4th of
July, 1850, but mainly in consequence of the extension of the license
granted by Mexico to Great Britain under the treaty of 182('), which
that Republic has yet taken no steps to terminate.
"It is, however, distinctly to be understood that tlie Government of
the United States acknowledge no claim of (4reat Britain within Belize,
except the temporary ' liberty of making use of the wood of the differ-
ent kinds, the fruits and other produce in their natural .state,' fully
140 INTEROCEANIC COMMUNICATIONS. [§ 353.
recognizing that the former Spanish sovereignty over the country
l)elongs either to Guatemala or to Mexico.
"In conclusion, the Government of the United States most cordially
and (earnestly unite in the desire expressed by ' Her Majesty's (4(>vern-
ment, not only to maintain the convention of 1850 intact, but to con-
solidate and strengthen it by strengthening and consolidating the
friendly relations which it was calculated to cement and perpetuate.'
ITnder these mutual feelings it is deeply to be regretted that the two
Governments entertain opinions so widely different in regard to its
true effect and meaning."
Remarks of Mr. Buchanan, min. to England, July 22, 1854, in reply to Earl
of Clarendon. 46 Br. & For. State Papers, 295; H. Ex. Doc. 1, 34 Cong. 1
sess. 113.
See Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England. June 12,
Aug. 6, 18.")o. H. Ex. Doc. 1 , 34 Cong. 1 sess. 67, 69; and President Pierce's
annual message of Dec. 31, 1855, id.
Great Britain had not, at the time of the convention of April 19,
1850, "any rightful possessions in Central America, save only the
usufructuary settlement at the Belize, if that really be in Central
America;" and at the same time, "if she had any, she was bound by
the express tenor and true construction of the convention, to evacuate
the same, so as thus to stand on precisely the same footing in that
respect as the United States.''
Mr. Marcy, Sec. of State, to Mr. Dallas, min. to England, July 26, 1856, MS.
Inst. Gr. Brit. XVII. 1, 10. The whole of this instruction is of great
importance.
See, also, Mr. Marcy to Mr. Dallas, March 14, April 7, May 24, 1856, MS.
Inst. Gr. Br. XVI. 468, 471, 480.
See S. Ex. Docs. 12. and 27, 32 Cong. 2 sess.; S. Ex. Doc. 1, 34 Cong. 1 sess.
(2) RUATAN, AND OTHER BAY ISLANDS.
§ 353.
"proclamation.
"Office of the Colonial Secretary,
''Belize, July 17, 1852.
"This is to give notice that Her Most Gracious Majesty the Queen
has been pleased to constitute and make the islands of Roatan
[Ruatan], Bonacca, Utilla, Barbarat, llelene, and Moral to be a
colony to be known and designated as 'the C^olony of the Bay
Islands. '
"Augustus Frederick Gore,
'^ Acting Colonial Secrefar'y.
" God save the Queen ! "
Correspondence in relation to the Proposed Interoceanic Canal (Washington,
1885), 245.
§353.] CLAYTON-BULWER TREATY: BAY ISLANDS. l-ll
" I believe Great Britain has never defined the character of her
claim to possess what is called 'the colony of the Bay Islands.' It
does not appear to be one of her organized colonies. She has not, in
explicit language, claimed sovereignty over it, though her acts have
indicated such a purpose. Whatever may have been her rights or
pretension to rights over this colony, they were all given up, according
to the view here taken of the subject, by the Clayton and Bulwer
treaty. . . .
"It is presumed that the only part of that colony to which England
will be disposed to attach much value, or have any inducement to
retain, is the island of Ruatan. From an intimation made to me it
may be that she will take the position that this island does not belong
to any of the Central American States, but is to be regarded in the
same condition as one of the West India Islands. By reference to the
treaties between Great 13ritain and Spain, you will find this island
clearly recognized as a Spanish possession, and a part of the old vice-
royalty of Guatemala."
Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England, Sept. 13, 1853,
H. Ex. Doc. 1, 34 Cong. 1 sess. 49, 50.
"The island of Ruatan, belonging to the State of Honduras, and
within sight of its shores, was captured, in 1841, by Colonel McDonald,
then Her Britannic Majesty's Superintendent at Belize, and the flag of
Honduras was hauled down, and that of Great Britain was hoisted in
its place. This small State, incapable of making any effectual resist-
ance, was compelled to submit, and the island has ever since been
under British control. What makes this event more remarkable is,
that it is believed a similar act of violence had been committed
on Ruatan by the Superintendent of Belize in 1835; but on complaint
by the P"'oderal Government of the Central American States then still
in existence, the act was fonnally disavowed by the British Govern-
ment, and the island was restored to the authorities of the Republic.
"No question can exist but that Ruatan was one of the 'islands
adjacent ' to the American continent which had been restored by
Great Britain to Spain under the treaties of 1783 and 1786. Indeed,
the most approved British gazetteers and geogrnphei-s, up till the pres-
ent date, have borne testimony to this fact, apparently without infor-
mation from that hitherto but little known portion of the world, that
the island had again been seized by Her Majesty's Superintendent at
Belize, and was now a possession claimed by (Treat Britain."
Statement of Mr. Buchanan, min. to England, to the Earl of Clarendon,
Jan. 6, 1854. 4G Br. & For. State Papers. 244, 351 : H. Ex. Doc. 1 , 34 Cong.
1 sess. 55, 57, 61.
In a statement, dated May 2, 1854, in reply to Mr. Biichanans sttitement.
Lord Clarendon said that the only question that could be debatable with
regard to the Bay Islands was, whether they were dependencies of
Belize or of some Central American state. It was true, he said, that
the Republic of Central America declared that it had had a flag flying
142 INTEROCEANIC COMMUNICATIONS. [§353.
on the Island of Ruatan from 1831 to 1839, but all that was j^sitively
known was that, when the British Government learned that a foreign
flag was flying there, a British man-of-war was sent to haul it down,
and no attempt had since been made to reestablish it. He also declared
that whenever Ruatan had been i)ermanently occupied, either in remote
or recent times, by anything more tlian a military guard or flagstaff,
the occupation had been by British subjects. (46 Brit. & For. State
Pap. 268; H. Ex. Doc. 1, 34 Cong. 1 sess. 90.)
For "Remarks'' of Mr. Buchanan, July 22, 1854, in answer to Lord
Clarendon, see 46 Brit. & For. State Pap. 272; H. Ex. Doc. 1, 34 Cong.
1 sess. 93.
For an additional article signed at London,. Aug. 27, 1856, to the treaty of
amity and commerce between Great Britain and Honduras, see Corre-
spondence in relation to the Proposed Interoceanic Canal (Washington,
1885), 252.
" Whilst it is greatly to the interest, as I am convinced it is the sin-
cere desire, of the Governments and people of the two countries to be
on terms of intimate friendship with each other, it has been our mis-
fortune almost always to have had some irritating, if not dangerous,
outstanding question with Great Britain.
"Since the origin of the Government we have been employed in
negotiating treaties with that power, and afterwards in discussing their
true intent and meaning. In this respect the convention of April 19,
1850, commonly called the Clayton and Bulwer treaty, has been the
most unfortunate of all, because the two Governments place directly
opposite and contradictory constructions upon its first and most
important article. Whilst in the United States we believed that
this treaty would place both powers upon an exact equality by the
stipulation that neither will ever ' occupy, or fortify, or colonize, or
assume, or exercise any dominion ' over any part of Central America,
it is contended by the British Government that the true construction
of this language has left them in the rightful possession of all that
portion of Central America which was in their occupancy at the date
of the treaty; in fact, that the treaty is a virtual recognition on the
part of the United States of the right of Great Britain, either as owner
or protector, to the wliole extensive coast of Central America, sweeping
round from the Rio Hondo to the port and harbor of San Juan de Nic-
aragua, together with the adjacent Bay Islands, except tlie comjiara-
tively small portion of this between the Saratoon and Cape Honduras.
According to their construction, the treaty does no more than simply
prohibit them from extending their possessions in Central America
beyond the present limits. It is not too much to assert that if in the
United States tlie treaty had been considered susceptible of such a con-
struction it never would liave been negotiated under the authority of
the President, nor would it have received the approbation of the Sen-
ate. The universal conviction in the United States was that when
our Government consented to violate its traditional and time-honored
policy and to stipulate with a foreign government never to occupy or
§353.] CLAYTON-BULWER TREATY: BAY ISLANDS. 143
acquire territory in the Central American portion of our own conti-
nent, the consideration for this sacrifice was that Great Britain should,
in this respect at least, be placed in the same jjosition with ourselves.
Whilst we have no right to doubt the sincerity of the British Govern-
ment in their construction of the treaty, it is at the same time my
deliberate conviction tliat this construction is in opposition both to its
letter and its spirit,
' ' Under the late Administration negotiations were instituted between
the two Governments for the purpose, if jiossible, of removing these
difficulties, and a treaty having this laudable object in view was signed
at London on the 17th October, 1856, and was submitted by the Presi-
dent to the Senate on the following 10th of December. Whether this
treaty, either in its original or amended form, would have accomplislied
the object intended without giving birth to new and embarrassing com-
plications between the two Governments, may perhaps be well ques-
tioned. Certain it is, however, it was rendered much less objectionable
by the different amendments made to it by the Senate. The treaty
as amended was ratified by me on the 12th March, 1857, and was trans-
mitted to London for ratification by the British Government. That
Government expressed its willingness to concur in all the amendments
made by the Senate witli the single exception of the clause relating to
Ruatan and the other islands in the Bay of Honduras. The article in
the original treaty as submitted to the Senate, after reciting that these
islands and their inhabitants ' having been, by a convention bearing
date the 27th day of August, 1856, between Her Britannic Majesty and
the Republic of Honduras, constituted and declared a free territory
under the sovereignty of the said Republic of Honduras,' stipulated
that ' the two contracting parties do hereby mutually engage to recog-
nize and respect in all future time the independence and rights of
the said free territory as a part of the Republic of Honduras.'
' ' Upon an examination of this convention between Great Britain
and Honduras of the 27th August, 1856, it was found that whilst
declaring the Bay Islands to be ' a free territory under the sovereignty
of the Republic of Honduras' it deprived that Republic of rights
without which its sovereignty over them could scarcely be said to
exist. It divided them from the remainder of Honduras and gave to
their inhabitants a separate government of their own, with legislative,
executive, and judicial officers, elected by themselves. It deprived
the Government of Honduras of tlie taxing power in every form and
exempted the people of the islands from the i)erformance of military
duty except for their own exclusive defense. It also prohibited that
Republic from erecting fortifications upon them for their protection,
thus leaving them open to invasion from any <iuarter; and, finally, it
provided ' that slavery shall not at any time hereafter be permitted
to exist therein.'
144 INTEROCEANIC COMMUNICATIONS. [§353.
"Had Honduras ratified tliis conveiitioii, she would liave ratified
the establishment of a state substantially independent within her own
limits, and a state at all times subject to British Influence and con-
trol. Moreover, had the United States ratified the treaty with Great
Britain in its original form, we should have been bound ' to recognize
and respect in all future time' these stipulations to the prejudice of
Honduras. Being in direct opposition to the spirit and meaning of
the Clayton arid Bulwer treaty as understood in the United States,
the Senate rejected the entire clause, and substituted in its stead a
simple recognition of the sovereign right of Honduras to these islands
in the following language : ' The two contracting parties do hereby
mutually engage to recognize and respect the islands of Ruatan,
Bonaco, Utila, Barbaretta, Helena, and Morat, situate in the Bay of
Honduras and off the coast of the Republic of Honduras, as under
the sovereignty and as part of the said Republic of Honduras.'
"Great Britain rejected this amendment, assigning as the only
reason that the ratifications of the convention of the 27th August,
1856, between her and Honduras had not been ' exchanged, owing to
the hesitation of that Government.' Had this been done, it is stated
that 'Her Majesty's Government would have had little difficulty in
agreeing to the modification proposed by the Senate, which then would
have had in effect the same signification as the original wording.'
Whether this would have been the effect, whether the mere circum-
stance of the exchange of the ratifications of the British convention
with Honduras prior in point of time to the ratification of our treaty
with Great Britain would ' in effect' have had ' the same signification
as the original wording,' and thus have nullified the amendment of
the Senate, may well be doubted. It is, perhaps, fortunate that the
question has never arisen.
"The British Government, immediately after rejecting the treaty
as amended, proposed to enter into a new treaty with the United
States, similar in all respects to the treaty which they had just refused
to ratify, if the United States would consent to add to the Senate's
clear and unqualified recognition of the sovereignty of Honduras over
the Bay Islands the following conditional stipulation: 'Whenever
and so soon as the Republic of Honduras shall have concluded and
ratified a treaty with Great Britain by which Great Britain shall have
ceded and the Republic of Honduras shall have accepted the said
islands, subject to the provisions and conditions contained in such
treaty. '
"This proposition was, of course, rejected. After the Senate had
refused to recognize the British convention with Honduras of the 27th
August, 1856, with full knowledge of its contents, it was impossible
for me, necessarily ignorant of 'the provisions and conditions' which
might be contained in a future convention between the same parties,
to sanction them in advance.
§ 354.] CLAYTON-BULWER TREATY: MOSQUITO PROTECTORATE. 145
"The fact is that when two nations like Great Britain and the
United States, mutually desirous, as they are, and I trust ever may
be, of maintaining the most friendly relations with each other, have
unfortunately concluded a treaty which they understand in senses
directly opposite, the wisest course is to abrogate such a treaty by
mutual consent and to commence anew. Had this been done
promptly, all difficulties in Central America would most probably
ere this have been adjusted to the satisfaction of both parties. The
time spent in discussing the meaning of the Clayton and Bulwer
treaty would have been devoted to this praiseworthy purpose, and
the task would have been the more easily accomplished because the
interest of the two countries in Central America is identical, being
confined to securing safe transits over all the routes across the
Isthmus."
President Buchanan, annual message, Dec. 8, 1857. (Richardson's Mes-
sages and Papers, V. 441.)
For the text of the convention between Great Britam and Honduras, signed
Aug. 27, 1856, as above stated, see Blue Book, Cor. respecting Cent.
' Am. 1856-1860 (presented to Parliament, 1860), 6.
For the text of the Dallas-Clarendon convention, of Oct. 17, 1856, see the
same Blue Book, p. 24,
See Mr. Cass, Sec. of State, to Lord Napier, Brit, min., April 6, 1858, Cor.
in relation to the ProjKJsed Interoceanic Canal (Washington, 1885), 109,
(3) MOSQUITO PROTECTOEAtE.
§ 354.
*' Under the assumed title of protector of the kingdom of the
Mosquitos — a miserable, degraded, and insignificant
■ ^"^ "^*° ^ ^"" tribe of Indians — she doubtless intends to acquire an
strnctionB to Mr.
^ absolute dominion over this vast extent of sea-coast.
With what little reason she advances this pretension
appears from the convention between Great Britain and Spain, signed
at London on the 14th day of July, 1786. By its first article, 'His
Britannic Majesty's subjects, and the other colonists who have hitherto
enjoyed the protection of England, shall evacuate the country of the
Mosquitos, as well as the continent in general and the islands adjacent,
without exception, situated beyond the line hereafter described as
what ought to be the frontier of the extent of the territory granted by
His Catholic Majesty to the English for the uses specified in the third
article of the present convention, and in addition to the country
already granted to them in virtue of the stipulations agreed upon by
the commissioners of the two crowns in 178.3.' "
Mr. Buchanan, Sec. of State, to Mr. Hise, June 3, 1848, 1 Curtis' Buchanan,
622.
For the text of the London convention of July 14, 1786, see Correspondence
in relation to the Proposed Interoceanic Canal (Washington, 1885), 171,
172. See, also, at the same place. Art. VI. of the treaty of peace between
Great Britain and Spain, signed Sept. 3, 1783.
H. Doc. 551— vol 3 10
146 INTEROCEANIC COMMUNICATIONS. [§ 354.
"The President has read with great concern those parts of yonr
despatches which speak of your intercourse with Mr.
Castellon, tlio representative of Nicarasirua at London.
Clayton. ' ^
The Department has taken into serious consideration
the question respecting the Mosquito shore, and intends giving Mr.
Squier, the newly appointed charge d'affaires to Guatemala, full instruc-
tions upon the subject. Instructions in regard to it will likewise be
sent to you, probably by the next steamer. Meanwhile you are author-
ized to assure Mr. Castellon that the President has determined to
accede to the request of the Government of Nicaragua, by interposing
his good offices for the purpose of endeavoring to induce the British
Government to desist from its pretensions to that territory. You will
also advise him to continue firm in asserting the rights of his Govern-
ment, and not to do any act which might either weaken or alienat^^
those rights."
Mr. Clayton, Sec. of State, to Mr. Bancroft, min. to England, April 30, 1849,
MS. Inst. Great Britain, XV. 385.
"This application has led to an inquiry by the Department into the
claim set up by the British Government, nominally in behalf of His
Mosquito Majesty, and the conclusion arrived at is that it has no rea-
sonable foundation. Under this conviction, the President can never
allow such pretension to stand in the way of any rights or interests
which this Government or citizens of the United States now possess,
or may hereafter acquire, having relation to the Mosquito shore, and
especially to the port and river of San Juan de Nicaragua. He is
decided in the opinion that that part of the American continent hav-
ing been discovered by Spain and occupied by her so far as she deemed
compatible with her interests, of right belonged to her ; that the alleged
independence of the Mosquito Indians, though tolerated bj^ Spain, did
not extinguish her right of dominion over the region claimed in their
behalf, any more than similar independence of other Indian tribes did
or may now impair the sovereignty of other nations, including Great
Britain herself, over many tracts of the same continent; that the
rights of Spain to that region have been repeatedly' acknowledged by
Great Britain in solemn public treaties with that power; that all those
territorial rights in her former American possessions descended to
the states which were formed out of those possessions, and must be
regarded as still appertaining to them in every case where they may
not have been voluntarily relinquished or canceled by conquest
followed by advei-se possession."
Mr. Clayton, Sec. of State, to Mr. Bancroft, min. to England, May 3, 1849,
MS. Inst. Gr. Brit. XV. 386.
" It is understood that New Granada sets up a claim to the Mosquito
shore, based upon the transfer of the military jurisdiction there to the
authorities at Carthagena and Bogota, pursuant to the royal order of
§ 354.] CLAYTON-BULWER TREATY: MOSQUITO PROTECTORATE. 147
His Catholic Majesty of the 30th November, 1803, and upon the 7th
article of the treaty between Colombia and Central America, by which
those Republics engaged to respect their limits based upon the uti
possidetis of 1810. Great Britain also claims that coast in behalf of
the pretended king of the Mosquitos, and Nicaragua claims it as heir
to the late confederation of Central America. With the conflicting
claims of New Granada and Nicaragua we have no concern, and,
indeed, there is reason to believe that they will be amicably adjusted.
We entertain no doubt, however, tTlat the title of Spain to the Mos-
quito shore Avas just, and that her rights have descended to her late col-
onies adjacent thereto. The Department has not hesitated to express
this opinion in the instructions to Mr. Squier, the United States charge
d'affaires to Guatemala, and Mr. Bancroft has been instructed to
make it known to the British Government also. You may acquaint
the minister for foreign affairs of New Granada with our views on this
subject, and may assure him that all the moral means in our power
will be exerted to resist the adverse pretensions of Great Britain to
that region."
Mr. Clayton, Sec. of State, to Mr. Foote, min. to New G-ranada, July 19,
1849, MS. Inst. Colombia, XV. 121.
For an elaborate discussion of tlie subject, see Mr. Clayton, Sec. of State,
to Mr. Squier, May 1, 1849, MS. Inst. Am. States, XV. 64.
"I trust that means will speedily be adopted by Great Britain to
extinguish the Indian title with the help of the Nicaraguans or the
company, within what we consider to be the limits of Nicaragua.
We have never acknowledged and never can acknowledge the exist-
ence of any claim of sovereignty in the Mosquito king or any other
Indian in America. To do so would be to deny the title of the
United States to our own territory. Having always regarded an
Indian title as a mere right of occupancy, we can never agree that
such a title should be treated otherwise than as a thing to be extin-
guished at the will of the discoverer of the country. Upon the rati-
fication of the treaty, Great Britain will no longer have any interest
to deny this principle, which she has recognized in every other case
in common with us. 'Stat nominis umbra,' for she can neither
occupy, fortify, or colonize, nor exercise dominion or control, in any
part of tlie Mosquito coast or Central America. To attempt to do
either of these things after the exchange of ratifications, would inevita-
bly produce a rupture with the United States. By the terms of the
treaty neither party can occupy to protect, nor protect to occupy."
Mr. Clayton, Sec. of State, to Mr. Squier, charge d'affaires to Cent. Am.,
May 7, 1850, MS. Inst. Am. States, XV. 104.
April 19, 1850, the day on which the Clayton-Bulwer treaty was signed, Mr.
Abbott Lawi'ence, American minister in London, sent to Mr. Clayton
an extended report of the results of his investigations of the Mosquito
question. With reference to this (luestiou, Mr. Bancroft Davis, in his
148 INTEROCEANIC COMMUNICATIONS. [§^^4.
notes to the treaties of the United States, says: " It was supposed that
the moat practicable route for a ship-canal was through the State of
Nicaragua, by way of the San Jxian River and the lakes through
which it passes. The eastern coast of Nicaragua was occupied by a
tribe called the Moscjuito Indians, and Lord Palmerston oflScially
informed Abbott Lawrence, the American minister at London, on the
13th of November, 1849, that ' a close political connection had existed
between the Crown of Great Britain and the State and Territory of Mos-
quito for a period of about two centuries. ' This connection was asserted
to have been founded on an alleged submission by the Mosquito King
to the governor of Jamaica. The investigations made under Lawrence's
directions enabled the United States not only to deny that, by public
law, Indians could transfer sovereignty in the manner alleged, but also
to show by contemporary evidence that no such transfer had been made.
He quoted Sir Hans Sloane's account of the matter: ' One King Jeremy
came from the Mosquitoes (an Indian people near the provinces of Nica-
ragua, Honduras, and Costa Rica) ; he pretended to be a king there, and
came from the others of his country to beg of the Duke of Albemarle,
governor of Jamaica, his protection, and that he would send a governor
thither with a power to war on the Spaniards and pirates. This he
alleged to be due to his country from the Crown of England, who had in
the reign of King Charles I submitted itself to him. The Duke of Albe-
marle did nothing in this matter.' And from another publication,
reprinted in Churchill's Voyages, Lawrence was able to give an account
of the original alleged submission in the time of Charles I: " He, the
King, says that his father, Oldman, King of the Mosquito men, was
carried over to England soon after the conquest of Jamaica, and there
received from his brother King a crown and commission, which the
present old Jeremy still keeps safely by him, which is but a cocked hat
and a ridiculous piece of writing that he should kindly use and release
such straggling Englishmen as should choose to come that way, with
plantains, fish, turtle, etc' " (Treaty vol. 1776-1887, p. 1332.)
A long extract from Mr. Lawrence's dispatch is given in Correspondence in
relation to the Proposed Interoceanic Canal (1885), 214.
As to the firing on the American steamer Prometheus by the British brig-of-
war Express, atGreytown, in November 1851, and Lord Granville's dis-
avowal of the act, see message of President Fillmore to the Senate,
Dec. 15, 1851, S. Ex. Doc. 6, 32 Cong. 1 sess.; 41 Br. & For. State
Papers, 759.
" The Port of San Juan de Nicaragua, or Greytown, being, as you are
aware, the terminus on the Atlantic, of the line of
■Webster-Crampton ^^ansit which has been for some time past in operation
arrange en . between New York and San Francisco, is frequently
thronged with passengers between those places. It has, also, received
of late, a considerable increase of settlers, many if not most of whom
are citizens of the United States. Offences against property and persons
must necessarily be of frequent occurrence in that place, and their fre-
quency and enormity are likely to increase in proportion to the absence
of authority competent to prevent and punish them. The power in
existence at Greytown is claimed to be derived from the Mosquito
Indians who have not been, and will not be, acknowledged as an inde-
§354.] CLAYTON-BULWER TREATY : MOSQUITO PROTECTORATE. 149
pendent nation b}' this Gov^ernment. Negotiations are, however, in
progress for the rentoval of all obstacles to the jurisdiction of the
Republic of Nicaragua over that port. Meanwhile a temporary recog-
nition of the existing authority of the place, sufficient to countenance
any well intended endeavors on its part to preserve the public peace
and punish wrong-doers, would not be inconsistent with the policy
and honor of the United States. Under these circumstances, the
President has directed me to make known to you his desire that
instructions be at once given to the commanding officer of the United
States Home Squadron, or to the officer in command of any United
States vessel of war now at Greytown, in conjunction with her Britan-
nic Majesty's Admiral, or such other officer commanding Her Britannic
Majesty's vessels belonging to the squadron under his command, to
see that all reasonable municipal and other regulations in force there
are respected by the vessels and citizens of the United States resorting
thither, and also, should any of those regulations appear to be mani-
festly unreasonable in their nature and improperly enforced, to give
notice thereof, in concert with Her Britannic Majesty's Admiral, or
other officer as above, to the acting authorities and procure them to
to be modified accordingly. The President likewise desires that, if
any tonnage duties or port charges levied on vessels there should be
found to be exorbitant in amount, or discriminating in their nature,
or when collected notoriously applied to improper purposes, you will
instruct one or the other of those officers to protest in accordance (sic)
with Her Britannic Majesty's Admiral or other officer against them,
and to do all that may be proper towards having the abuses corrected.
In view of the success of high public objects, it is important that these
orders should be executed with moderation, temper and firmness, and
the President does not doubt that they will be thus carried out.
Instructions similar to the above will be addressed by Her Britannic
Majesty's Government to the Admiral commanding on the West India
station."
Mr. Webster, Sec. of State, to Mr. Graham, Sec. of Navy, March IT, 1852,
40 MS. Dom. Let. 24.
See, to the same effect, Mr. Webster, Sec. of State, to Commodore Parker,
U. S. N., March i:J, 1852, 41 Br. & For. State Papers, 796.
See also message of President Fillmore, Jan. 21, 1853, S. Ex. Poc. 27, 32
Cong. 2 sess.
"The settlement of the question respecting the port of San Juan de
Nicaragua and of the controversy between the Republics of Costa
Rica and Nicaragua in regard to their boundaries was considered
indispensable to the commencement of the ship-canal between the
two oceans, whicli was the subject of the convention between the
United States and Great Britain of the 19th of April, 1850. Accord-
ingly, a proposition for the same purposes, addressed to the two (4ov-
ernments in that quarter and to the Mosquito Indians, was agreed
150 INTEBOCEANIC COMMUNICATIONS. FS ^•'^4.
to in April last by the Secretary of State and tlie minister of Iler
Britannic Maje8t3\ Besides the wish to aid in reconcilinjj: tlie differ-
ences of the two Ri'piiblies, I engaged in tiie nej2;otiation from a de-
sire to place tlu^ great work of a ship-canal between the two oceans
under one jurisdiction and to establish the important port of San
Juan de Nicaragua under the government of a civilized power. The
proposition in question was assented to by Costa Kica and the Mos-
quito Indians. It has not proved equally acceptable to Nicaragua,
but it is to be hoped that the further negotiations on the subject
which are in train will be carried on in that spirit of conciliation and
compromise which ought always to prevail on such occasions, and
that they will lead to a satisfactory result,"
President Fillmore, annual message, Dec. 6, 1852. (Richardson's Messages
and Papers, V. 166.)
The proposed basis for the settlement of Central American affairs, above
referred to, was signed at Washington, by Mr. Webster. Secretary of
State, and Sir John Crampton, British minister, April 30, 1852. The
Mosquito Indians were to be permitted to reserve for themselves a cer-
tain portion of territory. All the rest of the territory claimed by them,
inchiding Grey town, they were to relinquish to Nicaragua; and they were
to have the right definitively to incorporate themselves into Nicaragua.
The public authority in Grey town was to be exercised by Nicaragua, but
no duty, except tonnage dues necessary for preserving and lighting the
port, was to be charged on goods in transit. A definition was made of
the rights of boundary and navigation of Nicaragua and Costa Rica.
It was agreed, in conformity with Art. II. of the Clayton-Bulwer treaty,
that the distance within which vessels should be exempt from blockade,
detention or capture should be 25 miles from either end of the canal.
The American Atlantic and Pacific Ship-Canal Company was to have a
year to comply with the stipulations of Art. VII. of the Clayton-Bulwer
treaty. The two governments were also to extend their protection to
the Accessory Transit Company. Finally, the American and British
diplomatic representatives in Costa Rica and Nicaragua were to be in-
structed to endeavor to induce those governments to accept the terms
of the arrangement. ( Correspondence in relation to the Proposed Inter-
oceanic Canal (Washington, 1885). 102-104.)
See, also, Mr. Webster, Sec. of State, to Mr. Lawrence, min. to England,
May 14, 1852, Cor. in relation to the Proposed Interoceanic Canal (Wash-
ington, 1885), 13, 242; Mr. Lawrence to Mr. Webster, Jxine 8, 1852, id.
243; Mr. Everett, Sec. of State, to Mr. Kerr, min. to Cent. Am., Dec. 30,
1852, id. 13.
See message of President Fillmore to the Senate, Feb. 18, 1853, accompanied
with corre.spondence with the Britisli minister concerning the inter-
oceanic canal, S. Ex. D(x;. 44, 32 Cong. 2 sess.
"The United States cannot lecognize as valid any title set up by
the people at San Juan derived from the Mosijuito
„ Indians. It concedes to this tribe of Indians only a
Marcy. *'
possessory right — a right to occupy and use foi- them-
selves the country in their possession, but not the right of sovereignty
or eminent domain over it."
§ 3o4.] CLAYTON-BULWER TREATY : MOSQUITO PROTECTORATE. 151
Mr. Marcy, Sec. of State, to Mr. Ingersoll, June 9, 1853, MS. Inst. Gr.
Brit. XVI. 210.
See, also, Mr. Marcy. Sec. of State, to Mr. Buchanan, min. to England, July
2, 1853, H. Ex. Doc. 1, 34 Cong. 1 sess. 42; same to same, Sept. 12. 1853,
id. 49; Dec. 1, 1853, id. 50.
" The political condition of what is called the Mosquito Kingdom has for
several years past been a matter of discussion between the United States
and Great Britain. This Government has uniformly held that the Mos-
quito Indians are a savage tribe, and that though they have rights as
the occupants of the country where they are, they have no sovereign or
political authority there, and no capacity to transfer to individiials an
absolute and permanent title to the lands in their possession, and that
the right of eminent domain — which only can be the source of such
title — is in certain of the Central American States.
" If the emigrants [persons purposing to settle in the Mosquito territory]
should be formed into companies, commanded by officers, and furnished
with arms, such organization would assume the character of a military
expedition, and being hardly consistent with professions of peaceful
objects, would devolve upon this Government the dvity of inquiring
whether it be not a violation of our neutrality act." (Mr. Marcy, Sec.
of State, to Mr. Kinney, Feb. 4. 1855, 43 MS. Dom. Let. 362.)
Mr. Cushing, as Attorney General, in 1853, advised that, although the pre-
tension of a protectorate over the Mosquito Indians was inadmissible,
yet neither party to the Clayton-Bulwer treaty had by that instrument
renounced the right to afford protection in Central America in proper
cases. (8 Op. 436.)
See Dallas' Letters from London, I. 11; T. J. Lawrence's Essays on Int.
Law, 89 et seq. ; Lawrence's Wheaton (1863), 71.
" The British Government deny that it has yielded anything by that
(1850) treaty in regard to its protectorate of the Mosquito Indians. It,
however, professes a willingness, as I understand, to withdraw that pro-
tectorate if the Government of Nicaragua can be induced to ti-eat tlie
Mosquitos fairly and allow tliem some compensation for the territory
now claimed by them, for the relinquishment of their occupancy, and
for the peaceable surrender of it to Nicaragua. Adnntting these
Indians to be what the United States and Nicaragua i-egard them, a
savage tribe, having onlj^ possessory rights to the country they occupy,
and not the sovereignty of it, thej^ cannot fairly be required to yield
up their actual possessions without some compensation. iNIight not
this most troublesome element in this Central American question ])e
removed by Nicaragua in a way just in itself, and entirely compatible
with her national honor '^ Let her arrange this matter as we arrange
those of the same character with the Indian tribes iidiabiting portions
of our own territory."
Mr. Marcy, Sec. of State, to Mr. Borland, min. to Cent. Am., June 17, 1853,
MS. Inst. Am. St. XV. 177.
"The Tnited States (Tovernment, in its correspondence with the
British Government, has denied the pretensions set up for the people
152 INTESKXCftXMC COMMUNI(:3ATIO"NS. [§354%
at San Juan de Nicaragua (or Greytown) to any politr-cal oiigarniz»tAo»
or power derived m any way or for*n from the Mosquit^irs.*^
Ibid.
"The protectorate whicla Great Britaift l>as assurHeA'oYer the Mos-
<quito Indians is a most palpable ilift'ingemeait of her treaties with
Spain, to which reference has just, been made; and the authority she
is there exercising, under pretense of this protectorate, is in deroga-
tion (yf the soveteign jfights of several of the C^entral American States,^
and centrary ^o tlie manifest spirit and intention of the treaty of
.April 19, 1850, with the United States.
"Though, ostensibly, the direct object of the Clayton and Bulwer
treaty was to guarantee the free and common use of the contemplated!
ship-canal across the Isthmus of Darien, and to secure such use to all
nations by mutual treaty stipulations to that effect, there were other
and highly important objects sought to be accomplished by that con-
vention. The stipulation regarded most of all,, by the United States,
is that for discontinuing the use of her assumed protectorate of the
Mosquito Indians, and with it the removal of all pretext whatever for
interfering with the territorial arrangements which the Central Amer-
ican States may wish to make among themselves. It was the inten-
tion, as it is obviously the import, of the treaty of April 10, 1850, to
place Great Britain under an obligation to cease her interpositions in
the affairs of Central America, and to confine herself to the enjoyment
of her limited rights in the Belize. She has, by this treaty of 1850,
obligated herself not to occupy or colonize any part of Central Ame^r--
ica, or to exercise any dominion therein. Notwithstanding these ssjllip-
ulations, she still asserts the right to hold possession of, and to» exer-
cise control over large districts of that country and important, islands.
Jn the Bay of Honduras, the unquestionable appendages of the Cen-
tral American States. This jurisdiction is not less mischievous in its.
effects, nor less objectionable to us, because it is covertly exercised!
(partly, at least) in the name of a miserable tribe of Indians, who have,,
in reality, no political organization, no actual government, not eveni
the semblance of one, except that which is created by British author-
ity and upheld by British power."
Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England;, JtJy 8, ItiTS,
H. Ex. Doc. 1, 34 Cong. 1 sess. 42.
"So far as I am aware, this Government has never had occasion to
take the question Oif the proprietorship of those [the Mosquito] islands
inrto cojisideration. I cannot say, beforehand, what would be the
opinion of the Department on the subject, as we make it a rule to
express no opinion upon a hypothetical case.
^'It is obvious, however, from the names of the islands, th.a^.tihey.-
were discovered by the Spaniards. Though this, unaccomptswied; by,-
aetua) QOC\»paney, may not have imparted to Spain any rii^hiti oi omut^
§354.] CLAYTON-BULWER TREATY; MOSQUITO QUESTION. 153
ership to the exclusion of the citizens or subjects of other countries,
yet, as the islands lie within a short distance of the Mosquito coast,
it is quite probable that, if they had, for any purpose, been visited
by persons not owing allegiance to Spain, she might have endeavored
to prevent this. It is more certain that she would have endeavored
to prevent any other nation from occupying them for military or
naval purposes. The rights of sovereignty possessed by Spain in
Central America extended, as we claim, over the territory actually
conquered or obtained by contract from the aborigines, as well as
over that the Indian title to which had not been extinguished. The
British Government contends that the Indian title to the Mosquito
coast has never been extinguished; and partly on that ground asserts
the right to protect the inhabitants of that coast. It is not unlikely
that that Government might also contend that the islands to whiclii
you refer belong by right of proximitj' to the Mosquito shore and^
therefore, that its right of protection extends to them also."
Mr. Marcy, Sec. of State, to Messrs. Thompson and Ondeshnys, Dec. 37,
1853, 42 MS. Dom. Let. 124.
"In relation to the Clayton and Bulwer treaty, about which so
much is said in your dispatches, I have only to remark that this Gov-
ernment considers it a subsisting contract, and feels bound to observe
its stipulations so far as by fair construction they impose obligations
upon it.
"If Great Britain has failed, or shall fail, on her part to fulfill the
obligations she has therein assumed, or if she attempts to evade them
by a misconstruction of that instrument, the discussions that inay
arise on these subjects must necessarily take place between tlte par-
ties to it. The views taken of that treaty by the United St<ites,. and
your course in relation to it, pointed out in your first instructions,
will be observed until j^ou receive notice of their modifieation. In
these iustructions you were furnished with the viewsi of one of the
contracting parties (Great Britain), but at the same time you were;
informed that the United States did not concur in them. In the;
negotiations at London, in regard to the affairs of Central America,
the meaning of that instrument will come directly under disonssion.
So far as respects your mission, you will regaixl it as meaning what
the American negotiator intended when he entered into it, and what
the Senate must have undei'stood it to mean when it was ratified, viz,
that by it Great Britain came under engagements to the United States
to recede fi"om her asserted protectorate of the Mosquito Indians, and
to cease to exercise dominion or control in any part of C^entral America.
If slie had any colonial possessions therein at the date of the treaty--,,
she was bound to abandon tliem, and equally bound to abstaii\ trom;
colonial acquisitions in that region. In your official intercou,rse^ withj
the States of Central America, you will present this const ru<?tijOi<i <(>>£'
the treaty as the one given to it by your Government.
154 INTEROCEANIC COMMUNICATIONS. [§354.
"It is believed that Great Britain has a qualified right over a tract
of country called the Belize, from which she is not ousted by this
treaty, Ix^cause no part of that tract, when restricted to its proper
limits, is within the boundaries of C^entral America."
Mr. Marcy, Sec. of State, to Mr. Borland, Dec. 30, 1853, Correspondence in
relation to the Proposed Interoceanic Canal (Washington, 1885), 247.
*'It would be a vain labor to trace the history of the connection of
(xreat Britain with the Mosquito shore and other por-
Buchanan-ciaren- tions of Central America, previous to her treaties with
donnegotiations; g j^^ ^^ -^^^3 ^^^^ ^^gg .^j^.^ connection doubtless
Bucaanan 8 state-
ment of Jan 6 0"ginatedfromherdesire to break down the monopoly
1854. of trade which Spain so jealously enforced with her
American colonies, and to introduce into them British
manufactures. The attempts of Great Britain to accomplish this
object were pertinaciously resisted by Spain, and became the source
of continual difficulties between the two nations. After a long period
of strife these were happily terminated by the treaties of 1783 and
1786, in as clear and explicit language as ever was employed on any
similar occasion; and the history of the time rendered the meaning
of this language, if possible, still more clear and explicit.
"Article VI. of the treaty of peace of 3d September, 1783, was very
distasteful to the King and Cabinet of Great Britain. This abun-
dantly^ appears from Lord .John Russell's ' Memorials and Correspond-
ence of Charles James Fox. ' The British Government, failing in their
efforts to have this article deferred for six months, finally yielded a
most reluctant consent to its insertion in the treaty,
"Why this reluctant consent? Because Article VI, stipulates that,
with the exception of the territory between the river Wallis or Belize
and the Rio Hondo, within which permission was granted to British
subjects to cut log- wood, 'all the English who may be dispersed in any
other parts, whether on the Spanish continent ("continente Espagnol"),
or in any of the islands whatsoever dependent on the aforesaid Span-
ish continent, and for whatever reason it might be, without exception,
shall retire within the district above described in the space of eighteen
months, to be computed from the exchange of ratifications.'
"And the treaty further expressly jjrovides, that the permission
granted to cut logwood 'shall not.be considered as derogating, in any
wise, from his [Catholic Majesty's] rights of sovereigntj'^ ' over this
logwood district; and it stipulates, moreover, 'that if any fortifica-
tions should have been actually heretofore erected within the. limits
marked out, His Britannic Majesty shall cause them all to be demol-
ished, and he will order his subjects not to build any new ones.'
"But, notwithstanding these provisions, in the opinion of Mr. Vox,
it was still in the power of the British Government 'to put our [their]
own interpretation upon the words "continente Espagnol," and to
§354. I CLAYTON-BULWER TREATY: MOSQUITO QUESTION. 155
determine, upon prudential considerations, whether tlie Mosqnito
shore conies under that description or not.'
"Hence the necessity for new negotiations wliich should determine,
precisely and expressly, the territory embraced by the treaty of 1783.
These produced the convention of the lith of July, 1786; and its very
first article removed every doubt on the subject. This declared that
' His Britannic Majesty's subjects, and the other colonists who have
hitherto enjoyed the protection of England, shall evacuate the coun-
try of the Mosquitos, as well as the continent in general, and the
islands adjacent, without exception,' situated beyond the new limits
prescribed by the convention within whicli British subjects were to be
permitted to cut, not only logwood but mahogany and all other wood;
and even this district is 'indisputably acknowledged to belong of right
to the Crown of Spain.'
"Thus, what was meant by the 'continente Espagnol' in the treaty
of 1783, is defined, beyond all doubt, by the convention of 1786; and
the sovereignty of the Spanish King over the Mosquito shore, as well
as over every other portion of the Spanish continent and the islands
adjacent, is expressly recognized.
"It was just that Great Britain should interfere to protect the Mos-
quito Indians against the jiunishment to which they liad exposed them-
selves as her allies from their legitimate and acknowledged sovereign.
Article XIV. of the convention, therefore, provides that 'His Catholic
Majesty, prompted solely by motives of humanity, promises to the
King of England that he will not exercise any act of severity against
the Mosquitos inhabiting in part the countries which are to be evacu-
ated by virtue of the present convention, on account of tlie connec-
tions which may have subsisted between the said Indians and the
English: and His Britannic Majest}-, on his part, will strictly prohibit
all his subjects from furnishing arms or warlike stores to tlie Indians
in general situated upon the frontiers of the Spanish possessions.'
"British honor required that these treaties with Sjiain should be
faithfully obs(n-ved ; and from the contemporaneous liistory no doubt
exists but that this was done; that the orders required by Article XV.
of the convention were issued by the British (irovei-nment, and that
they were strictly carried into execution.
" In this connection a reference to the significant proceedings in the
House of Lords on the 2(5th of Mai-ch, 1787, ought not to be omitted.
On that day a motion was made by Lord Kawdon ' tliat the terms of the
convention of July 14, 1786, do not meet the favorable opinion of this
House.' The motion was discussed at considerable lengtli, and with
great ability. The task of defending the ministry upon this occasion
was undertaken b}^ Lord Chan(!ellor Thurlow, and was most trium-
phantly performed. He abundantly justified the ministry for liaving
surrendered the Mosquito shore to Spain ; and proved ' that the Mos-
quitos were not our allies; they were not a people we were bound by
156 TNTEROCEANIC COMMUNICATIONS. [§ 354.
treaty to protect.' His lordship repelled the ar«:uraeTit that the Settle-
meut was a regular and legal Settlement, with some sort of indigna-
tion; and so far from agreeing, as had been contended, that we had
remained uniformly in the quiet and unquestionable possession of our
claim to the territory, he called upon the noble Viscount Stormont to
declare, as a man of honor, whether he did not know the contrary.
"Lord Rawdon's motion to condemn the convention was rejected bj-
a vote of 53 to 17.
"It is worthy of special remark that all sides of the House, whether
approving or disapproving the convention, proceeded upon the express
admission that it required Great Britain, employing its own language,
'to evacuate the country of the Mosquitos.' On this question the
House of Lords were unanimous.
"At what period, then, did Great Britain renew her claims to 'the
country of the Mosquitos, as well as the continent in general ; and the
islands adjacent without exception?' It certainly was not in 1801,
when, under the Treaty of Amiens, she acquired the island of Trini-
dad from Spain, without any mention whatever of further acquisi-
tions in America. It certainly was not in 1809, when she entered into
a treaty of alliance, offensive and defensive, with Spain, to resist the
Emperor Napoleon in his attempt to conquer the Spanish monarchy.
It certainly was not in 1814, when the commercial treaties which had
previously existed between the two powers, including, it is presumed,
those of 1783 and 178G, were revived. On all these occasions there
was no mention whatever of any claims of Great Britain to the Mos-
quito Protectorate, or to any of the Spanish- American territories which
she had abandoned. It was not in 1817 and 1819, when acts of the
British Parliament (57 and 59 Geo. III.), distinctly acknowledged
that the British Settlement at Belize was ' not within the territory and
dominion of His Majesty,' but was merely 'a Settlement for certain
purposes, in the possession and under the protection of His Majesty;*
thus evincing a determined purpose to observe with the most scrupu-
lous good faith the treaties of 1783 and 1786 with Spain.
"In the very sensible book of Captain Bonnycastle, of the corps of
British Royal Engineers, ' On Spanish America,' published at London,
in 1818, he gives no intimation whatever that Great Britain had
revived her claim to the Mosquito Protectorate. On the contrary, he
describes the Mosquito shore as 'a tract of country which lies along
part of the northern and eastern shore of Honduras,' which had ' been
claimed by the British.' He adds, 'the English held this country for
eighty years, and abandoned it in 1787 and 1788.'
"Thus matters continued until a considerable period after 1821, in
which year the Spanish pi'ovinces composing the captain-generalship
of Guatemala asserted and maintained their independence of Spain.
It would be a work of supererogation to attempt to prove, at tliis
period of the world's history, that these provinces having, by a sue-
§354.] CLAYTON-BULWER TREATY: MOSQUITO QUESTION. 157
cessf ul revolution, become independent states, succeeded within their
respective limits to all the territorial rights of Spain. This will
surely not be denied by the British Government, which took so noble
and prominent a part in securing the independence of all the Spanish-
American provinces.
"'Indeed, Great Britain has recorded her adhesion to this principle
of international law in her treaty of December 26, 1826, with Mexico,
then recently a revolted Spanish colony. By this treaty, so far from
claiming an}^ right beyond the usufruct which had been conceded to
her under the convention with Spain in 1786, she recognizes its con-
tinued existence and binding- effect, as between herself and Mexico,
iby obtaining and accepting from the Government of the latter, a stipu-
lation that British subjects shall not be 'disturbed or molested in the
peaceable possession and exercise of whatever rights, privileges, and
immunities, they have at anytime enjoyed within the limits described
and laid down ' by that convention. Whether the former Spanish
sovereigntj' over Belize, subject to the British usufruct, reverted of
right to Mexico or to Guatemala, may be seriously questioned ; but,
in either case, this recognition by Great Britain is equally conclusive.
" And here it may be appropriate to observe that Great Britain still
continues in possession not only of the district between the Rio Hondo
and the Sibun, within which the King of Spain had granted her a
license to cut mahogany and other woods; but the British settlers have
extended this possession south to the river Sarstoon, one degree and a
half of latitude beyond ' the limits described and laid down ' by this
convention. It is presumed that the encroachments of these settlers
south of the Sibun have been made without the authority or sanction
of the British Crown, and that no difficulty will exist in their removal.
"Yet, in view of all these antecedents, the island of Ruatan, belong-
ing to the State of Honduras, and within sight of its shores, was cap-
tured, in 1841, by Colonel McDonald, then Her Britannic Majesty's su-
perintendent at Belize, and the flag of Honduras was hauled down, and
that of Great Britain was hoisted in its place. This small State, inca-
pable of making any effectual resistance, was compelled to submit,
and the island has ever since been under British control. What makes
this event more remarkable is, that it is believed a similar act of vio-
lence had been committed on Ruatan by the superintendent of Belize
in 1835; but on complaint by the Federal Government of the Central
American States then still in existence, the act was formalh' disavowed
by the British Government, and the island was restored to the authori-
ties of the Republic.
"No question can exist but that Ruatan was one of the ' islands ad-
jacent' to the American continent which had been restoi'ed by Great
Britain to Spain under the treaties of 1783 and 178(). Indeed, the
most approved British gazetteers and geographers, up till the present
date, have borne testimony to this fact, apparently without information
158 INTEROCEANIC COMMUNICATIONS. [§ ^•'*^-
from that liitherto but little known portion of the worl<l, that the island
had again been seized by Her Majesty's superintendent at Belize, and
was now a possession elaimed by Great Britain.
"When Great Britain determined to resume her dominion over the
Mosquito shore, in the name of a protectorate, is not known with any
degree of certainty in the United States. The first information on
the subject in the Department of State, at Washington, was contained
in a dispatch of the 20th January, 1842, from William S. Murphy,
Esq., special agent of the American Government to Guatemala, in
which he states that in a conversation with Colonel McDonald at
Belize, the latter had informed him that he had discovered and sent
documents to England, which caused the British Government to
revive their claim to the Mosquito territory.
"According to Bonnycastle, the Mosquito shore 'lies along part of
the northern and eastern shore of Honduras;' and by the map which
accompanies his work, extends no further south than the mouth of
the river Segovia, in about 12° north latitude. This respectable
author certainly never could have imagined that it extended south
to San Juan de Nicaragua, because he describes this as the principal
seaport of Nicaragua on the Caribbean Sea, says there are ' three por-
tages ' between the lake and the mouth of the river, and ' these carry-
ing places are defended, and at one of them is the fort San Juan, called
also the Castle of Nuestra Seiiora, on a rock, and verj^ strong; it has 36
guns mounted, with a small batter^^ whose platform is level with the
water; and the whole is inclosed on the land side by a ditch and ram-
part. Its garrison is generallj'^ kept up at 100 infantry, 16 artillery-
men, with about 60 of the militia, and is provided with bateaux, which
row guard every night up and down the stream.' Thus, it appears,
that the Spaniards were justly sensible of the importance of defend-
ing this outlet from the lake of Nicaragua to the ocean; because, as
Captain Bonnycastle observes, 'this port (San Juan) is looked upon
as the key of the Americas; and with the possession of it and Realejo,
on the other side of the lake, the Spanish colonies might be paralyzed,
bj^ the enemy being then master of the ports of both oceans,' He
might have added, that nearly 60 years ago, on the 26th February,
1796, the port of San Juan de Nicaragua was established as a port of
entry, of the second class, by the King of Spain. Captain Bonnycastle,
as well as the Spaniards, would have been greatly surprised had they
been informed that this port was a part of the dominions of His
Majesty the King of the Mosquitos, and that the cities and cultivated
territories of Nicaragua, surrounding the lakes Nicaragua and Mana-
gua, had no outlet to the Caribbean Sea, except by his gracious per-
mission.
"It was, therefore, with jirofound surprise and regret [that] the
Government and people of the United States learned that a British
force, on the 1st of January, 1848, had expelled the State of Nicaragua
§354.] CLAYTON-BULWEB TEEATY : MOSQUITO QUESTION. 159
from San Juan, had hauled down the Nicaraguan flag, and had raised
the Mosquito flag in its place. The ancient name of the town, San
Juan de Nicaragua, which had identified it in all former times as
belonging to Nicaragua, was on this occasion changed, and thereafter
it became Greytown.
"These proceedings gave birth to serious apprehensions throughout
the United States that Great Britain intended to monopolize for her-
self the control over the different routes between the Atlantic and the
Pacific, which, since the acquisition of California, had become of vital
importance to the United States. Umler this impression, it was
impossible that the American Government could any longer remain
silent and acquiescing spectators of what was passing in Central
America.
"Mr. Monroe, one of our wisest and most discreet Presidents,
announced in a public message to Congress, in December, 1823, that
' the American continents, by the free and independent condition
which they have assumed and maintained, are henceforth not to be
considered subjects for future colonization by any European powers.'
This declaration has since been known throughout the world as the
'Monroe Doctrine,' and has received the public and official sanction of
subsequent Presidents, as well as of a large majority of the American
people.
"Whilst this doctrine will be maintained whenever, in the opinion
of Congress, the peace and safety of the United States shall render
this necessary, yet to have acted upon it in Central America might
have brought us into collision with Great Britain — an event always
to be deprecated, and, if possible, avoided. We can do each other
the most good, and the most harm, of any two nations in the Morld;
and, therefore, it is our strong mutual interest, as it ought ever to
be our strong mutual desire, to remain the best friends. To settle
these dangerous questions, both parties wisely resorted to friendly nego-
tiations, which resulted in the convention of April, 1850. Maj' this
prove to be instrumental in finally adjusting all questions of difficulty
between the parties in Central America, and in perpetuating their
peace and friendship !
"Surely the Mosquito Indians ought not to prove an obstacle to so
happy a consummation. Even if these savages had never been actu-
ally subdued by Spain, this would give them no title to rank as an
independent state, without violating the principles and the practice of
every European nation, without exception, which has acquired terri-
tory on the continent of America. They all mutuallj^ recognized the
right of discovery, as well as the title of the discoverer to a large
extent of interior territory, though at the moment occupied by fierce
and hostile tribes of Indians. On this principle the wars, the negotia-
tions, the cessions, and the jurisprudence of these nations were
founded. The ultimate dominion and absolute title belonged to them-
160 INTEBOCEANIC COMMUNICATIONS. [§ 354.
selves, although several of them, and especially Great Britain, con-
ceded to the Indians a right of mere occupancy, which, however,
could onl}' be extinguished by the authority of the nation within
"whose dominions these Indians were found. All sales or transfers of
territory made by them to third parties were declared to be absolutely
void; -and this was a merciful rule even for the Indians themselves,
because it prevented them from being defrauded by dishonest indi-
viduals.
""No nation has ever acted more steadily upon these principles
than Great Britain; and she has solemnly recognized them in her
treaties with the King of Spain, of 1783 and 1786, by admitting his
sovereignty over the Mosquitos.
"Shall the Mosquito tribe of Indians constitute an exception from
this hitherto universal rule? Is there anything in their character or
in their civilization which would enable them to perform the duties
and sustain the responsibilities of a sovereign state in the family of
nations?
" Bonny castle says of them, that they ' were formerly a very power-
ful and numerous race of people, but the ravages of rum and the
smallpox have diminished their number very much.' He represents
them, on the authority of British settlers, as seeming 'to have no
other religion than the adoration of evil spirits.' The same author
also states, that 'the warriors of this tribe are accounted at 1,500.'
This possibly may have been correct in 1818, when the book was pub-
lished, but at present serious doubts are entertained whether they
reach much more than half that number. The truth is, they are now
a debased race, and are degraded even below the common Indian
standard. They have acquired the worst vices of civilization from
their intercourse with the basest class of the whites, without any of
its redeeming virtues. The Mosquitos have been thus represented by
a writer of authority, who has recently enjoyed the best opportunities
for personal observation. That they are totally incapable of main-
taining an independent civilized government is beyond all question.
Then in regard to their so-called King, Lord Palmerston, in speaking
of him to Mr. Rives, in September, 1851, says, 'They had what was
called a King, who, by-the-bye,' he added, in a tone of pleasantry,
'was as much of a king as you or I.' And Lord John Russell, in his
dispatch to Mr. Crampton of the 19th of January, 1853, denominates
the Mosquito Government as 'a fiction;' and speaks of the King as a
person 'whose title and power are, in truth, little better than nominal.'
"The moment Great Britain shall withdraw from Blewfields, where
she now exercises exclusive dominion over the Mosquito shore, the
former relations of the Mosquitos to Nicaragua and Honduras as the
successors of Spain, will naturally be restored. When this event
shall occur, it is to be hoped that these States in their conduct towards
the Mosquitos and the other Indian tribes within their territories, will
§354.] CLAYTON-BULWER TREATY: MOSQUITO QUESTION. 161
follow the example of Great Britain and the United States. Whilst
neither of these has ever acknowledged, or permitted any other nation
to acknowledge, any Indian tribe, within their limits, as an independ-
ent people, they have both recognized the qualified right of such
tribes to occupy the soil, and as the advance of the white settlements
rendered this necessary, have acquired their title by a fair purchase.
"Certainly it cannot be desired that this extensive and valuable
Central American coast, on the highway of nations between the Atlan-
tic and Pacific, should be appropriated to the use of 3,000 or 4,000
wandering Indians, as an independent state, who would use it for no
other purpose than that of hunting and fishing, and savage warfare.
If such an event were possible, the coast would become a retreat for
pirates and outlaws of every nation, from whence to infest and disturb
the commerce of the world on its transit across the Isthmus ; and but
little better would be its condition should a new independent state be
established on the Mosquito shore. Besides, in either event, the pres-
ent Central American States would deeply feel the injustice which
had been done them in depriving them of a portion of their territories;
they would never cease in attempts to recover their rights, and thus
strife and contention would be perpetuated in that quarter of the
world where it is so much the interest both of Great Britain and the
United States that all territorial questions should be speedily, satis-
factorily, and finally adjusted."
Statement of Mr. Buchanan, min. to England, for the Earl of Clarendon,
Jan. 6, 1854, 46 Br. & For. State Papers, 244, 247; H. Ex. Doc. 1, 34
Cong. 1 sess. 55.
To the foregoing statement by Mr. Buchanan, Lord Clarendon
Lord Clarendon's replied by a statement dated May 2, 1854. This
statement of May statement may be summarized as follows:
2, 1854.
1. That, although Great Britain held no "possessions" in the Mos-
quito territor}', she undoubtedly exercised a great and extensive influ-
ence over it as the "protecting ally" of the Mosquito chief or king,
who had "occasionally been even crowned at Jamaica under the
auspices of the Briti.sh authorities;" that the United States would
scarcely expect Great Britain to enter into explanations concerning
acts committed nearly forty years before, in a matter in which no
right or possession of the United States was involved ; and that tlie
(iovornment of Spain, after the peace of 1815, never raised any ques-
tion with respect to the Mosquito protectorate.
2. That Great Britain had not by her treaty with Mexico, or other-
wise, recognized as a principle that the engagements between herself
and Spain were necessarily transferred to every fraction of theSimnish
monarch}^ which came to exist on a distinct and independent basis; that
Great Britain liad merely stipulated in the treaty witli ^Mexico that
H. Doc. 551— vol 3 11
162 INTEKOCEANIC COMMUNICATIONS. [§354.
British subjects should not be woree off under independent Mexico
than in Mexico as a Spanish province.
3. That, even admitting that it might in some cases be expedient to
recognize the rights and obligations of old Spain as having become
vested in the new Spanish American states, it was to be observed that
no remonstrance was made by any of the Spanish-American republics
against the British protectorate over Mosquito till many years after
its existence became known to them, and that, when such remon-
strances were made, they were made by several of those governments,
BO that, if Great Britain had withdrawn, the right of any of them to
occup3^ the territory would have been disputed by the others.
4. That, up to the end of 1849, the United States, although informed
in 1842 of the existence of the Mosquito protectorate, made no allusion
to it in communications to the British Government, notwithstanding
the fact that, as appeared by papers submitted to Congress, some
action as against Great Britain had repeatedly been solicited by the
authorities of Nicaragua ; and that, even with respect to the capture
of Greytown by British forces acting in behalf of the Mosquito king,
the American minister in London was not authorized to take any steps.
5. That, with regard to the doctrine laid down by President Monroe
in 1823, concerning future colonization on the American continent
by European states, it could be viewed onlj^ as the dictum of the dis-
tinguished personage who announced it, and not as an international
axiom which ought to regulate the conduct of European states.
6. That the doctrine that the Indians were incapable of exercising
the rights of sovereign powers was one on which each state must main-
tain its own policy and follow the dictates of its own conscience, and
that the habits of past times could not be taken as an invariable guide
for anj' future j)olicy, as was shown by the case of the slave-trade.
7. That, although Great Britain never claimed any sovereignty
over Mosquito, she asserted that the treaty of 1850 did not and was
not meant to annihilate her protectorate, but only to confine its
powers and limit its influence; and that the treaty, while it did not
"recognize" any protectorate, clearly acknowledged (Art. I.) the pos-
sibility of Great Britain or of the United States affording protection
to Mosquito or to any Central American state.
8. That it never had been held that territories or kingdoms which
were neutralized might not be defended by other kingdoms, at the
desire and request of the neutral states, and that it could not be
maintained that the bar to colonizing and fortifying was a bar to all
protection.
9. That Great Britain and the United States bound themselves to
protect certain canals or railways which might be formed through
various independent states, but that they did not by tliis agreement
to give protection acquire any right of sovereignty or occuxjation over
such canals or railways, although they carefully excluded themselves
§ 354.] CLAYTON-BULWER TREATY : MOSQUITO QUESTION. 163
from liaving any exclusive control over them and from acquiring any
exclusive privileges.
10. That the correctness of the British construction was further
shown by the fact that, soon after the treat}^ was ratified, her Majesty's
minister at Washington entered into further negotiations with the
United States relative to the position of Mosquito, and that the inter-
pretation above expressed was at once accepted by Mr. Webster; and
that the fact that Great Britain was not at any time animated by the
object of obtaining any peculiar influence or control over the San
Juan river or the canal was shown by the circumstance that the object
of the negotiations was the withdrawal of her protection from Grey-
town and the adjoining territory on conditions beneficial to her, only
so far as they tended to maintain a state of peace and tranquillity in
the part of the world to which they related.
11. That it never was in the contemplation of either government
tliat the treaty of 1850 should interfere in any way with her Majesty's
settlement at Belize or its dependencies.
12. That the limits of the British settlement at Belize could not be
restricted to the boundaries under the treaty of 1786, not only because
the treaties with old Spain could not be held to be necessarily bind-
ing witli respect to detached portions of the old monarclij', but also
because the treaty of 1786 was put an end to b}" a subsequent state
of war between Great Britain and Spain, during which the boundaries
of the British settlement in question were enlarged.
13. That, as to Ruatan and the adjoining islands, all that could be
debatable concerning them was, whether they were dei3endencies of
Belize or attached to some Central American state; and that it could
not be disputed that, whenever Ruatan had been permanently occu-
pied, either in remote or recent times, by anything more than a mili-
tary guard or flagstalf, tlie occupation had been bj^ British subjects.
14. That the practical question at issue relative to Greytown and
the adjacent territory was not whether Great Britain should exercise
dominion over it, but whether Nicaragua or souie other independent
state should be put into possession of it in such manner as to preserve
the honorable obligations of Great Britain, the peace of Central
America and the safety of the Mosquito Indians, or in such manner
as to ijroduce hostilities between Nicaragua and Costa Rica and the
destruction of the Mosquito i^eople.
15. That, as the pretensions of Great Britain to tlie islands of
Ruatan and Bonaccawere not of recent date and were not (luestioned
by the United States in LS50, it could not be admitted that an altera-
tion in the internal form of their government was a violation of the
treaty or afforded a just cause of remonstrance to tlie United States.
Statement of Lord Clarendon for Mr. Buchanan. May 'J. 18r)4. 40 Brit. &
For. State Pap. 255; H. Ex. Doc. 1 , :U Cong, t sess. HO.
164 INTEROCEANIC COMMUNICATIONS. [§ 355.
For extended " Remarks "" of Mr. Buchanan, July 23, 1854, in reply to Lord
Clarendon's statement, see 46 Brit. & For. State Pap. 272: H. Ex. Doc.
1, 34 Cong. 1 sess. 93.
"Aiirotectorate necessarily implies theactual existeuceof a sovereign
authority in the protected power; but wliere there is,
in fact, no such authority there can be no protectorate.
The Mosquitos are a convenience to sustain British pretensions, but
cannot be regarded as a sovereign state. I^ord Palnierston, as was
evinced by his remark to Mr. Rives, took this view of the political
condition of the Mosquitos, and it is so obviously correct that the Brit-
ish Government should not be surprised if the United States consider
the subject in the same light."
Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England, Aug. 6, 1855,
H. Ex. Doc. 1, 84 Cong. 1 sess. 69, 71, where the full text is given.
See President Pierce's annual message, Dec. 31, 1855. H. Ex. Doc. 1, 34 Cong.
1 sess. , and the accomi^anying correspondence in relation to the various
questions under the Clayton-Bulwer treaty.
See, also, on the same subject, President Pierce's message of Feb. 14, 1856,
S. Ex. Doc. 25, 34 Cong. 1 sess.
See S. Ex. Docs. 12 and 27, 32 Cong. 2 sess., and S. Ex. Doc. 1, 34 Cong.
1 sess.; J. C. B. Davis' Treaty Notes (Treaty Vol. 1776-1887), 1332.
"The President cannot himself admit as true, and therefore cannot
under any possible circumstances advise the Republic of Nicaragua to
admit, that the Mosquito Indians are a state or a government any more
than a band of Maroons in the island of Jamaica are a state or gov-
ernment. Neither, of course, can he admit that any alliance or pro-
tective connection of a political nature may exist for any purpose
whatever between Great Britain and those Indians."
Mr. Marcy, Sec. of State, to Mr. Dallas, min. to England. July 26, 1856, MS.
Inst. ar. Brit. XVII. 1, 17.
See Mr. Marcy, Sec. of State, to Mr. Dallas, min. to England, No. 24. July
28, 1856; No. 31, Sept. 26, 1856; confidential, Sept. 26,1856; No. 38, Nov.
10, 1856: MS. Inst. Gr. Br. XVII. 26,33,41,49.
See, also, Mr. Cass, Sec. of State, to Mr. Dallas, No. 57, March 21, 1857, MS.
Inst. Gr. Br. XVII. 67.
3. Historical summary, 1851-1858.
§ 355.
"I have had the lionor to receive the copy which j'^our lordship did
me the favor to send me of Lord Malmesbury's dis-
Mr. Cass to ord ^^^^,]^ ^^ your lordship of August 18, in reference to
1868^'^' °' ' ^^^ William Ouseley's mission, and have submitted
it to the consideration of the President. From the
statement of Lord Malmesbury that the British Government has no
remaining alternative but that of leaving the Cabinet of Washington
§355,] CLAYTON-BULWER TREATY : SUMMARY; 1851-1858. 165
to originate any further overtures for an adjustment of these contro-
versies, it is quite obvious tliat the position of the President on this
subject is not correctly understood by Her Majesty's Government.
Since the announcement by your lordship in October, 1857, of Sir
William Ouseley's special mission, the President has awaited not so
much any new proposition for the adjustment of the Central American
question as the statement in detail which lie had been led to expect
of the method by which Sir William Ouseley was to carry into effect
the previous proposition of the British Government. To make this
plain, your lordship will pardon me for making a brief reference to
what has occurred between the two governments in respect to Central
America since the ratification of the Clayton-Bulwer treaty of 1850.
"While the declared object of that convention had reference to the
construction of a ship-canal, by the way of San Juan and the lakes of
Nicaragua and Managua, from the Atlantic to the Pacific oceans, yet
it avowed none the less plainly a general principle in reference to all
practicable communications across the Isthmus, and laid down a dis-
tinct policy by which the practical operation of this j)rinciple was
likely to be kept free from all embarrassment. The principle was
that the interoceanic routes should remain under the sovereignty of
the states through which they ran, and be neutral and free to all
nations alike. The policy was, that in order to prevent any govern-
ment outside of those states from obtaining undue control or influence
over these interoceanic transits, no such nation should 'erect or main-
tain any fortifications comnmnding the same, or in vicinity thereof,
or should occupy or fortify or colonize or assume or exercise any
dominion over Nicaragua, Costa Rica, the Mosquito coast, or any
part of Central America.'
"So far as the United Stiites and Great Britain were concerned,
these stipulations were expressed in unmistakable terms, and in ref-
erence to other nations it was declared that the contracting parties in
this convention engage to invite every state with which botli oi- either
have friendly intercourse to enter into stipulations with them similar
to those which they have entered into with each other. At that time
the United States had no jiossessions whatever in Central America
and exercised no dominion there. In respect to this (Government,
therefore, the provisions of the first article of the treaty could oper-
ate only as a restriction for the future, but (Great Britain was in the
actual exercise of dominion over nearly the whole eastern coast of
that country, and in relation to her this ai-ticle had a present as well
as a prospective operation. She was to abandon the occupancy wliich
she already had in Ceiiti-al America, and was neither to make ac<iui-
sitions oi" erect fortifications or exercistMlominion there in the future.
In other words, she was to place herself in the samc^ i)ositi()n, with
respect to i)ossessions and dominion in Central America, wliieli was
to be occupied by the United States, and which both the contracting
166 INTEKOCEANIC COMMUNICATIONS. [§ 355.
I^arties to the treaty cngaji^ed that tlicy would ondoavor to induce
otlier nat ions to occupy. This was the treaty as it was understood
and assented to by the United States, and this is the treaty as it is
still understood by this Government. Instead, however, of giving?
effect to it in this sense, the British Government proceeded, in 18.51,
only a few months after the signature to the treaty, to establish a new
British colon}' in Central America under the name of the ' Buy Islands ' ;
and when this Government expressed its great sur[)rise at this jjro-
ceeding and at the failure of Great Britain to comply with the terms
of the convention, Her Majesty's Government replied that the islands
already belonged to Great Britain at the date of the treaty, and thaT.
the convention, in their view of it, interfered with none of their exist-
ing possessions in Central America, but was wholly prospective in its
character, and only prevented them from making new acquisitions.
It is unnecessary to do more than simi)l3- refer to the earnest and able
discussions which followed this avowal, and which show more and
more plainlj'^ the opposite constructions which were placed upon the
treaty by the two governments.
"In 1854 it was sought to reconcile these constructions and to ter-
minate the Central American question by the convention which was
signed at London by the American minister and Lord Clarendon, usu-
ally designated the Dallas-Clarendon treat)\ The terms of this treaty
are doubtless familiar to your lordship.
' ' It provides —
'*1. For the withdrawal of the British protectorate over the Mos-
quito Indians and for an arrangement in their behalf upon principles
which were quite acceptable to the United States.
"2. It regulated the boundaries of the Belize settlements, within
which Great Britain claimed to exercise certain possessory rights upon
terms which, although not wholly acceptable to this Government, were
yet in a spirit of generous concession ratified by the United States
Senate.
"3. It provided for a cession of the Bay Islands to Honduras (in
the opinion of this Government their I'ightful proprietor), but this
concession was made dependent upon an unratified treaty between
Great Britain and Honduras, Avhosc^ terms were not otficially known to
this Government, but which, so far as they had unofficially appeared,
were not of a satisfactory character.
"The Senate, therefore, in ratifying the Dallas-Clarendon treatj'^,
felt obliged to amend it by striking out all that part of it which con-
templated the concurrence of this (Government in the treaty with Hon-
duras, and simply providing for a recognition by the two governments
of the sovereign right of Honduras to the islands in question. Great
Britain found itself unable to concur in tliis amendment, and the Dal-
las-Clarendon treaty, therefor(.\ fell to the ground. It was clear, how-
ever, that the objections of the Senate to the Honduras treaty were
§ 355.] CLAYTON-BULWER TREATY : SUMMARY, 1851-1858. 167
not deemed imreasouable by Her Majesty's Government, because, in
your lordship's interview with the President on the 22d of October,
1857, your lordship ' allowed that the articles establishing the admin-
istrative independence of the islands might have been larger than
was necessary.' 'I had observed,' you added, 'the same impression
in the correspondence of Mr. Wyke, Her Majesty's charge d'affaires
at Guatemala, who seemed to admit that a greater participation in
the internal government might be granted to the authorities of Hon-
duras,' and you made ' no doubt that Her Majesty's Government would
entertain any reasonable suggestions which might be offered to them
in that sense.'
"And again, in your lordship's note to this Department of Novem-
ber 30, 1857, you recognize the same probability 'that the intervention
of the Honduras Government in the administration of the islands may
have been more limited than was necessary or even advisable.'
"Such was doubtless the opinion of Honduras, for as long ago as
May 10, 1857, 1 was informed by your lordship that the treaty remained
unratified ' owing to some objections on the part of the Government
of Honduras,' and that ' Her Majesty's Government does not expect
tliat the treat}^ in its present shape will be definitely sanctioned by
that Republic'
"In view of the objectionable provisions of this convention with
Honduras, and of its failure to be sanctioned by that Republic, your
lordship, by the authority of Lord Clarendon, informed me on the 0th
of May, 1857, that Her Majesty's Government was prepared to sanc-
tion a new treaty, in respect to the Central American questions, which
should in all respects conform to the Dallas-Clarendon treaty, as
ratified by the Senate, except that to the simijle recognition in the
Senate's substitute for the second separate article of the sovereignty
of Honduras over the J>ay Islands there was to be added tlie following
passage: 'Whenever and so soon as the Republic of Honduras shall
have concluded and ratified a treaty with Great Britain by which
Great liritain shall have ceded and the Republic of Honduras sliall
liave accepted the said islands subject to the provisions and condi-
tions contained in said treaty.' While this condition contemplated a
new treaty with Honduras which might possibly avoid the objections-
able provisions of the old one, 3"et it was quite impossible for the
United States to become a party, either directly or indirectly to a
convention which was not in existence, or whose terms and conditions
it could neither know nor control. For this reason I infornu^d your
lordship in my communication of May i!), that your loi-dship's propo-
sition was declined by this Government.
"The attempts to adjust tlie Central American questions by means
of a supplementary treaty luiving thus failed of success, and tlie sub-
jects not being of a character, in the opinion of the United States, to
admit of their reference to arbitration, the two Governments were
168 INTEROCEANIC COMMUNICATIONS. [§ 355.
thrown back upon tlieir respective rights under the Clayton-Bulwer
treaty. Wliile eacli Government, however, had continued to insist
upon its own construction of this treaty, there was reason to believe
that the embarrassments growing out of their conflicting views of its
provisions might be practically relieved by direct negotiation between
Her Majesty's Government and the States of Central America.
" In this way it seemed possible that, without any injustice to those
States, the treaty might be rendered acceptable to both countries as
well as operative for the disinterested and useful purposes which it
had been designed to serve. The President, therefore, was glad to
learn from your lordship, on the 19th of October, 1857, that Her Maj-
esty's Government had 'resolved to dispatch a representative of
authority and experience to Central America, to make a definitive set-
tlement of all the matters with regard to which the United States and
England were still at variance, and who would be instructed,' as your
lordship believed, 'to carry the Clayton-Bulwer treaty into execution
according to the general tenor of the interpretation put upon it by the
United States, but to do so by separate negotiation with the Central
American Republics in lieu of a direct engagement with the Federal
Government.' This announcement could not fail to be received with
satisfaction by the President, because it contemplated the substantial
accomplishment of the very purposes in respect to the treaty which
the United States had always had in view, and so long as these were
accomplished he assured your lordship that ' to him it was indifferent
whether the concession contemplated by Her Majesty's Government
were consigned to a direct engagement between England and the
United States or to treaties between the former and the Central
American Republics; the latter method might, in some respects he
added, be even more agreeable to him, and he thought it would be
more convenient to Her Majesty's Government, who might, with
greater facility, accede to the claims of the weaker party. '
"It is unnecessary to refer at length to what was said in this con-
versation, or to a second one on the same subject which your lordship
had with the President on the evening of October 23; but there can
be no doubt that in both interviews the expected mission of Sir William
Ouseley (who it was ui^derstood had been selected as the plenipoten-
tiary referred to), in connection with what your lordship indicated as
his probable instructions, was favorably regarded by the President.
So much was this the case, that he gave your lordship his full assur-
ance that should your lordship's announcement be confirmed bj' any
official information such as he could use, he would change that part
of his message which related to Great Britain, would encourage no
attempt in Congress to annul the treaty while the mission was in
progress, and nothing could give him greater pleasur(% he said, • than
to add the expression of his sincere and ardent wish for the mainte-
nance of friendly relations between the two countries.'
§355.] CLAYTON-BULWER TREATY: SUMMARY, 1851-1858. 169
"At the close of the second interview, lie even went so far as to
remark, in reference to the extended boundary claimed by Great
Britain for the Belize (to which he had ever objected), that he could
make no absolute engagement in this matter; but he would say this
much, ' that if the Jimy Islands were fairly and handsomely evacuated,
such a measure would have a great effect with him, and witli the
American people, in regard to the settlement of the other points at
issue.'
"Sir William Ouseley arrived in Washington about the middle of
November, and on the 30th of November I received from your lord-
ship an official statement in outline of the purposes of his mission.
"On the 5th December, your lordshij) inclosed to me a copy of Lord
Clarendon's dispatch of November 20, in which your lordship's pre-
vious statement was substantially confirmed, and in wliich it was
further stated that 'Sir William Ousele^^ during his visit to Wash-
ington, will, in pursuance of his instructions, have explained with the
utmost frankness to the Government of the United States the nature
of the instructions with which he is furnislied, and your lordship, as
the duly accredited organ of Her Majesty's Government, will have
given similar explanations.'
"The objects of Sir William Ouseley's mission, as thus made known
to the Uuited States, were :
"1. To provide for the transfer by Great Britain of the Bay Islands
to the Government of Honduras; and in this transfer it was especiall}^
declared that the stipulations in the British treaty with Honduras
were not- to be rigidly adhered to. Sir William Ouseley, on the cou-
trarj^ while requiring provisions to secure the vested rights of British
subjects in the Bay Islands, was to be left at liberty to contract
engagements with Honduras which should embodj^ not onlj' an unmis-
takable recognition of its sovereignty^ over these islands; but should
allow of a more direct government and a jnore efficient protection over
them by that republic than had been contained in the convention of
1856.
" 2. The second object of Sir William Ouseley's mission was the set-
tlement of the question of the Mosquito protectorate with Nicaragua
and Honduras. Whilst he was to provide for the compensation, tlie
government, and the protection of the Mosquito Indians -under the
sovereignty of Nicaragua, this was to be done upon terms not less
favorable than those which had received the approbation of the Senate
in the Dallas-Clarendon treat}^ In no degree was the Indian reserve
to trespass on the territory applical)le to transit purposes.
"3. The regulation of the frontier of British Honduras was to be
effected by negotiation witli the Government of Guatemala. Her
Majesty's Government trusted to obtain fi-om that Republic a recog-
nition of limits ' which, if we may judge from previous communica-
tions on the subject, may be accepted in a spirit of conciliation, if
not with absolute approval, ])y the President. '
170 INTEROCEANTC COMMUNICATIONS. [§355.
"Such were ilie ovcrluros coinniunieated by your lordship's note to
this Department of November 30, and whieli were again referred to
in Lord Clarendon's note to your loi-dship of November 20, of which
you inclosed to me a copy in your lordship's note of December 5.
Inasmuch as the announcement of Sir William OuvSeley's mission, with
the explanation by your lordsliip of its general jiurposes, had been
received with much satisfaction by the l*resident, there were some
expressions in this note of Lord Clarendon's which it was not easy to
understand; but which, nevertheless, did not materially change the
general character of the overtures. It was still stated in that dispatch
*that the objections entertained in the United States to the construc-
tions placed upon that treaty by the British Government are, as every
impartial person must admit, in a fair way to be removed by the vol-
untary act of the latter; and while the objects of Sir William's mis-
sion continued to be mentioned in only general terms, it was yet added
that during his visit to Washington he will, in pursuance of his instruc-
tions, have explained with the utmost frankness the nature of the
instructions with which he is furnished, and your lordship, as the duly
accredited organ of Her Majesty in the United States, will have given
similar explanations.'
"The President did not hesitate, therefore, in his message to Con-
gress, to refer to these overtures as having recently been made by the
British Government in a friendly spirit, which he cordially recipro-
cated. He could do no more than this, whatever might be his hopes
for the success of Sir William's mission, until he had received the fur-
ther explanations concerning it which he had been led to expect, and
which he was prepared to consider in the kindest and most respectful
manner. The general remarks contained in the outline of November
30 must have been molded in some specific form, in order to enable
this Government to arrive at a practical decision upon the questions
presented to it. This I understood to be the view of your lordship and
Sir William Ouseley, as well as that of the President and this Depart-
ment. Indeed, it was wholl}'^ in conformity with this view that Sir
William Ouseley was understood to have called at Washington on his
way to Central America. Had he proceeded directly to his destination,
and there, by separate treaties with the Central American Republics,
given substantial efTect to the Clayton-Bulwer convention, according
to the genei'al tenor of the American construction of that instrument,
the Central American controversy would then have been fortunatel}'
terminated to the satisfaction of both Governments. But since this
Government, in a spirit of comity, which the President fully appreci-
ates, was asked to co-operate in accomplishing tliis result, it was
surely not unreasonable that it should know specifically the arrange-
ments which it was expected to sanction.
" The general objects in view we were acquainted with and approved,
but there was no draft of a treaty, no form of separate article, no
§355.] CLAYTON-BULWER TREATY: SUMMARY, 1851-1858. l7l
definition of ineHSures. The Bay Islands were to be surrendered, but
under what restrictions? Tlie DaUas-Chirendon treaty was to be modi-
fied, but what were the modifications? Tlie riglits of British subjects
and the interests of Britisli trade were to be protected in Ruatan, but
to what extent and by what conditions? Honduras was to participate
more largely in the government of the Bay Islands than she was
allowed to do by the convention of 185G, but how far was she to be
restrained and what was to be her power?
"These and other similar questions naturally arose upon the gen-
eral overtures contained in your lordship's note of November 30,
and seemed naturally enough to justify the hope which was enter-
tained of some f nrther explanation of those overtures. In all my con-
versations with your lordship on the subject of Sir William's mission,
subsequent to the meeting of Congress, this expectation of some further
and more definite communication concerning it was certainly taken for
granted, and until time was given to receive such a communication,
you did not press for any answer to your lordshii)'s note of November
20. In the beginning your lordship seemed to think that some embar-
rassment or delay in prosecuting the mission might be occasioned by
the expedition to Nicaragua which had been undertaken bj"^ General
Walker, and by the Cass-Yrisarri treaty which had been negotiated
with that Republic by the United States; but ihe treaty was not dis-
approved by Her Majesty's Government and the expedition of Walker
was promptly repressed, so that no embarrassment from these sources
wonld be further apprehended. As th<^ delay still continued, it was
suggested by your lordship, and fully appreciated by me, thah Her
Majesty's Government was necessarily occupied with the affairs of
Her Majesty's possessions in India, which then claimed its immediate
attention to the exclusion naturally of business which Avas less press-
ing, and hence I awaited the expected instructions without any anxiety
whatever. All this is precisely what your lordship ver}- frankly
describes in your lordshii)'s communication to this Department of
April 12, 1858. 'I addressed my (Tovernment,' your lordship says,
'with a view to obtaining further exi)lanati()ns and instructions, and
I informed you that it was not my desire to press foi- an official reply
to the overt ui'es of the Earl of Clarend<m pending an answer fi-om
London.'
"The explanations, however, anticipated by 3'our lordship and l)y
myself were not received, and about three months after the ai-rival of
Sir William at Washington you expressed to me your r<\gi'et that you
had held out expectations which proved unfounded and which had
prompted delay, and then for the fii-st time re<iuested an answer to
the proi)osals of Her ^Majesty's (Jovrnnienl, and 'es[)ecially to that
part of tluMu I'elatiiig to the arbitration.' It. was even then suggested
that the answer was desired because it was thought to l>e appi'opi'iate
as a matter of form and not because the explanations which had been
172 INTEROCEANIC COMMUNICATIONS. [§355.
waited lor were deemed wholly unnecessary. 'I overlooked some-
thing due to forms,' is your lordship's language in the note of April
12, ' in my anxiety to promote a clearer understanding, and I eventually
learned in an official shape that Her Majesty's Government, following
their better judgment, desired, before making any further communi-
cation, a reply to feheir overtures, and especially to that part of them
referring to arbitration.' Should the new prolTer of arbitration be
declined, it was clearly not supposed in your note of February 15 that
this result would have any tendency to interrupt Sir William's efforts;
but in that event it was hoped, you informed me, that these efforts
would result in a settlement agreeable to the United States, inasmuch
as in essential points it would carry the treaty of l.SoO into oi^eration
in a manner practically" conformable to the American interpretation
of that instrument.
"On the Gth of April I replied to your lordship's note of February
15, with a very frank and full statement of the views of this Govern-
ment upon all the points to which your lordship liad referred. The
renewed offer of arbitration mentioned in a dispatch of Lord Claren-
don was explicitly declined for the same reasons which had occasioned
its rejection before, but an earnest hope was expressed for the success
of Sir William Ouseley's mission, and I was instructed formall}" to
request from your lordship those further explanations concerning it
which had been promised in Lord Clarendon's note of November 20,
for which both your lordshiji and mj^self had waited for three months
in vain, and which, up to this time, have never been furnished to the
American Government. The disappointment which the President
felt at some portions of the correspondence which had occurred, and
especially at the failure of Her Majesty's Government to inform him
more fully than it had done on the subject of the mission, was com-
municated to 3'our lordshii) without the least reserve, but in the pur-
poses of that mission, so far as he understood them, I was authorized
to say that he fully concurred, and to add his sincere hope that they
might be successfully accomplished.
" 'The President,' I informed you, 'has expressed his entire con-
currence in the proposal for an adjustment of the Central American
questions whicrh was made to him by your lordship last October, and
he does not wish that any delaj' or defeat of that adjustment shall be
justly chargeable to this Government. Since, however, he is asked to
co-operate in the arrangements by which it is expected to accomplish
it, it is essential that he should know with reasonable accuracy what
those arrangements are.' It was in the hope of this adjustment, as
well as with a view to the serious consequences which might flow from
a naked repeal of the Clayton-Bulwer treaty, that I made the observa-
tions on that subje(;t which are contained in my letter to your lord-
ship of April G. No demand for this abrogation, your lordship is
well aware, had then been made by Her Majesty's Government; but
§355.] CLAYTON -BULWER TREATY: SUMMARY, 1851-1858. 173
your lordship had several times suggested to me that such an alterna-
tive, if proposed by the United States, would be respectfully consid-
ered by Great Britain, and in your lordship's belief might in some
form or other be ifinally adopted. You informed me, however, at
the same time, that in that event Great Britain would not be inclined
to surrender its possessions in Central America, and would certainly
continue to occupy the Bay Islands. In reply to this announcement,
I informed your lordship that since it is well known that the views
of this Government are wholly inconsistent with these pretensions,
and that it can never willingly acquiesce in their maintenance by
Great Britain, your lordship will readily perceive what serious conse-
quences might follow a dissolution of the treaty, if no provision
should be made at the same time for adjusting the questions which
led to it.
" 'If, therefore,' I added, 'the President does not hasten to con-
sider now the alternative of repealing the treaty of 1850, it is because
he does not wish to anticipate the failure of Sir AVilliam Ouseley's
mission, and is disposed to give a new proof to Her Majesty's Govern-
ment of his sincere desire to preserve the amicable relations which
now happily subsist between the two countries.'
"Having thus complied with your lordship's request, and given that
formal reply to the overtures embraced in Sir William Ouseley's mis-
sion which was desired by Her Majesty's Government, I confidently
expected to receive within a reasonable time these additional instruc-
tions which appeared to have been delayed for this reply. Such
doubtless, was the hope also of yovir lordship. ' The discussion has
been deferred,' you informed me in your note of April 12, 'but the
interests at stake have probably not suffered. The results of the
negotiation between Nicaragua and the United States are not yet dis-
closed, and it is probable thai Sir William Ouseley may proceed to
his destination with more advantage when the nature of those engage-
ments is fully defined.' ' If the American Cabinet,' you also said, 'as
may be inferred from your expressions, be well disi)osed towards Sir
William Ouseley's mission, and will meet Her ]Majesty's Government
in a liberal spirit on matters of secondary moment, tliat mission may
still conduct us to a happy termination.' In further informing me
that my communication would be transmitted to Her Majesty's Gov-
ernment, you added, 'It remains witli Her Majesty's Government to
determine whether they can afford the more perfect information
desired.'
"This was the state of the negotiation in Ajn-il, 1858. The pur-
poses of Sir William Ouseley's mission liad been announced to the
American Government and approved; reference had been nuide by
Lord Clarendon to your lordshiji and Sir William Ouseley for further
explanations; these explanations had been asked for fi-om your lord-
ship in repeated interviews, but your lordship had not received the
174 INTEROCEANIC COMMUNICATIONS. [§355.
necessary instructions to make them. At lengtli I liad been infonned
that it was deemed informal to make them until a reply had been
received to the general overtures embraced in your previous notes, and
especially to that part of them relating to arbitration; this rei)ly had
been given, still approving the mission and rejecting the arbitration;
and it had been sent to London for the consideration of Her Majesty's
Government.
"Under these circumstances, I need not describe to your lordship
the surprise with which I received the copy of Lord Malmesbury's dis-
patch to your lordship, dated at Potsdam, August 18, which you were
good enough to inclose to me. In this dispatch, instead of affording
any more exact definition of the objects of Sir William Ouseley's mis-
sion, your lordship is directed to inform me that Her Majesty's Gov-
ernment ' have, in fact, nothing to add to the explanations given by
Sir William and your lordship upon the subject.' As no exj)lanations
whatever had been received from either Sir William or yourself since
the communication of November 30, it is obvious that his lordship
must labor under some misapprehension on this subject; and equally
clear is it that when his lordship represents me as having declared in
my note of the Gth of April that the Government of the United States
would not agree to the abrogation of the Clayton-Bulwer treaty, he
has failed to appreciate fully the views of the United States in refer-
ence to that abrogation. The declaration in my note of April 0 was
certainlj^ not against any abrogation of the treaty, but against con-
sidering the expediency of abrogating it at that particular time, and
until hopes were at an end of a successful termination of Sir William
Ouseley's mission. This waiver of a discussion on the subject of abro-
gation, in deference to the purposes of that mission, indicated very
clearly, it seems to me, how much was expected by this Government
from Sir William Ouseley's efforts. Yet even these efforts Lord
Malraesbury seems to regard as having been rejected by the United
States, and Her Majesty's Government, he concludes, have no alter-
native but that of leaving to the Cabinet of Washington to originate
any further overtures for an adjustment of these controversies.
"Surely, my lord, there must be some grave misapprehension in all
this of the views entertained and expressed by this Government upon
the proposal embraced in your lordship's note of November 30, or else
this Government has labored under an equally serious error as to what
was intended by Sir William Ouseley's mission. It is under this
impression, and in order to prevent two great nations from failing in
their attempts to adjust an important controversy from a mere ques-
tion of form, or a mere misunderstanding of each other's views, that
I have entered into this extended narrative. It is of no small con-
sequence, either to the United States or Great Britain, that these
Central American controversies between the two countries should be
forever closed.
§355.] CLAYTON-BULWER TREATY: SUMMARY, 1851-1858. 175
" On some points of them, and I have been led to hope on the gen-
eral policy which ought to apply to the whole Isthmian region, they
have reached a common ground of agreement.
"The neutrality of the interoceanic routes and their freedom from
the superior and controlling influence of any one Government, the
principles upon which the Mosquito Protectorate may be arranged,
alike with justice to the sovereignty of Nicaragua and the Indian
tribes, the surrender of the Bay Islands under certain stipulations for
the benefit of trade and the protection of their British occupants, and
the definition of the boundaries of the British Belize — about all these
points there is no apparent disagreement except as to the conditions
which shall be annexed to the Bay Islands' surrender, and as to the
limits which shall be fixed to the settlements of the Belize. Is it pos-
sible that, if approached in a spirit of conciliation and good feeling,
these two points of difference are not susceptible of a friendlj'^ adjust-
ment? To believe this would be to underestimate the importance of
the adjustment, and the intelligent appreciation of this importance
which must be entertained by both nations.
"What the United States want in Central America, next to the
happiness of its people, is the security and neutrality of the inter-
oceanic routes which lead through it. This is equally the desire of
Great Britain, of France, and of the whole commercial world. If the
principles and policy of the Clayton-Bulwer treaty are carried into
effect, this object is accomplished. When, therefore. Lord Malraes-
bury invites new overtures from this Government upon the idea that
it has rejected the proposal embraced in Sir AVilliam Ouseley's mission
for an adjustment of the Central American questions by separate
treaties with Honduras, Nicaragua, and Guatemala, upon terms sub-
stantially according with the general tenor of the American interpre-
tation of the treaty, I have to reply that this very adjustment is all
that the President ever desired, and that instead of having rejected
that proposal he had expressed liis cordial acceptance of it so far as
he understood it, and had anticipated from it the most gratifying
consequences.
"Nothing now remains for me but to inquire of your lordship
whether the overtures contained in your lordship's note of November
30 are to be considered as withdrawn bj' Her Majesty's Government,
or wliether the good results expected in the beginning from Sir Wil-
liam Ouseley's mission may not yet be liappily accomplished."
Mr. Cass, Sec. of State, to Lord Napier. Brit. min. , Nov. 8. IS.IH, Correspond-
ence in relation to the Proposed Interoceanic Canal (Washiiiijfton, 1885) ,
11,3; 48 Br. & For. State Papers, 7;53.
"I have to inform your lordship that Her Majesty's Government have
received with lively satisfaction the note which General Cuss addressed
to yonr lordshii) on the 8th of Nov(>inl)er. Tlie friendly tone in which
it is written, and the high appreciation which it displays of the iin})or-
tance of terminating the irritating discussions in which both our coun-
176 INTEROCEANIC COMMUNICATIONS. [§ 355.
tries have betm po long involved, cannot bnt tend to render that ter-
mination near at hand and permanent.
^ " I feel it to be a duty to do justicre to the accuracy with which General
Cass has recapitulated the circumstances under which the controversy
has been sustained, and the efforts hitherto employed to settle it have
failed." (Lord Malmesbury to Lord Napier, Dec. 8, 1858, Correspond-
ence, etc., 294.)
In connection with the foregoing note, the following correspondence may
be seen in the document just cited: Lord Napier to Lord Clarendon,
March 13, and May G, 1857, i)p. 254, 255; Mr. Cass to Lord Napier, May
29, 1857, p. 256; Lord Napier to Mr. Cass, May «1, 1857, p. 152; Mr. Cass
to Lord Napier, Oct. 20, 1857, p. 260; Lowl Napier to Lord Clarendon,
Oct. 22, 1857, p. 261 ; Lord Nainer to Mr. Cass, Nov. 30, 1857, p. 272;
Lord Napier to Mr. Cass, Feb. 15, 1858, p. 276; Lord Napier to Lord
Malmesbury, March 22, 1858, p. 277; Mr. Cass t ) Lord Napier, April 6.
1858, p. 109; Lord Malmesbury to Lord Napier, April 8. 1858. p. 279;
Lord Malmesbury to Lord Napier, Dec. 8, 1858, p. 294; Lord Napier to
Lord Malmesbury, April 4, 1859. p. 125; Lord Malmesbury to SirW. G.
Ouseley, April 80, 1859, p. 126; Lord Lyons to Lord Malmesbury, May
10, 1859, p. 127; Lord Lyons to Lord Malmesbury, May 30, 1859, pp. 127,
128; Lord John Russell to Mr. "Wyke, Aug. 15, 1859, p. 130; Mr. Cass to
Mr. Dimitry, Sept. 22, 1859, p. 119; Mr. Cass to Mr. Clarke, Oct. 1, 1859,
p. 121, and Feb. 18, 1860, p. 124; Lord John Russell to Lord Lyons, Aug.
4, 1860, p. 14.
Further cori'espondence may be found in the British Blue Book, entitled
" Correspondence respecting Central America, 1856-1860."
See, also, Mr. Cass, Sec. of State, to Mr. Dallas, min. to England, confiden-
tial, April 7, 1859, MS. Inst. Gr. Br. XVII. 179; same to same, April 12,
1859. ' The instruction of April 12, 1859, may be found in the Blue Book,
p. 215.
For the text of the Dallas-Clarendon convention, Oct. 17, 1856, see Blue
Book, 24.
The text of the treaty signed at Washington, Nov. 16, 1857, by Mr. Cass, on the
part of the United States, and Seiior Yrisarri, on the part of Nicaragua,
may be found in the Correspondence in relation to the Proposed Inter-
oceanic Canal. 265. It was in the nature of a general treaty of amity
and commerce, with special stipulations in regard to interoceanic transit
through the territories of Nicaragua. The United States and their cit-
izens were to enjoy the privileges of such transit, whether by land or by
water, on equal terms with the Republic and citizens of Nicaragua.
The United States engaged to jirotoctand to " guarantee the neutrality "
of all interoceanic routes throiigh the territories in question, and ''to
employ their influence with other nations to induce them to guarantee
such neutrality and protection."' Free p(jrts were to be established by
Nicaragua at the ends of the routes, and the Government of the United
States was to have the unobstructed use of the transit for troops and
munitions of war. Nicaragua agreed to employ if necessary her mili-
tary forces for the seciirity of persons and property in transit, and, on
her failure to do so, the United States was to have the right, on notice
to the Government of Nicaragua, or to its minister in the United States,
to employ military forces for that purpose. Stipulations were also made
with a view to prevent the charging of excessive tolls on the routes of
interoceanic communication.
355.] CLAYTON-BULWER TREATY: SUMMARY^ 1851-1858. 177
The reference m wle by General Cass, in his note of Nov. 8, 1858, supra, to
the expeditions of William Walker to Nicaragua, brings into view a
subject that tended, probably as much as anything else, to complicate
the negotiations for the adjustment of questions growing out of the
Clayton-Bulwer treaty, since it served to breed suspicion and to secure
for Great Britain the support of France on Central American (xuestions.
In an instrxiction to Mr. Mirabeau B. Lamar, minister of the United
States to Central America, July 25, 1858, referring to a recent contract
made by M. Belly, a citizen of France, with Costa Rica and Nicaragua,
under which important privileges with regard to the canal were to be
enjoyed by the French Government, as well as to charges of complicity
on the part of American officials with Walker's movements, General
Cass said:
"As to the statement it has been thought proper to make that ' all the offi-
cial agents of the United States in Nicaragua have l)een the accomplices,
and aiTxiliaries of the invaders,' I know nothing of it, except what is
mentioned in this paper, and its position there, in the absence of all
proof, is not sufficient to entitle it to confidence. I repeat the assurance
already given with relation to yourself that if any of these agents have
justly rendered themselves obnoxious to such charges, let the govern-
ments, considering themselves injured by their conduct, transmit to
this Department specific charges, embodying these or any other accu-
sations with evidence in support of them, and the subject shall receive
immediate attenticm, followed by such action as maybe justly called for.
"As to the protectorate which is invoked for the 'independence and nation-
ality of the republics of Nicaragua and Costa Rica," it is a subject very
easily disposed of, so far as the United States have any concern in the
question. The President has no belief that either of the Powers, thus
publicly and improperly appealed to, has ever given the least encour-
agement to such a i)roposition , nor had any reason to anticipate it. The
French Government has voluntarily disclaimed any connection with
M. Belly, and has given assuranct's that it has no designs upon Central
America. biTt on the contrary has avoided any interference of that kind.
A guarantee for the general use and security of a transit route, and also
for its neutrality, is a desirable measure which would meet the hearty
concurrence of the United States. These views have already been made
known to the governments of Costa Rica and Nicaragua, and they have
been informed • that the President indulges the hope that these routes
may yet be considered by general consent as neutral highways for the
world, not to be disturbed l)y the operations of war.' '" (MS. Inst. Am.
States, XV. 331 , 3;51. Other parts of this instruction may be foiind in Cor-
respondence (1885), 2S1. and 50 Br. & For. State Papers. 202.)
Again, in an instruction to Mr. Mason, minister to Finance, Nov. 26, 1858,
General Cass said:
"The general iK)licy of the United States concerning Central America is
familiar to you. We desire to see the isthmian routes opened and free
for the commerce and intercoiarse of the world, and we desire to see the
States of that region well governed and fl(mrishing and free from the
control of all foreign powers. The position we have taken we shall ad-
here to, that this country will not con.sent to the resubjugation of those
States, or to the assumption and maintenance of any European authority
over them.
H. Doc. 551— vol 8 12
178 INTEEOCEANIC COMMUNICATIONS. [§355.
" The United States have acted with entire good faith in this whole matter.
They have dtme all they could do to prevent the departure of illegal
military exiieditions with a view to establish themselves in tliat region,
and at this time measures are in progress to prevent the organization
and departm-e of another, which is said to be in preparation. Should
the avowed intention of the French and British Governments be car-
ried out and their forces be landed in Nicaragua, the measure would be
sure to excite a strong feeling in this country, and would greatly embar-
rass the efforts of the Government to bring to a satisfactory close these
Central American difficulties which have been so long pending. ' ' ( MS.
Inst. France, XV. 401.)
Dec. 1, 1858, Gen. Cass enclosed to Mr. Lamar memoranda of certain con-
versations ^vith M. Sartiges, the French minister, as well as with Lord
Napier, in regard to Central America. (MS. Inst. Am. States, XVI. 22. )
By these memoranda it appears that on Nov. 8, 1858, Lord Napier informed
General Cass that orders had been given to the English naval force in Cen-
tral America to prevent the landing of filibusters in Nicaragua and
Costa Rica, if requested to do so by the governments of those states;
and to prevent their landing upon any part of the Mos<iuito coast or at
Greytown, without any application for that pui-pose from any local
authority. Lord Napier also stated that these orders would remain in
force during the negotiations of Sir W. Gore Ouseley.
On Nov. 9, the subject was renewed, when General Cass said that the United
States objected to the design of the British Government to land forces
in any part of Central America, (1) because it would be an exercise of
dominion and a palpable violation of the Clayton-Bulwer treaty, and
(2) because it would seriously complicate existing difficulties and excite
a very strong feeling in the United States. It might, indeed, declared
General Cass, be attended with the most serious consequences to the
relations of the two countries.
Continuing, the memoranda read as follows:
'"Lord Napier maintained the right of the British Government to take this
measure, tho' he agreed that it might be i)roductive of injurious conse-
quences. He stated that he had no authority in the matter, but that
he would rei)ort the representations I had made to Lord Malmesbury.
He avowed his conviction, however, that his Government would inflexi-
bly adhere to the design, as they felt it necessary to afford protection to
Sir W. Gore Ouseley, while conducting negotiations with which he had
been charged in that quarter. And that this was important to us as
well as to England as their object was to make a fair and just treaty,
which if effected would go far towards the settlement of the Central
American difficulties.
"Nov. 21, 1858.
"M. de Sartiges called to inform me that he had just received a letter from
Count Walewski, who informed him that the British Government had
applied to the French Government to send some armed vessels to St.
Juan del Norte, with orders to land forces, if asked to do so by the Gov-
ernment of Nicaragua, to defeat the projects of the filibusters. The
Government of France had assented to this application, and had ordered
a naval force there, but M. de Sartiges considered the measure as
intended rather as a demonstration, than \\'ith a view to actual inter-
ferenc;e.
'•JtoldM. de Sartiges that I nmch regretted the course which the French
Government had indicated. That it would excite much feeling in this
355.] CLAYTON-BULWER TREATY: SUMMARY, 1831-1858, 179
country, and might still more complicate the existing difficulties in that
region. That this Government was doing all in its power to prevent
the departure of unlawf til warlike expeditions for Nicaragua, and hoped
to succeed. That Lord Napier had infoi-med me, a similar measure had
been adopted by the British Government, and I had explained to his
Lordship the serious objections to it, which were entertained by the
United States, arising not only out of general considerations connected
with the condition of the Isthmian States, and the peculiar interest the
United States had in their progress and condition, but out of the Clay-
ton-Bulwer treaty, which would be violated by such a proceeding on the
part of Great Britian.
" I remarked to M. de Sartiges that the United States would regret to learn
that any concerted arrangements have been agreed on by Great Britain
and France, in relation to those regions. That tlio" France was no party
to the Clayton-Bulwer treaty, nor bound by its stipulations, and we
could not object to her right to guard her interests there, still the posi-
tion which had been taken by this country against European interference
was well known and had become a jjart of our established policy, and
that any concert of action looking to the control of the Isthmus or to a
protectorate, as this would be supposed to be. would be peculiarly unac-
ceptable here. That I hoped no action would take place, for if it did it
would produce great excitement in this country, and could not fail to
call for the attention of the Government. I reciuested M. de Sartiges
to communicate these views to Count Walewski and also to express the
hope that the contemplated measure might yet be stopped.
In an instruction to Mr. Lamar, No. 20, March 4, 1859, animadverting upon
the non-ratification of the Cass-Yrisarri treaty by Nicaragua, General
Cass complained that preference had been given by Nicaragua to a
similar treaty with Great Britain. In this relation. Gen. Cass said:
" The provision which is contained in the article of the British treaty,
No. 22, as transmitted by you, which requires the United States to pre-
vent the fitting out of armed expeditions within our borders to operate
against Nicaragua, or to render assistance to any political party in that
country, cannot be assented to by this Government. A similar proi)osal
was rejected by the United States when the Cass-Irisarri treaty was
negotiated, and was again rejected when proposed by General Jerez as
an additional article to the treaty. It involves an offensive dt)ubt
whether this government will continue to execute in good faith the
neutrality laws of the United States, although such laws have been in
existence since the administration of Washington, and have always
been scrupulously enforced."" (MS. Inst. Am. States, XVI. ^2. )
In a later instruction, No. 22, April 1 . IS.")!), General Cass directed Mr. Lamar,
if, on receipt of the dispatch, the Nicaraguan Congress had adjourned
without ratifying the Cass-Yrisarri treaty, or should have ratified it
with the obnoxious additional arti(ile on neutrality, or if, the Congress
still being in session, the treaty should not be ratified without this
obnoxious article within two weeks after the receipt of the despatch, to
demand his passports and return home. The Nicaraguan Government
was to be informed of this and also of the fact that unless its whole
course towards the United States was at once changed and reasonable
redress made for injuries to citizens of the United States, the President
would regard all p'aceful negotiations witli Nicaragua as at an end
and recommend to Congress to seek redress by force. (MS. Inst. Am.
States, XVI. 36.)
180 INTEROCEANTC COMMUNICATIONS. [§355.
Before this instruction was written. Mr. Lamar had conchided a treaty with
Nicaragua wliich was a transcript of the Cass-Yrisarri treaty, with the
addition of the modifications which Nicaraj^iia had proposed. Mr.
Lamar stated that his motive for so doing was that Sir W. Gore Ouseley
had adopted these very modifications, and he thought the United States
might on reconsideration accept them, since otherwise no treaty could
be made. ( MSS. Dept. of State. )
As to Walker's expeditions, see Mr. Cass, Sec. of State, to Mr. Molina, Nica-
raguan min., Nov. 2(5, 18(50, MS. Notes to Cent. Am. I. 177.
The British Government disapproved the insertion by Sir W. Gore Ouseley,
in his treaty with Nicaragua, of an engagement on the part of that
Government to prevent the organization of filibustering expeditions in
British territory against Nicaragua, and declined to ratify the treaty,
not only because the article had "no real meaning so far as Great
Britain and Nicaragua are concerned, except as a simple concession."
but also because it had been used by Nicaragua as the basis of an
attempt to require a similar concession from the United States. ( Lord
J. Russell to Sir C. L. Wyke, Aug. 15, 1859, Cor. in relation to the Pro-
posed Interoceanic Canal, 130; 50 Br. & For. State Papers, 267. )
" You will impress upon Count Walewski that we want nothing of Nicaragua
which is not honorable to her, and which we have not a fair right to
demand. "We shall, under no circumstances, abandon the determina-
tion that the transit routes across the Isthmus shall be kept open and
safe for all commercial nations." (Mr. Cass, Sec. of State, to Mr.
Mason, Apr. 12, 1859, MS. Inst. France. XV. 412.)
With regard to the proposal of arbitration, it may be stated that it was sug-
gested by Lord Clarendon to Mr. Buchanan in a conversation in Novem-
ber 1854. Mr. Buchanan, in reply, "playfully observed that it would
now be difficult to find an impartial umpire, as they had gone to war
with our arbitrator, the Emperor of Russia." The subject was again
mentioned by Lord Clarendon a year later, when Mr. Buchanan made
the same reply. Neither Mr. Buchanan nor his Government regarded
Lord Clarendon's remarks as intended to convey a formal oifer of arbi-
tration; and it appears that Mr. Cramp ton, who had been directed to
make such an offer, overlooked that part of his instructions and failed
to communicate it till the end of February 185G. (Blue Book, Corre
spondence with the United States respecting Central America, 1856,
296-303.)
The subject was renewed by Mr. Crampton's successor at Washington, Lord
Napier, who stated to Mr. Cass officially, although nut instructed to do
so, that her Majesty's Government " regarded the principle of arbitra
tion as the ark of safety for nations differing as to the sense of treaties.''
and that he did not doubt that his Government " would gladly refer
the decision of all controverted points to the decision of any one of the
European powers. ' ' General Cass, as reported by Lord Napier, answered
that he "did not repudiate the principle of arbitration on all occasions;
he had invoked it, and would do so again where it seemed justly appli-
cable; " but that in the pending matter it was declined by the United
States because, in the first place, the language of the treaty was so clear
that in his opinion there ought not to be two opinions about it. " We
say black is black," remarked Gen. Cass, " but we think that you say
that black is white." Besides, said Gen. Cass, it was a mere question
of the interpretation of the English language, concerning which no for-
eign government was so competent to decide as the United States and
§356.] CLAYTON-BULWER TREATY: WYKE TREATIES. 181
England, who possessed that language in common; and, finally, the
Senate of the United States had accepted the treaty in the sense that it
stipulated for the absolute withdrawal of all British protectorate or pos-
session in Central America. He had himself separated from some of his
party and voted for the measure on that landerstanding, and on no other
would the treaty have had a voice in the Senate or in the country. (Blue
Book, Correspondence respecting Central America, 1856-60, 63-63. )
4. Arrangement of 1858-1860.
§ 356.
By a convention between Great Britain and Honduras, signed by
Sir Charles Lennox Wyke and Seiior don Francisco Cruz at Comaya-
gua, November 28, 1850, Great Britain recognized the sovereignty of
Honduras over the Bay Islands and over the district occupied by the
Mosquito Indians within the frontier of Honduras, whatever that
frontier might be. Provision was at the same time made for the pres-
ervation of any interests of British subjects by grant, lease, or other-
wise, obtained from the Mosquito Indians in lands situated within
the district in question, and, in order that this stipulation might be
made effective, provision was made for the appointment of a mixed
commission to investigate the claims of British subjects arising out
of grants, or leases, or otherwise.
49 Brit. & For. State Papers, 13.
■ For a further account of this treaty and the proceedings of the mixed com-
mission, seo Moore, Int. Arbitrations, II. 2106.
' ' Aside from the well understood doctrines of this Grovemment as to any
new acquisitions of American territory by European powers, it seems
unquestionable that the Clayton-Bulwer treaty precludes the acquisition
of those islands by Great Britain. The intentions which are imputed,
therefore, to that i)ower, looking in that direction may well be discred-
ited. Still they should awaken the attention and arouse the vigilance
of this Government. Even should the tendency you rejjort toward the
alienation of the Bay Islands take another direction, it woiild. of course,
be impossible for us to remain indifferent or to actpiiesce in any other
European power acqiiiring any of them." (Mr. Evarts. Sec. of State,
to Mr. Logan, Mar. 4, 1880. MS. Inst. Cent. Am. XVIII. 73.)
By a convention between Great Britain and Nicaragua, signed by
Sir Charles Lennox Wyke and Seiior Pedro Zeledon, at Managua,
Januarj' 28, 1800, Great Britain recognized tlio sovereignty of Nica-
ragua over the district occupied by the Mosquito Indians "within
the frontier of that republic." The convention looked to the ulti-
mate formal incoi-poration of the Mosquito Indians into the Repub-
lic of Nicaragua, and provided for the preservation of the' rights of
British subjects to lands within the district under grants or leases
from the Mosquito Indians.
50 Brit. & For. State Pap. 96; Moore, Int. Arbitrations, II. 2106.
182 INTEROCEANIC COMMUNICATIONS. '[§ 350.
For the Wyke-Aycinena convention between Great Britain and Honduras,
signed at Guatemala, April 30, lHo9, see Correspondence in relation to
the Proposed Interoceanic Canal (Washington, 1885), 294.
For an explanation of the failure of Sir William Gore Ouseley's mission,
and the instructions given by Lord John Russell, Aug. 1.5, 1859, to Sir
William's successor. Sir Charles Lennox Wyke, by whom the treaties
above mentioned were concluded, see Correspondence (1885), 130: 50
Br. & For. State Papers (1859, 1860), 267. See, also, Mr. Ca.ss, Sec.
of State, to Mr. Dallas, min. to England, Aug. 11, and Aug. 12, 1859,
MS. Inst. Gr. Br. XVII. 208, 209, urging the importance of a speedy
settlement.
With reference to the mission of Sir C. L. Wyke, see Mr. Cass, Sec. of
State, to Mr. Clarke, min. to Cent. Am., Oct. 1, 1859, and Feb. 18. 1860,
Correspondence, &c., 121, 124; Mr. Cass, Sec. of State, to Lord Lyons,
confidential, Feb. 21, 1860, MS. Notes to Gr. Br. VIII. 287.
''Our relations with Great Britain are of the most friendly cliarac-
ter. Since the commencement of my Administration the twodangerous
questions arising from the Clayton and Bulwer treaty and from the
right of search claimed by the British Government have been amica-
bly and honorably adjusted.
"Tlie discordant constructions of the Clayton and Bulwer treaty
between the two Governments, which at different periods of the discus-
sion bore a threatening aspect, have resulted in a final settlement entirely
satisfactory to this Government. In my last annual message I informed
Congress that the British Government had not then ' completed treaty
arrangements with the Republics of Honduras and Nicaragua in
pursuance of the understanding between the two Governments. It
is, nevertheless, confidently expected that this good work will ere long
be accomplished.' This confident expectation has since been fulfilled.
Her Britannic Majesty concluded a treaty w itli Honduras on tlie 28th
November, 1859, and Avith Nicaragua on the 28th August, 1860, relin-
quishing the Mosquito protectorate. Besides, by the former tlio Bay
Islands are recognized as a part of the Republic of Honduras. It may
be observed that the stipulations of these treaties conform in every
important particular to the amendments adopted by the Senate of the
United States to the treaty concluded at London on the 17th October,
1850, between the two Governments. It will be recollected that tliis
treaty was rejected by the British Government because of its objection
to the just and important amendment of the Senate to the article
relating to Ruatan and the other islands in the Bay of Honduras."
President Buchanan, annual message, Dec. 3, 1860. (Richardson's Messages
and Papers, V. 639.)
§357.] CLAYTON-BULWER TREATY: MR. SEWARD ^S COURSE. 183
5. Mr. Seward's course.
§ 357.
" It is the policy of the United States Government to keep the Nica-
ragua transit open to the commerce of the world, and to discourage
its interruption bj^ the visionary schemes of adventurers."
Mr. Seward, Sec. of State, to Mr. Riotte. No. 60, Sept. 8, 1863, MS. Inst. Am.
States, XVI. 367.
As to Mr. Seward's action in 1863, with reference to the Panama route, see
supra, § 339.
By Art. XTV. of the Clay-Colindres treaty, between the United States and
Honduras, concluded at Comayagua, July 4, 1864, stipulations, similar in
! terms to those embodied in Art. XXXV. of the treaty of 1846 with New
Granada, were made with reference to interoceanic routes in Honduras,
and particularly to the way to be constructed by the Honduras Inter-
oceanic Railway Comiiany. The guarantee thus given does not imply
" that the United States are to maintain a police or other force in Hon-
duras for the purpose of keeping petty trespassers from the railway. ' '
(Mr. Fish, Sec. of State, to Mr. Baxter, min. to Honduras. May 12, 1871,
For. Rel. 1871, 581; Mr. Fish, Sec. of State, to Mr. Torbert, min. to
Salvador, March 20, 1871, For. Rel. 1871, 691.)
" It seems obvious that the renunciation by the parties to this instru-
ment [the Clayton-Bulwer treaty! of a right to acquire
Sugrgestion as to , . ^. • ^ ^ . a • • ^ i j
_,. 1 1 A dominion in Central America was intended to prevent
either of them from obtaining control over the pro-
posed ship-canal. At the time the treatj^ was concluded, there was
every jjrospect that that work would not only soon be begun, but
that it would be carried to a successful conclusion. For reasons,
however, which it is not necessary to specify, it never was even com-
menced, and at present there does not appear to be a likelihood of its
being undertaken. It may be a question, therefore, supposing that
the canal should never be begun, whether the renunciatory clauses of
the treaty are to have perpetual operation.
"Technically speaking, this question might be decided in the nega-
tive. Still, so long as it should remain a question, it would not com-
port with good faith for either party to do anything which might be
deemed contrary to even the spirit of the treaty.
"It is becoming more and more certain everyday that not only
naval warfare in the future, but also all navigation of war vessels in
time of peace must be by steam. This necessity will occasion little
or no inconvenience to the principal maritime powers of P^urope, and
especiall}^ to Great IJi'itain, as those j)owers have possessions in
various parts of the globe where they can have stores of coal and pro-
visions for tlie use of their vessels. We are differently situated. We
have no possession beyond the limits of the United States. Foreign
colonization has never been favored by statesmen in this country
either on general grounds, or as in harmony witli our peculiar coudi-
184 INTEROCEANIC COMMUNICATIONS. [§357.
tion. Tlu'l'c is no cliaugo or likely to be any in this respect. It is
indispensable for us, however, to have coalinj? stations under our own
tUig for naval observation and police, and for defensive war as well
as for the protection of our widely-spread commerce when we are at
peace ourselves. This want, even for our commercial marine, is
nowhere more sensibly felt than on the track between Panama and
San P^rancisco. The question then occurs what points beyond our
jurisdiction would be most eligible for this purpose?
"Whatever opinion might be entertained in regard to any other
sites, there would be no question that Tigre Island would l>e exceed-
ingly desirable for that purpose.
"Under these circumstances, you will sound Lord Clarendon as to
the disposition of his Government to favor us in acquiring coaling
stations in Central America, notwithstanding the stipulation con-
tained in the Clayton-Bulwer treaty. In doing this, however, you
will use general terms only, and will by no means allow it to be sup-
posed that we particularly covet Tigre Island. You will execute this
instruction at such time and in such way as to you may seem best,
and inform the Department of the result so that the United States
minister to Honduras may be directed to proceed accordingly.
" It is supposed that you may probably be able to introduce the sub-
ject to the Earl of Clarendon's attention by suggesting that a negotia-
tion with a view to the special end mentioned might be made an
element in a general negotiation for settlement of the northwest-
boundary question and of the conflicting claims of the two-<jountries
which have arisen during the late rebellion in the United States."
Mr. Seward, Sec. of State, to Mr. Adams, min. to England, April 25. 1866,
Correspondence in relation to the Proposed Interoceanic Canal (Wash-
ington, 1885), 14.
Mr. Adams, June 2, 1866, answered that he had in a casnal way brought the
subject to the attention of Lord Clarendon, who stated that he would
refresh his recollection of the Clayton-Bulwer treaty and "look the
whole thing over. " (Correspondence, etc. (1885), 15.)
June 12, 1867, Mr. Seward enclosed to Mr. Adams a copy of a dispatch just
received from Mr. Rousseau, United States minister resident in Hon-
duras, in relation to the desire of the United States to obtain Tigi*e
Island as a coaling station. Accompanying the dispatch was a ma]).
Mr. Adams was instructed to bring the matter, in siach manner as his
discretion might approve, to the attention of Lord Stanley. (MS. Inst.
Gr. Br. XXI. 219.)
June 21, 1807, Mr. Seward being Secretarj- of State, a treaty, com-
monly called the Dickinson-Ayon treaty, was con-
Treaty with Nica- ^.^^^^^^,^^ l^etween the United States and Nicaragua,
ragua, 1867, and , . . . , ,. . .i . ,^ , i." , .
. . containing stipulations similar to those emboduMl in
the unratified Cass-Yrisarri agreement. The ratifi-
cations of the treaty were exchanged at Granada, .Tune 20, 18()8. By
Article XIV., Nicaragua grants "to the United States, and to their
§ 358.] CLAYTON-BULWER TREATY: MR. FISh's NEGOTIATIONS. 185
citizens and property, the right of transit between the Atlantic and
Pacific Oceans through the territory of that Republic, on any route of
communication, natural or artificial, whether by land or by water," on
the same terms as it should be enjoyed by Nicaragua and its citizens,
"the Republic of Nicaragua, howevei", reserving its rights of sover-
eignty'^ over the same." By the next article, the United States " agree
to extend their protection to all such routes of communication as afore-
said, and to guarantee the neutrality and innocent use of the same.
They also agree to employ their influence with other nations to induce
them to guarantee such neutrality and protection."
Treaty Volume (1776-1887), 779, 784-786. The treaty of peace and frientl-
ship between Spahi and Nicaragua of July 25, 18.")(), provides (Article
XIII.) that the former power shall "enjoy on the transit the same
advantages and exemptions as are granted to the most favored nation,"
and shall, on the other hand, giiarantee its " neutrality," in order *• to
keep the transit thereby free" and "protect it against all embargo
or confiscation;" and the treaty between Spain and Costa Rica of May
10, 1850. grants (Article XIII.) to the Spanish flag and merchandise
"free transit" upon any canal through the territory of Costa Rica
on the same terms as "the vessels, merchandise, and citizens" of
the latter country. (39 Br. & For. State Papers, 1345; 43 id.' 1210.)
By Articles XXVII. -XXXIII. of the treaty of amity, commerce,
and navigation, between France and Nicaragua, of April 11, 1859,
the neutrality and free use of the canal are amply guaranteed.
(50 Br. & For. State Papers, 363, 373. ) The treaty of commerce between
Great Britain and Nicaragua of Febniary 11, 1860, contained similar
stipulations; but it expired June 11, 1888, on notice given in conformity
with its terms. (78 Br. & For. State Papers. 562.) The treaty between
Italy and Nicaragua of March 6, 1868, provides for most-favored nation
treatment in respect of "navigation," as well as of commerce. (58 Br.
& For. State Papers. 546.)
See Mr. Cardenas, Nicaraguan min.. to Mr. Fish. Sec. of State, Jan. 25. 18T7.
referring the foregoing treaties. (Correspondence in relation to the
Proposed Interoceanic Canal (Washington. 1885), 134, 135.)
6. Nf:gotiations of Mr. Fish.
§ 358.
"You are fully aware of the great interest which this Government
has already taken in the question of a water communication across or
near the Isthmus of Darien, and of the large expenditure it has made
in the surveys foi" ascertaining the most practicable route. The Pres-
ident has taken the most lively interest in this object, and I am safe
in saying that scarce any one object has more earnestly engaged his
sympath}'. lie has encouraged and authorized the prosecution of offi-
cial surveys, and, as you are no doubt aware, referi-ed all the reports
of the various surveys to a board consisting of General Humphrey's,
C'luef of Engineers, United Stales Ai-iny; Gomiuodore Ammen, Chief
of the liureau of Navigation, United States Navy; and Captain Pat-
terson, Superintendent of the Coast Survey. He personally and care-
'186 INTEROCEANTC COMMUNICATIONS. [§ 358.
fnlly examined all these reports, and that of the board; which latter
•reached the conclusion that the Nicaragua route presented the most
practicable if not the only feasible means of accomplishing the desired
•object. . . .
"The interest of the President and of the people of the United
States in the construction of a canal connecting the two oceans is,
however, so great that, although it cannot entertain the irregular
-suggestions reported in your interesting despatch, should a proposi-
tion or request be authoritatively made by the Maritime Powers, or
by any of the prominent ones, requesting the United States to unite
by the appointment of an engineer to cooperate witli others officially
appointed or recognized, in the survey of the alleged route, the Pres-
'ident will not hesitate to respond to the request. It is possible that
he might also authorize the Navy to render such aid as maybe within
its power; the decision on this point, however, is reserved until the
question arises. But in the present aspect of the subject, and under
the presentation in which it is brought to the attention of this Gov-
ernment, it is simply a private enterprise, not without the suspicion
•of being brought forward in antagonism and for the purpose of embar-
rassing and of delaying the execution of a canal, on the plan which
the official reports of the surveys, and of the very elaborate and
scientific explorations made by this Government, had indicated as
•practicable.
"A Darien canal should not be regarded as hostile to a Suez Canal;
they will be, not so much rivals, as joint contributors to the increase
of the commerce of the world, and thus mutually advance each other's
interests. The successful construction of the Darien canal will really
add to the glory of the originator of the Suez Canal. . . .
**We shall ... be glad of any movement which shall result in
ithe early decision of the question of the most practicable route, and
the early commencement and speedy completion of an interoceanic
communication, which shall be guaranteed in its perpetual neutraliza-
tion and dedication to the commerce of all nations, without advan-
tages to one over another of those who guarantee its assured neutral-
ity. In this connection I would call your attention to the fact that
the mere guarantee of neutrality of a canal and of a belt of contiguous
territory will be of little practical value, unless the waters of thehigli
seas, for a radius of reasonably large extent around the termini on
either ocean, be also made neutral waters, so far as relates to vessels
navigating or designing to enter the canal are concerned, in order to
.prevent a blockade at the mouth, by one belligerent of vessels belong-
ing to another belligerent, and to allow a reasonable chance for the
vessels of a belligerent to enter, or to escape from the canal, at a dis-
tance beyond the mere limits of jurisdictional waters."
Mr. Fish, Sec. of State, to Mr. Washbume, min. to France, Nov. 13, 1876,
MS. Inst. France, XIX. 413-414, 418-420.
The enterprise above referred to was that of Mr. de Qogorza.
§358.] CLAYTON-BULWER TREATY: CIRCULAR OF 1877. 187
In the closing months of l*i'osident Grant's Administration a step
i,,»»« was taken in the direction of effecting a final adjust-
Circular of 1877. it
ment of the canal question on the lines of perfect neu-
tralization. As appears by a circular of Mr. Fish, then Secretary of
State, to United States ministers, of February 28, 1877, a draft treaty
was prepared, " to which it was proposed to obtain the accession of
the principal maritime powers." The negotiations failed owing to
certain views of Nicaragua, which were neither satisfactory to the
United States nor calculated to (»btain the "cooperation" of those
powers. By the draft treaty, every power becoming a party to its
" stipulations and guarantees" was "at all times, whether in peace or
war," to have "the right of transit" through the canal when con-
structed, as well as "the benefit of the neutral waters at the ends
thereof for all classes of vessels entitled to fly their respective flags
with the cat-goes on board, on equal terms in ever^'respect as between
each other;" and "the vessels of war and other national vessels " of
such powers were to have "the right of transit through the canal."
Mr. Fish, Sec. of State, to United States ministers, circular, Feb. 28, 1877,
Correspondence in relation to the Proposed Interoceanic Canal (Wash-
ington, 188o),134r-151, where correspondence with the Nicaragnan min-
ister at Washington and drafts and counterdraf ts of the proposed treaty
may be found. Mr. Fish's original draft is at p. 146.
In certain remarks accompanying a note to the Nicaragnan minister of Feb.
16, 1877, Mr. Fish, commenting on a counter memorandum of Nica-
ragua, said:
"The obligations of the Clayton-Bulwer treaty, including that which pro-
vides for an invitation to other powers to join in guaranteeing the
neutrality [of the canalj , are still subsisting. This Government has
hitherto abstained fi*oin making a proposition on the subject to Other
powers, because there has been no prospect of a completion, or even of
a commencement of the canal. Having already entered into the stipula-
tion with Great Britain, and that still being in force, its repetition in a
treaty with Nicaragua might imply a doubt of the good faith of the
United States on the subject." (Id. 145.)
In 1876, Mr. Fish entered into negotiations with Mr. Peralta, the Costa Rican
minister at Washington, with a vie w to conclude a treaty on the subject
of a ship canal, and to that end presented to the minister a memorandum
embodying as the basis of an agreement the same general principles as
were afterwards laid down in the negotiations with the Nicaragnan
minister. June 26, 1876, Mr. Peralta indicated that the continued mis-
understanding between his country and Nicaragua in regard to their
boundary was likely to delay any arrangement with regard to the work
in question. (Mr. Fish, Sec. of State, to Mr. Peralta, March 28, and
July 11, 1876, MS. Notes to Costa Rica, II. 14, 17.)
" We have made several attempts at negotiation with both Nicaragua and
Colombia on the subject of an interoceanic canal. They have failed
mostly through the indisposition of the governments of those countries
to grant terms which would command the confidence of capitalists.
This policy on their part tends to confirm the opinion which yoii express
that Nicaragua at least dews not desire a canal through her territory."
(Mr. F. W. Seward, Act. Sec. of State, to Mr. Williamson, min. to Costa
Rica, Nov. 27, 1878, MS. Inst. Costa Rica, XVII. 383.)
188 INTEROCEANIC COMMUNICATIONS. [§ 359.
7. Messages op President Hayes.
§ 359.
"The question of an interoceanic canal has recently assumed a new
and important aspect and is now under discussion with the Central
American countries through whose territory the canal, bj'' the Nica-
ragua route, would have to pass. It is trusted that enlightened states-
manship on their part will see that the early prosecution of such a
work will largely inure to tl>e benefit, not only of their own citizens
and those of the United States, but of the commerce of the civilized
world. It is not doubted that should the work be undertaken under
the protective auspices of the United States, and upon satisfactory con-
cessions for the right of way and its security by the Central Amer-
ican Governments, the caj^ital for its completion would be readily
furnished from this country and Europe, which might, failing such
guarantees, prove inaccessible."
President Hayes, annual message, Dec. 1, 1879. (Richardson's Messages
and Papers, VII. 569.)
"The policy of this country is a canal under American control.
The United States cannot consent to the surrender of this control to
any European power, or to any combination of European powers. If
existing treaties between the United States and other nations, or if
the I'ightsof sovereignty or property of other nations stand in the way
of this policy — a contingency^ which is not apprehended — suitable
steps should be taken by just and liberal negotiations to promote and
establish the American policy on this subject, consistently with the
rights of the nations to be affected by it.
"The capital invested by corporations or citizens of other countries
in such an enterprise must, in a great degree, look for protection to
one or more of the great powers of the world. No European power
can intervene for such protection without adopting measures on this
continent which the United States would deem wholly inadmissible.
If the protection of the United States is relied upon, the United States
must exercise such control as will enable this country to protect its
national interests and maintain the rights of those whose private capi-
tal is embarked in the work.
"An interoceanic canal across the American Isthmus will essentially
change the geographical relations between the Atlantic and I*acific
coasts of the United States, and between the United States and the
rest of the world. It will be the great ocean thoroughfare between our
Atlantic and our Pacific shores, and virtually a part of the coast line
of the United States. Our men^ly commercial interest in it is greater
than that of all other countries, while its relations to our power and
prosperity as a nation, to our means of defense, our unity, peace, and
safety, are matters of paramount concern to the people of the United
§ 3G0.] CLAYTON-BULWER TREATY: MR, BLAINE ^S PROPOSALS. 189
States. No other great power would, under similar circumstances,
fail to assert a rightful control over a work so closely and vitally affect-
ing its interest and welfare.
" Without urging further the grounds of my opinion, I repeat, in
conclusion, that it is the right and the duty of the United States to
assert and maintain such supervision and authority over any inter-
oceanic canal across the isthmus that connects North and South
America as will protect our national interests. This I am quite sure
will be found not only comi)atible with, but promotive of, the widest
and most permanent advantage to commerce and civilization."
President Hayes, message of March 8, 1880, S. Ex. Doc. 112, 46 Cong. 2 sess.;
H. Ex. Doc. 47, 46 Cong. 2 sess.; Correspondence in relation to the Pro-
posed Interoceanic Canal (Washington, 1885), 3. See, also, the report
of Mr. Evarts, Sec. of State, accompanying the President's message, and
expressing similar views. Mr. Evarts refers to the Wyse concession, at
Panama, as the occasion for considering the relation of the United
States to the subject of interoceanic communication across the American
Isthmus.
8. Discussions of 1881-1883,
§ 3G0.
Mr. Blaine, in an instruction to Mr. Lowell, minister to England,
June 24, 1881, referring to a report "that the great
Mr. Blaine's in- powers of Europe may possibly be considering the
rue ions o r. g^^]|^jY'j.^ ^^f jointly guaranteeing tlie neutrality of the
interoceanic canal" then projected across the Isth-
mus of Panama, declared that, in the opinion of the President, the
guarantee given by the United States to New Granada, by Art. XXXV.
of the treat}^ of 184(i, did not require "reinforcement, or accession, or
assent from any other power," and that any attempt to "supersede"
it, by "an agreement between European powers," would " partake of
the nature of an alliance against tlie United States, and would be
regarded by this Government as an indication of unfriendly feeling."
Mr. Lowell was further instructed to be careful, in anj' conversations
Avhich he might have, not to represent this position as the development
of a new policy or as the inauguration of any advanced, aggressive
steps to be taken by the United States, since it was "nothing more than
the pronounced adherence of the United States to principles long
since enunciated by the highest autliority of the Government, and
now, in the judgment of the President, firmly interwoven as an inte-
gral and important part of our national policy."
Mr. Blaine, Sec. of State, to Mr. Lowell, min. to England. June 24, 1881,
Correspondence in relati(m to the Projjosed Interoceanic Canal (Wash-
ington, 188.5), 322. See the text of tlie instruction more fully given,
supra, g 339.
The foregoing instruc-tion was ijrompted 1)y a report, by the United States
minister at Bogota, that it had i)rivately b\it with ev<;ry api^earauce of
190 INTBROGEANIC COMMUNICATIONS. [§ '^^'^•
trustworlliiiiej.; come to his knowledge that the Colombian Qoveni-
ment h?A derided to make overtures, through itg ministers at London
and Paris, to the Governments of Great Britain and France, and also
to those of (:}ermany, Spain, and Italy, inviting them to join in the
execution of a treaty guaranteeing the neutrality of the Isthmus of
Panama, and the sovereignty of Colombia over that territory. (Mn
Blaine, Sec. of State, to Mr. Phelps, min. to Austria-Hungary, June 35,
1881, MS. Inst. Aust. -Hungary, III. 172.)
The instruction was communicated to the cabinets of L<mdon, Paris, Ber-
lin, and Vienna, and, by mistake, to that of Brussels. (Mr. Blaine, Sec.
of State, to Mr. Putnam, min. to Belgium, Aug. 1, 1881, MS. Ihst. Belg.
II. 370.)
Eor the reply of Lord Granville, t ee stipra, J5 339.
Referring to his instruction of June 24, 1881, Mr. Blaine addressed
to Mr. Lowell, Nov. 19, 1881, a further instruction specifically relat-
ing to the Clayton-Bulwer treaty, a treaty made, said Mr. Blaine,
"more than, thirty years ago, under exceptional and extraordinary
conditions which have long ceased to exist — conditions which at
best were temporary in their nature, and which can never be repro-
duced." Mr. Blaine objected to the "perpetuity" of the treaty on
the ground (1) that it bound tlie United States "not to use its mili-
tary force in any precautionary measure," while it left "the naval
power of Great Britain perfectly free and unrestrained; ready at any
moment of need to seize both ends of the canal, and render its mili-
tary occupation on land a matter entirely within the discretion of her
Majesty's Government;" (2) that it embodied " a misconception of t-he
relative positions of Great Britain and the United States with respect
to the interests of each Government in questions pertaining to this
continent," and impeached "our right and long-established claim to
priority;" (3) that it gave the same right through the canal to a war
ship, bent upon an errand of destruction to the United States coasts,
as to a vessel of the American navj^ sailing for their defense, and that
the United States demanded, for its own defense, the riglit to use
only the same prevision as Great Britain so emphatically employed,
in respect of the Suez route, bj'^ the possession of strategic and forti-
fied posts and otherwise, for the defense of the British Empire; (4)
that, only by the supervision of the United States, could the Isthmian
canal "be definitely and at all times secured against the interference
and obstruction incident to war;" .(5) that "a mere agreement of neu-
trality on paper between the great powers of Europe miglit prove inef-
fectual to preserve the canal in time of hostilities," and that if, in the
event of a general European war, one of their naval powers should
seize it, the United States might be obliged to enter upon a "defen-
sive and protective war" in order to support her own commeixje; (G)
that, while the European powers had often engaged with one another
in war, "in only a single instance in the past hundred years" liad the
United States "exchanged a hostile shot" with any of them, and that,
§ 3G0.] CLAYTON-BULWER TREATY: MR. BLAINE *S PROPOSALS. 191
as it was improbable that "for a hundred years to come" such, an
incident would be repeated, the " one conclusive mode" of preserving
the neutrality of the canal was to place it under the control of the
United States, as the government "least likely to be engaged in war,
and able, in any and every event, to enforce the guai"dianship which
she shall assume;" (7) that, since the treaty was made, the number of
French and German vessels frequenting the Central American coasts
had greatly and relatively increased; (8) that the expected aid in the
construction of the canal from British capital, which the treaty was
design-'d to secure, had not been i-ealized, and that, owing to the great
development of the United States, foreign capital could not in future
enter as an essential factor into the determination of the problem.
In conclusion, Mr. Blaine said :
"It is earnestly hoped by the President that the considerations now
presented will have due weight and influence with Her Majesty's Gov-
ernment, and that the modifications of the treaty desired by the United
States will be conceded in the same friendly spirit in which they are
asked. The following is a summary of the changes necessary to meet
the views of this Government:
"First. Every part of the treaty which forbids the United States
fortifying the canal and holding the political control of it in conjunction
with the country in which it is located to be canceled.
"Second. Every part of the treaty in which Great Britain and the
United States agree to make no acquisition of territory in Central
America to remain in full force. As an original proposition, thisGov-
ernment would not admit that Great Britain and the United States
should be put on the same basis, evennegatively, with respect toterii-
torial acquisitions on the American continent, and would be unwilling
to estal)lisli such a precedent without full explanation. But the treaty
contains that provision with respect to Central America, and if the
United Statesshould seek its annulment, it might give rise to erroneous
and mischievous ai^prehensions among a people with whom this Gov-
ernment desires to be on the most friendly terms. The United State*,
has taken special occasion to assure the Spanish- American republics to
the south of us that we do not intend and do not desire to cross their
borders or in any way disturb their territorial integrity, and we shall
not willingly incur the risk of a misunderstanding l)y annulling the
clauses in the Ciayton-Bulwer treaty which forbid such a. step with
Central America. The acquisition of military and naval stations nec-
essary for the protection of the canal and voluntarily ceded to the
United States by the Central American States not to be regarded as a
violation of the provisions contained in the foregoing.
"Third. The United States will not object to maintaining the clause
looking to the esta])lishnient of a free port at each end of whatever
canal may be (H^nstructed, if England desires it to Ix^ i-etained.
192 TNTEROCEANIC COMMUNICATIONS. [§ •^^*^-
"Fourth. Tlio clniiso in wiiicli tlie two govonnnents agroed to make
treaty Htii)ulations for a joint protectorate of whatever railway or
canal niiglit be constructed at Tehuantepec or Panama has never been
perfected. No treaty stipuhitions for tlie proposed end have been
suggested by either party, although citizens of the United States long
since constructed a railway at Panama, and are now <>ngaged in the
same work at Tehuantepec. It is a fair presumption, in the judg-
ment of the President, that this provision should be regarded as obso-
lete by the nonaction and common consent of tin; two governments.
" Fifth. The clause defining the distance from either end of the
canal where in time of war captures might be made by either bellig-
erent on the high seas was left incomplete, and the distance was never
determined. In the judgment of the President, speaking in the inter-
est of peaceful commerce, this distance should be made as liberal as
possible, and might, with advantage, as a question relating to the
high seas and common to all iiations, be a matter of stiijulation
between the great powers of the world. .
" In assuming as a necessity the political control of whatever canal
or canals may be constructed across the Isthmus, the United States
will act in entire harmony with the governments within whose terri-
tory'' the canals shall be located. Between the United States and the
other American republics there can be no hostility, no jealousy, no
rivalry, no distrust. This government entertains no design in con-
nection with this project for its own advantage which is not also for
the equal or greater advantage of the country to be directly and imme-
diately affected. Nor does the United States seek any exclusive or
narrow commercial advantage. It frankly agrees and will by public
proclamation declare at the proper time, in conjunction with the
republic on whose soil the canal may be located, that the same rights
and privileges, the same tolls and obligations for the use of the canal,
shall apply with absolute impartiality to the merchant marine of
every nation on the globe. And equally in time of peace, the harm-
less use of the canal shall be freely granted to the war vessels of other
nations. In time of war, aside from the defensive use to be made of
it by the country in which it is constructed and by the United States,
the canal shall be impartially closed against the war vessels of all
belligerents.
" It is the desire and determination of the United States that the
canal shall be used only for the development and increase of peaceful
commerce among all the nations, and shall not be considered a strategic
point in warfare which may tempt the aggression of belligerents or be
seized under the compulsions of military necessity by any of the great
powers that may have contests in which the United States has no Stake
and will take no part.
§ 360.] CLAYTON-BULWER TREATY I MR. BLAINE 's PROPOSALS. 193
"If it be asked why the United States objects to the assent of
European governments to the terms of neutrality for the operation of
the canal, my answer is that the right to assent implies the right to
dissent, and thus the whole question would be thrown open for con-
tention as an international issue. It is the fixed purpose of the United
States to confine it strictly and solely as an American question, to be
dealt with and decided by the American Government.
"In presenting the views contained herein to Lord Granville, you
will take occasion to say that the Government of the United States
seeks this particular time for the discussion as most opportune and
auspicious. At no period since the peace of 1783 have relations
between the British and American Governments been so cordial and
friendly as now. And I am sure Her Majesty's Government will find
in the views now suggested and the propositions now submitted
additional evidence of the desire of this Government to remove all
possible grounds of controversy between two nations which have so
many interests in common and so many reasons for honorable and
lasting peace.
"You will, at the earliest opportunity, acquaint Lord Granville with
the purpose of the United States touching the Clayton-Bulwer treaty,
and in your own way you will impress him fully with the views of
your Government.
" I refrain from directing that a copy of this instruction be left with
his lordship, because in reviewing the case I have necessarily been
compelled, in drawing illustrations from British policy, to indulge
somewhat freely in the argunientum ad honiitiem.
"This course of reasoning in an instruction to our own minister is
altogethei' legitimate and pertinentj and yet might seem discourteous
if addressed directly to the British Government. You may deem it
expedient to make this explanation to Lord Granville, and if, after-
ward, he shall desire a copy of this instruction, you will of course
furnish it."
Mr. Blaine, Sec. of State, to Mr. Lowell, min. to England, No. 270, Nov. 19,
1881, Correspondence (1885). 327; For. Rel. 1881. 554.
In another instniction to Mr. Lowell, Nov. 29, 1881, Mr. Blaine reviewed
the discussions as to the Clayton-Bnlwer treaty from 1850 to 1858, as
they appear in the correspondence given above, and particularly in Mr.
Cass' note of Nov. 8, 1858, to Lord Napier, snpra, ^ 355. (Correspond-
ence, 333; For. Rel. 1881, 563.)
" Lord Granville was, as usual, exceedingly courteoiTS and friendly, but
made no remark except that the publication of No. 270, before an oppor-
tunity was given him of replying to it, 'seemed to him, to say the least,
unusual." "' (Mr. Lowell to Mr. Blaine, Dec. 27, 1881, Correspondence,
339.)
H. Doc. 551— vol 3 13
194 INTEROCEANIC COMMUNICATIONS. [§360.
Lord Granville's reply to Mr. Blaine's papers of November, 1881, is
contained in two instructions addressed to the British minister at
Washington, and dated respectively January 7 and
^^^ January 14, 1882. In the first of these notes Lord
Granville declared that Her Majesty's Government
could not admit that the analogy, which was sought to ho drawn
from the conduct of Great Britain in regard to the Suez Canal,
was correct or justified by the facts, especially as that Government
had never tried to restrict the use of the canal by the naval forces
of other countries; that, when the Clayton-Bulwer treatj' was made,
and even when President Monroe published his message of 1823, there
was a clear prevision of the great future reserved to the I*{icific coast;
that Great Britain had large colonial possessions, no less than great
commercial interests, which rendered interoceanic communication a
matter for her also of the greatest importance; that in her opinion
such communication concerned not merely the United States or the
American continent, but, as was recognized by Article VI. of the
Clayton-Bulwer treaty, the whole civilized world, and that she would
not oppose or decline any discussion for the purpose of securing on a
general international basis its universal and unrestricted use; that, if
provision should be made on the one side for a different state of affairs,
it would find its natural and logical counterpart on the other; that Her
Majesty's Government could conceive no more melancholy spectacle
than a competition among the nations holding West Indian possessions
and others on the American continent in the construction of fortifica-
tions to obtain command over the canal and its approaches; and that,
when the claim to do this was accompanied by a declaration that the
United States would insist on treating the canal "as part of her coast
line," it was difficult to imagine that the states to which the territory
lying between that waterway and the United States belonged, could
practically retain their indei)endent position. As against these con-
sequences, which would almost certainly follow from a claim on the
part of the United States to assume the supreme authority over the
canal and all responsibility for its control, Her Majesty's Government,
said Lord Granville, held that the principles which guided the negotia-
tors of the treaty of 1850 were intrinsically sound and continued to be
applicable to the later state of affairs. He added that an extension to
all maritime states of the invitation contemjilated by the treaty of
1850 would obviate any objection that the treaty was not adequate, in
its present condition, for the purpose for which it was designed. In
this relation he referred to Mr. Fish's circular of 1877.
In his instruction of January 14, 1882, Lord Granville entered into
an extended review of the discussions relating to the C'layton-Bulwer
treaty and maintained (1) that those difterences, which had "long
since been happily disposed of," did not relate to the general principles
to be observed in regard to interoceanic communication, but to terri-
§ 3G0.] CLAYTON -BULWER TREATY: FRELINGHUYSEN ^S VIEWS. 195
torial questions; (-) that Mr. Blaine's proposal to retain that part of
the treaty which prohibited the two governments from acquiring
territory in Central America, but to cancel the parts that forbade
either contracting party to fortify the canal and hold political con-
trol of it, was distinctly' at variance with the declarations of the
United States while the controversy lasted; (3) that the United States
did not then seek to limit the principle of neutralization so as to
exclude Colombian or even Mexican territory, or urge that its appli-
cation would be inconsistent with the treaty between the United
States and New Granada of 184G; (4) that, when the controversies
concerning the Clayton-Bulwer treaty were in progress, the British
Government was led to contemplate the abrogation of the treaty, on
condition of reverting to the state of things before its conclusion ;
(5) that this solution, as the United States then pointed out, would
have been fraught with danger to the good relations between the two
countries, and that by the voluntary action of Great ]3ritain the points
in dispute were practically conceded to the United States, and a set-
tlement reached which w^as declared by President Buchanan to be
entirely satisfactory and which had for twenty years remained
undisputed.
Lord Granville to Mr. Wost, January 7, 1882. Correspondence in relation
to the Proposed Interoceanic Canal (Washington. 1885), 840; same to
same, January 14. 1883. id. 848.
These two papers may also be found in For. Rel. 1883, 303, 805.
A reply to Lord Granville's two papers was made by Mr. Fre-
linghuys(!n in an instruction to Mr. Lowell, May 8,
re mg uy- jgj^^o. In this instruction Mr. Frelinghuysen main-
sens views.
tamed tliat the Clayton-Bulwer treaty was concluded
to secure a thing which did not then exist and which was no
longer capable of existing, namely, the construction of a canal
under the grant from Nicaragua of 1840; that, in order to secure this,
the United States consented to waive the exclusive and valuable
rights which had been offered to it, and agreed with Great Britain not
to occupy, fortify, colonize or^issume dominion over any part of
Central America; that the United States was not called upon by any
princnple of equity to revive those provisions of the treaty which
specially related to the concession of 1849 and apply them to any con-
cession since nuide; that, in view of the development of the Ignited
States, the need of foreign capital for the construction of the canal
no longer existed, and that the United States held itself free to pro-
tect any interoceanic communication in which its government or citi-
zens might become interested under agreements with the local sov-
ereign powers; that the President was still ready, on the i^art of the
United States, to agree that the reciprocal engagenuMits of 1850
respecting the acquisition of territory in Central America and the
196 INTEBOCEANIC COMMUNICATIONS. [§ 3C0.
establishment of a fri*o port at oacrh eiul of the canal should continue
in force, and to define by agreeftient the distance from either end
whei-e captun^s might not be made by a belligerent in titne of war,
and thus to ke(^p alive Article II. of the CJlayton-Bulwer treaty.
With regard to Lord Granville's suggestion that the United States
should take the initiative in an invitation to other powers to partici-
pate in an agreement of neutralization based on the Claj'ton-IUilwer
treaty, Mr. Frelinghuysen said that the President was consi rained to
say that the United States could not take part in extending such an
invitation. In this relation, Mr. Frelinghuysen maintained that a
canal, under the protectorate of the United States and the i-epublic
whose territory it might cross, could be freely used by all nations,
while the United States would thus in some degree retain the benefit
of that conformation of the earth which c(mstituted an element of
security and defence; that for thirty years the Panama railroad had
been maintained without other protection thfin that of the United
States aud the local sovereign; that during the same time the peace-
ful commerce of the world had moved through the Suez Canal quietly
and safely under no international protectorate; that an international
guarantee of the neutrality of the transit of the American Isthmus
would give the navies of the earth a pretext for assembling in waters
contiguous to the American shores, and would besides be in conflict
with the Monroe doctrine, a doctrine which it was not anticipated that
Great Britain would controvert, since she "suggested" it to the United
States, and, when the United States adoi^ted, highly approved it.
Mr. Frelinghuysen also reviewed the discussions in relation to the
Clayton-Bulwer treaty between 1850 and 1860, laying special stress on
the question of Belize and the conversion of that " settlement" into a
British "possession." On this subject, Mr. Frelinghuysen expressed
the following conclusion : " Under the treaty of 1850, while it is bind-
ing, the United States have not the right to exercise dominion over or
to colonize one foot of territory in Central America. Great Britain is
under the same rigid restriction. And if Great Britain has violated
and continues to violate thatprovision„the treaty is, of course, voidable
at the pleasure of the United States."
Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England, May 8,
1882, Correspondence in relation to the Proposed Interoceanlc Canal
(Washington, 1885) 159; For. Rel. 1882, 271.
Lord Granville replied to Mr. Frelinghuysen in an Instruction addressed to
Mr. West, British minister at Washington, December 30, 1882. With
regard to the position that the treaty, by reason of the existence of the
colony of British Hondtiras. was voidable. Lord Granville said that it
would seem to be "opposed to all sound principle that the United
States should now claim to abrogate the treaty of 1850, by reason of the
existence of a state of things which has i)revailed, to their knowledge,
before as well as since its ratification, to which the treaty was never
inttjnded to apply, and notwithstanding the known existence of whic;h
they have more than once recognized the treaty as subsisting. ' ' (Corre-
§3G1.] CLAYTON-BULWER treaty: FRELINGHUYSEn's VIEWS. 197
spondeiice in relation to the Proposed In teroceanic Canal (Washington,
1885), 353, 357: For. Rel. 1883, 484.)
For a further discussion of the subject, see Mr. Frelinghuysen, Sec. of State,
to Mr. Lowell, min. to England, May 5, 1883; Lord Granville to Mr.
West, Aug. 17, 1883; Mr. Frelinghuysen to Mr. Lowell, Nov. 22, 1883;
Correspondence in relation to the Proposed Interoceanic Canal (Wash-
ington, 1885), 359. 363, 365; For. Rel. 1883, 418. 529, 477.
"The treaty was voidable at the option of the United States. This. I
think, has been demonstrated fully on two grounds. First, that the
consideration of the treaty having failed, its object never having been
accomplished, the United States did not receive that for which they
covenanted; and, second, that Great Britain has persistently violated
her agreement not to colonize the Central American coast." (Mr. Fre-
linghuysen, Sec. of State, to Mr. Hall, min. to Cent. Am., July 19, 1884,
MS. Inst. Cent. Am. XVIII. 443).
9. Frelinqhuysen-Zavala convention.
§ 361.
December 1, 1884, Mr. Frelinghuj^sen, then Secretary of State, and
Gen. Joaquin Zavala, ex-President of Nicaragua, signed at Washing-
ton a convention by which the United States engaged to build a canal
at its own cost, and with that view entered into a "perpetual alliance"
with Nicaragua and agreed "to protect the integrity of the territory
of the latter." While the convention provided for "equal" tolls for
the vessels of "all nations" (except vessels of the conti-acting parties
engaged in tlie coasting trade), and contained no stipulation for the
fortification of the canal, yet it did not provide for its neutralization.
It was submitted to the Senate December 10, 1884. It had not been
approved by that body when, in the following March, President Cleve-
land withdrew it for reexamination.
Message of President Arthur to the Senate, Dec. 10, 1884, Conf. Exec. F.
48 Cong. 2 sess.. submitting the treaty of December 1, 1884, to the Senate
for its advice and consent. The injunction of secrecy was removed
from the message and treaty January 6. 1891.
As to the special mission of Cai)tain S. L. Phelps to Nicaragua to condiict
certain negotiations with reference to a canal, see Mr. John Davis, Act.
Sec. of State, to Mr. Hall. min. to Central America, conf., Sept. 23, 1882,
MS. Inst. Central America, XVIII. 339; Mr. Frelinghuysen, Sec. of
State, to Capt. Phelps. April 28, 188^. MS. Inst. Peru, XVII. 132.
As to pi'ellminary negotiations with Nicaragua, see, further. Mr. Freling-
huysen, Sec. of State, to Mr. Hall, min. to Central America, Fel). 24,
1883, Feb. 12. March 5, March 8, and April 3, 1884, MS. Inst. Central
America. XVIII. 340, 454, 483. 457, 458.
For a review of the preliminary negotiations, see Mr. Frelinghuysen. Sec.
of State, to Mr. Hall, min. to Central America, July 19, 1884, MS. Inst.
Central America, XVIII. 443.
"Canal treaty pul)lished in New York TribKiie to-day obtained from some
source of which we are entirely ignorant, and published without
authority." (Mr. Frelinghuysen, Sec. of State, to Mr. Hall. min. to
Central America, tel., Dec. 18, 1884, MS. Inst. Central America, XVIII.
438.)
198 INTEROCEANIC COMMUNICATIONS. [§ 3G2.
For correspondence as to the exceptions taken and the reservations made
by Cost4i Rica to the Frelinghxiysen-Zavala convention, see Mr. Peralta.
Costa Rican minister, to Mr. Frelinghuysen, Sec. of State, Feb. 28, 1885;
Mr. Frelinghuysen to Mr. Peralta, March 3, 1885: S. Ex. Doc. 50, 49
Cong. Ssess. 18,21.
See, also, Mr. Bayard, Sec. of State, to Mr. Viqnez, Costa Rican charge,
Nov. 28, 1885, S. Ex. Doc. 50, 49 Ccmg. 2 sess. 40: R(p,)rt of Mr. Bayard,
Sec. of State, to the President. Jan. 25. 1887, together with other corre-
spondence in relation to the position of Costa Rica, id. 1. Mr. Bayard's
report was transmitted by President Cleveland to the Senate on the day
on which it was made, in answer to a resolution of that body of Dec.
21. 1886, calling for certain correspondence.
Notice was given, in case the treaty should be ratified, of a possible claim
of Mr. F. A. Pellas, against the Government of the United States, based
on a concession from Nicaragua of the exclusive navigation for eighteen
years of the river San Juan del Norte and the Lake of Granada, for the
purpose of transporting the productions of the country and goods
intended for its interior trade. (Mr. Bayard. Sec. of State, to Mr.
Goodman, May 18, 1885, 155 MS. Dom. Let. 410.)
10. President Cleveland's message, 1885.
"The interest of the United States in a practicable transit for ships
across the strip of land separating the Atlantic from the Pacific lias
been repeatedl}' manifested during the last half century.
"My immediate predecessor caused to be negotiated with Nica-
ragua a treaty for the construction, by and at the sole cost of the
United States, of a canal tlirough Nicaraguan territory, and laid it
before the Senate. Pending the action of that body thereon, I with-
drew the treaty for re-examination. Attentive consideration of its
provisions leads me to withhold it from resubmission to tiie Senate.
"Maintaining, as I do, the tenets of a line of precedents from
Washington's day, which proscribe entangling alliances with foreign
states, I do not favor a policy of acquisition of new and distant terri-
tory or the incorporation of remote interests witli our own.
"The laws of j)rogress are vital and organic, and we must be con-
scious of that irresistible tide of commercial exiDansion which, as the
concomitant of our active civilization, day by day, is being urged
onward bj^ those increasing facilities of production, transportation,
and communication to which steam and electricit}^ have given birth;
but our duty in the present instructs us to address ourselves mainly
to the development of the vast resources of the great area committed
to our charge, and to the cultivation of the arts of peace within our
own borders, though jealously alert in preventing the American
hemisphere from being involved in the political problems and com-
plications of distant governments. Therefore, I am unable to recom-
mend propositions involving paramount privileges of ownership or
right outside of our own territory, when coupled with absolute and
§302.] CLAYTON-BULWEE TREATY: MESSAGE OF 1885. 1;)9
iiiiliinited cn<^ageinents to defend the territorial integrity of tlie state
where such interests lie. While the general project of connecting the
two oceans by means of a canal is to be encouraged, I am of opinion
that any scheme to that end to be considered with favor should be
free from the features alluded to.
"The Tehuantepec route is declared, by engineers of the highest
repute and by competent scientists, to afford an entirely practicable
transit for»vessels and cargoes, by means of a shiji-railway, from the
Atlantic to the Pacific. The obvious advantages of such a route, if
feasible, over others more remote from the axial lines of traffic
between Europe and the Pacific, and, particularly, between the valley
of the Mississippi and the western coast of North and South America,
are deserving of consideration.
"Whatever highway may be constructed across the barrier divid-
ing the two greatest maritime areas of the world must be for the
world's benefit, a trust for mankind, to be removed from the chance of
domination by any single power, nor become a point of invitation for
hostilities or a prize for warlike ambition. An engagement combin-
ing the construction, ownership, and operation of such a work bj- this
Government, with an offensive and defensive alliance for its protec-
tion, with the foreign state whose responsibilities and rights we would
share, is, in my judgment, inconsistent with such dedication to uni-
versal and neutral use, and would, moreover, entail measures for its
realization beyond the scope of our national polity or present means.
"The lapse of years has abundantly confirmed the wisdom and
foresight of those earlier administrations which, long before the con-
ditions of maritime intercourse were changed and enlarged by the
progress of the age, proclaimed the vital need of interoceanic transit
across the American Isthmus and consecrated it in advance to the
common use of mankind by their positive declarations and through
the formal obligation of treaties. Toward such realization the efforts
of my administration will be applied, ever bearing in mind the prin-
ciples on which it must rest, and which were declared in no uncertain
tones by Mr. Cass, who, while Secretary of State, in 1858, announced
that ' What the United States want in Central America, next to the
happiness of its people, is the security and neutrality of the inter-
oceanic routes which lead through it.'
"The construction of three transcontinental lines of railway all
in successful operation, wholly within our territory and uniting the
Atlantic and the Pacific Oceans, has been accompani<Hl by results of
a most interesting and impressive nature, and has created new condi-
tions, not in the routes of commerce only, but in political geography,
which powerfully affect our relations towai'd, and necessarily inci-ease
our interests in, any trans- isthmian route which may be opened and em-
ployed for the ends of peace and traffic, or, in other contingencies,for
uses inimical to both.
200 INTEROCEANIC COMMUNICATIONS. [>5 ^'^»2.
".Transportation is a factor in the cost of commodities scarcely sec-
ond to that of their production, and weighs as heavily upon the con-
sumer.
"Our experience already has proven the great importance of liav-
ing the competition between land carriage and water carriage fully
developed, each acting as a protection to the public against the tenden-
cies to monopoly which are inherent in the consolidation of wealth and
power in the hands of vast corporations.
"These suggestions may serve to emphasize what I have already
said on the score of the necessity of a neutralization of any interoceanic
transit; and this can only be accomplished by making the uses of the
route open to all nations and subject to the ambitions and warlike
necessities of none."
President Cleveland, annual message, Dec. 8. 1885. (For. Rel. 1885, p. v.)
"The opening of an interoceanic canal l)y way of Lake Nicaragiia has
received the most careful consideration of the present Executive, and
his interest in the construction of such an enterprise, under the control
and guidance of American ownership and capital, was presented
impressively in his first 'annual message to Congress in December
1885 ... I am warranted in saying that he has undergone no change
in the views nor abatement in the interest as set forth in that pai)er."
(Mr. Bayard, Sec. of State, to Messrs. Billings & Daly, Jan. 7, 1887,
162MS. Dom. Let. 510.)
With respect to a statement that an application was to be made to the Gov-
ernments of Colombia and Costa Rica for a new concession for a rail-
way across the Isthmus of Chiriqui. with grants of land and harbor
rights upon Chiriqui Lagoon and Golfo Dulce, but that, before the
• application was presented, the "favor and counsel" of the United
Sta,fces, of which the proposed applicants were citizens, were desired,
the Department of State replied that any tangible and operative scheme
of interoceanic commiinication, carried out by American capital, would
have the friendly support of the Government, within the lines laid down
in the President's annual message of 1885, but added: " It is not proi)er,
however, for the Department to express any opinion as to the scheme
you propose nor to give any advice to you or others, meditating busi-
ness enterprises in a foreign land, as to the inducements or obstacles
which may be in their way. If such advice were given, it would be
called upon afterwards to sustain it, which would be outside its con-
stitutional orbit. Nor can this Department present you to any foreign
Government as in any way entitled to speak for the United States,
Such function can be entrusted only to the diplomatic representatives
of the Government." (Mr. Bayard, Sec. of State, to Messrs. Dillon
et al., February 16, 1887, 168 MS. Dom. Let. 161.)
*' The canal company has, unfortunately, become financially seriously
embarrassed, but a generous treatment has been extended to it by the
Government of Nicaragua. The United States are especially interested
in the successful achievement of the vast undertaking this company
has in charge. That it should be accomplished under distinctively
American auspices, and its enjoyment assured not only to the vessels of
this country as a channel of communication between our Atlantic and
Pacific seaboards, but to the ships of the world in the interests of civ-
§ 363.] CLAYTON -BtJLWER TREATY : DISCUSSIONS, 1889-1894. 201
ilization. is a proposition which, in my judgment, does not admit of
question." (President Cleveland, ann. message, Dec. 4, 1893, For. Rel.
1893. p. viii.)
"The great interest expressed in the i)roposed construction of the
interoceanic canal by citizens of the United States, under charter
granted according to the laws of the United States, and the concern
naturally felt for the security of the vast capital necessary for the
accomplishment of such a work under effective guaranties of stability
and order, should serve to advise the statesmen of Guatemala of the
new and important enterprises thus inaugurated, and lead them to
realize the magnitude of the concern which would necessarilj* be felt
should any ill-counseled plans of domination or control cast a doubt
upon the capacity of the independent Central American States to
maintain orderly and local self-government, and observe relations of
good-will toward each other."
Mr. Bayard, Sec. of State, to Mr. Hall, min. to Cent. Am.. Feb. 27, 1888,
For. Rel. 1888, I. 131. referring to the disquietude felt in Nicaragiia
because of rumors that the plan of forcible consolidation of the Central
American Republics, which had failed when undertaken by President
Barrios, of Guatemala, was to be revived by his successor, General
Barillas.
See, also, Mr. Bayard, Sec. of State, to Sec. of Navy, Sept. 12, 1888. sug-
gesting that an investigation be made of an alleged design or attempt
on the part of the Colombian Government to seize and occupy Corn
Island, on the Nicaraguan coast, near the Atlantic approach to the
projected Nicaraguan ship-canal. (169 MS. Dom. Let. 648.)
11. Executive utterances, 1889-1894.
. §363. •
"The annual report of the Maritime Canal Company of Nicaragua
shows that much costly and necessary preparatory work has been
done during the year in the construction of shops, railroad tracks,
and harbor piers and breakwaters, and that the work of canal con-
struction has made some progress.
"I deem it to be a matter of the highest concern to the United
States that this canal, connecting the waters of the Atlantic and
Pacific oceans and giving to us a short water comnuinication l)etween
our ports upon those two great seas, should be speedily constructed
and at the smallest practicable limit of cost. The gain in fieights to
the people and the direct saving to the (Tovei-nment of llie Ignited
States in the use of its naval vessels would pay the entiie cosi of
this work within a short series of years. The report of the Secretai-y
of the Navj^ shows the saving in our naval expenditures which would
result.
"The Senator from Alal)ama (Mr. Morgan), in his argument upon
this subject before the Senate at the last session, did not overestimate
the importance of this work when lie said that 'the canal is the most
202 INTEROCEANIC COMMUNICATIONS. [§ 303.
important subject now connected with the commercial growth and
progress of the United States.'
"If tiiis work is to bo promoted by the usual financial methods and
without the aid of this Government, the expenditures, in its interest-
bearing securities and stocks, will probably be twice the actual cost.
This will necessitate higher tolls and constitute a heavy and alto-
gether needless burden upon our commerce and that of the world.
Every dollar of the bonds and stock of the company should represent
a dollar expended in the legitimate and economical prosecution of the
work. This is only possible by giving to the bonds the guaranty of
the United States Government. Such a guaranty would secure the
ready sale at par of a 3 per cent bond, from time to time, as the
money was needed. I do not doubt that, built upon these business
methods, the canal would, when fully inaugurated, earn its fixed
charges and operating expenses. But if its bonds are to be marketed
at heavy discounts and every bond sold is to be accompanied by a gift
of stock, as has come to be expected by investors in such enterprises,
the traffic will be seriously burdened to pay interest and dividends.
I am quite willing to recommend Government promotion in the prose-
cution of a work which, if no other means offered for securing its com-
pletion, is of such transcendent interest that the Government should,
in my opinion, secure it by direct appropriations from its Treasury.
"A guaranty of the bonds of the Canal Company to an amount
necessary to the completion of the canal could, I think, be so given
as not to involve any serious risk of ultimate loss. The things to be
carefully guarded are the completion of the work within the limits of
the guaranty, the subrogation of the United States to the rights of the
first-mortgage bondholders for any amounts it may have to pay, and
in the meantime a control of the stock of the companj'^ as a security
against mismanagement and loss. I most sincerely hope that neither
party nor sectional lines will be drawn upon this great American proj-
ect, so full of interest to the people of all our States and so influen-
tial in its effects upon the prestige and prosperity of our common
country. "
President Harrison, annual message, Dec. 9, 1891. (For. Rel. 1891, p. xiii.)
"I repeat with great earnestness the recommendation which I have made
in several previous messages that prompt and adequate support be given
to the American company engaged in the constriiction of the Nicaragua
Ship Canal. It is impossible to overstate the value from every stand-
point of this great enterprise, and I hope that there may be time, even in
this Congress, to give to it an impetus that will insure the early comple-
tion of the canal and secure to the United States its proper relation to it
when completed."' (President Harrison, annual message, Dec. 6, 1892,
For. |lel. 1892, p. xvi.)
" In pursuance of the charter granted by Congress, and under the terms of
its contract with the Government of Nicaragua, the Interoceanic Canal
Company has begun the construction of the important water-way
between the two oceans which its organization contemplates. Grave
§304.] CLAYTON-BULWER TREATY: OLNEY MEMORANDUM. 503
complications for a time seemed imminent, in view of a snpp: s d con-
flict of jurisdiction between Nicaragua and Costa Rica in regard to the
accessory privileges to be conceded by the latter Republic toward the
construction of works on the San Juan River, of whi^li the ri^ht b,u:k
is Costa Rican territory. I am happy to learn that a friendly arrange-
ment has been effected between the two nations. This Government has
held itself ready to proiuv^te in ev.r/ propar way the adjustment of all
questions that might present obstacles to the completion of a work of
such transcendent importance to the commerce of this country, and
indeed to the commercial interests of the world." (President Harrison,
annual message, Dec. 8, 1889, For. Rel. 1889, p. vii.)
See report of Mr. Sherman, Committee on For. Rel., Jan. 10, 1891, in which
the ground is taken that the Clayton-Bulwer treaty is obsolete, S. Rep.
1944, 51 Cong. 3 sess.
See, also, S. Rep. 1142, 53 Cong. 3 sess.
See report of Mr. Morgan, Com. on Interoceanic Canals, June 4, 1900, on the
Clayton-Bulwer treaty. S. Rep. 1649, 56 Cong. 1 sess.
"I can add little to what has been so ably and earnestly said on
many occasions heretofore tonohing the deep conviction felt b}^ this
Government that the completion of the interoceanic canal nnder dis-
tinctively American auspices and in the interest of the independent
states of this hemisphere and of the workl'.s commerce is a necessity,
the importance of which is shown to grow more vital with each pass-
ing year. In the President's judgment, tlie speedy realization of the
work is one of the highest aims toward which the two Governments
can move in friendly accord, and no effort will be^vantingon our part
to bring about so desirable a result, with due regard to all the vast
interests involved therein."
Mr. Gresham, Sec. of State, to Mr. Guzman, Nicaraguan min.. May 1,1894,
For. Rel. 1894, 461.
See, as to representations to the Nicaraguan Government concei-ning the
notice of forfeiture of the concession of the Maritime Canal Company
of Nicaragua. For. Rel. 1894, 461-465.
13. Mr. Olnfa''s memorandum, 1896.
§ 364.
"The Clayton-Bulwer Treatj^had its origin in an earnest desire on
the part of the (Tovernment and people of this country to shorten the
transit and to facilitate the communications between our then newly
acquired possessions on the Pacific coast and the rest of the Ignited
States. California was acquired in 1848, and the opening of its gold
fields and the rush of population thither followed ahnost immediately.
In 1840, the United States, by treaty with Nicaragua, secui"ed conces-
sions in favor of an American company organized for the constinc-
tion of a canal between the two oceans via the lakes of Nicai'agua
and the River San Juan. Two obstacles, however, stood in the way
of this company's successful prosecution of the work. One was the
204 INTEROCEANIC COMMUNICATIONS. [§ 364.
riglits asserted by Great Britain ovei- tlie Mosquito Coast. The otlier
was the inability to procure the necessary capital in this country, or
to procure it in England or elsewhere abroad, so long as the enter-
prise was conducted under purely American auspices. To remove
the first of these difficulties, in 1849, Mr. Clayton, the then Secretary
of State, applied to the British Government, through its minister at
Washington, for the withdrawal of the British i)retensions to domin-
ion oyer the Mosquito Coast. The answer was a refusal coupled with
an intimation that Great Britain was willing to enter into a treaty
for a joint protectorate over the proposed canal. It being supposed,
undoubtedly, that if the canal were built under British protection the
only remaining obstacle to its construction, namely, want of sufficient
capital, would also disappear, negotiations were set on foot between
the two Governments on the basis of the British proposal. They pro-
gressed with great rapidity and with the result that in June, 1850, the
Clayton-Bulwer Treaty was signed.
"The treaty is characterized by certain remarkable features. It
contains numerous and apt provisions for the protection, safety, and
neutralization of the proposed ship canal; but it deals not merely
with the particular subject-matter which, in the view of the United
States, led to its negotiation. It also deals with others of larger mag-
nitude, contemplates alliances with other powere, and lays down gen-
eral principles for the future guidance of the parties. The United
States, in entering upon the negotiation, aimed to accomplish two
specific things — the renunciation bj^ Great Britain of its claim to the
Mosquito Coast and such a protectorate over the canal by Great Brit-
ain jointly with the United States as might be expected to attract to
the canal British capital. As the result of the negotiations, it secured
not only the two things specified, but also a third, viz. Great Brit-
ain's express agreement, so far as Central America was concerned, to
give effect to the so-called ^Monroe doctrine. For these advantages
it rendered, of course, a consideration. It waived tlie Monroe doc-
trine to the extent of the joint protectorate of the then proposed
canal and by Article VIII. agi'ced to waive it as respects all other prac-
ticable communications across the Isthmus connecting North and
South America, whether by canal or railway. In short, the true oper-
ation and effect of the Clayton-Bulwer Treaty is that, as respects Cen-
tral America generally. Great Britain has expressly bound herself to
the Monroe doctrine, while, as respects all water and land interoceanic
communications across the Isthmus, the United States has expressly
bound itself to so far waive the Monroe doctrine as to admit Great
Britain to a joint protectorate.
"Assuming the effect of the Clayton-]^ulwer Treaty to be as above
stated, the further inquiry is whether the Clayton-liulwer Treaty is
to be regarded as now in force, in whole or in part. This resolves
itself into the question, whether the United States is now at liberty to
§ 864.] CLAYTON-BULWER TREATY : OLNEY MEMORANDUM. 205
regard the treaty as a nullity. Great Britain's position in tlio matter
has never been doubtful, and has always been the same. She has
alwaj's insisted, and still insists, ui)on the treaty being in full life and
force. There was a period of ten years, indeed, from 1850 to ISOO,
when she undoubtedl3'did not fully comply with the provisions of the
treaty. The complaints of this countiy were as loud as they were
just, and might well have been made the ground for an annulment of
tlie treaty altogether. Great Britain undertook to meet the com-
plaints b}' suggesting modifications of the treaty or an arbiti'ation as
to the meaning of its terms, and, these expedients failing, even inti-
mated a readiness to entertain a proposal for its complete abrogation.
The proposal was declined by General Cass because, as Mr. Blaine
conjectures, he was unwilling to give the implied consent of this
country that Great Britain should be at liberty to negotiate treaties
with the Central American states unhampered by the provisions of
the Clayton-Bulwer Tieaty. 'Modification, arbitration, and abroga-
tion * * * having been flatly rejected ' — such was the language
of Lord Malmesbury — Great Britain next undertook to i)ut herself in
a position in which she could no longer be charged with violating the
treaty, by making separate treaties witli the Central American states.
Accordingly^ in 1859 and 18G0, she concluded treaties with Nicaragua
and Honduras, substantially according with tlte general tenor of the
American interpretation of the treaty. The result was hailed with
great satisfaction in this country'. The language of Pi'esident Buch-
anan, in his annual message, December, 18G0, is as follows: [Here
follows the passage from President Buchanan's Fourth Annual Mes-
sage, given supra, p 182.]
"This announcement of President Buchanan was received by Con-
gress without a symptom of dissent, and since that time everj- Admin-
istration, and, with a single exception, every Secretary' of State, has
dealt with the Clayton-Bulwer Treaty as a subsisting and binding
instrument. In 180(), Mr. Seward, writing to our Minister at St.
James, queries whether, as the renunciator}' clauses of the treaty
relate to a proposed canal, the^'^ will operate forever if no canal
should ever be begun. While thinking they would not, still, the
question being an oi)en one, he declared that neither party could
fairly do anything contrar}^ to the spirit of the treaty, and he there-
fore instructed the American minister to quietly ascertain the dispo-
sition of the British Government to favor our acquiring coaling
stations in Central America, notwithstanding the treaty. In 1872,
Mr. Fish instructed our minister to England, if certain statements
should prove to be correct, to formally remonstrate against certain
trespasses upon the territory of Guatemala as l)eing an infringement
of the Clayton-Bulwer Treaty. In 18S(), tlie then Secretary of State,
Mr. Evarts, took the same ground, in view of a rumored alienation of
the Bay Islands to Great Britain. His successor, Mr. Blaine, declared
206 INTEROCEANIC COMMUNICATIONS. [§ 364.
that the treaty Iiad been ' inisunderstaudiiigly entered into, imper-
fectly comprelieuded, contradictorily interpreted, and mutually vexa-
tious.' But, while earnestly calling for its revision on the ground of
radically changed conditions, he made no claim that the treaty was
not in being and, indeed, by the very call for revision, conclusively
admitted its existence. Mr. Bayard, in 1888, while declining to com-
ment upon any opinions of his predecessors respecting the temporary
or perpetual existence of any of the provisions of the treaty, insisted
upon them as binding upon Great Britain by her own admissions.
From these utterances from the heads of the Department of State,
there is but one dissent. Mr, Frelinghuysen, in 1882-83, took the
distinct ground that the treaty was, as he expressed it, 'voidable,'
though, if his argument be admitted to be sound, it is difficult to see
why he should not have used the term 'void,' instead of 'voidable.'
It remains to examine the grounds of Mr. Frelinghuysen's conclu-
sions, which rest upon two contentions.
"One is that the first seven articles of the treaty relate to a partic-
ular ship canal, to be constructed by a particular company, under a
particular treaty concession made in 1849; that the treaty and the
concession and the company have all passed away without the build-
ing of any canal; and that, consequently, these seven articles are
obsolete and without any subject-matter upon which to operate. One
obvious answer is that this point of Mr. Frelinghuysen, however
ingenious, is taken too late; that for thirty years the uniform con-
struction of both Great Britain and the United States, and of the
statesmen of each country, has been the other way; that this uniform
construction, which each party has so long continuously enforced
upon the other as the true construction, now estops each of them
from drawing it in question. If it were true that the parties to the
treaty, by these first seven articles, were referring only to the partic-
ular canal of the then existing company, svould the fact not have
been known and proclaimed when the treaty was new, and by the
very men who made it, and would it have been left to Mr. Freling-
hu^'sen to discover, after the lapse of more than a quai'ter of a cen-
tury? But the true answer is to be found within the four corners of
the treaty itself, in its general scope and tenor, as well as its partic-
ular language. If the first seven articles were meant to apply to the
canal of a particular existing conipan}^ there is no conceivable reason
wh}' that company and its canal should not have been precisely iden-
tified by name or in some other unmistakable manner. But the
treaty is carefully drawn to exclude any limitations of that sort.
The preamble recites that the parties desired to fix ' in a convention
their views and intentions with reference to any means of communi-
cation by ship canal whi(;h may be constructed between the Atlantic
and Pacific oceans.' The general description of the route — 'by way
of the River San Juan de Nicaragua and either or both of the lakes
§ 304.] CLAYTON-BULWER TREATY : OLNEY MEMORANDUM. 207
of Nicaragua or Managua to any port or place on the Pacific Ocean ' —
is equally general and equally comprehensive — the termini on the
Atlantic and Pacific being wholly undefined, while the character of
the intervening country makes the river and the lakes mentioned
necessary features to a greater or less extent of every canal projected
in that region. Article VII. is equally inconsistent with the idea that
any special canal or special canal company is the subject of it and
the preceding articles. The contracting parties thereby agree to give
their support and encouragement to the first person or company
offering to build the canal — with a preference to any person or com-
pany having already got contracts or expended time, money, and
trouble on the enterprise — and if the person or company so preferred
do not, within a year, furnish evidence of having procured sufficient
capital, the contracting parties may then give their aid and encour-
agement to any other person or company. Finally, to limit the
operation of the first seven articles to a particular proposed ship
canal of a then existing company is contrary to the general scope and
spirit of the whole treaty. As Article VIII. expressly declares, the
contracting parties by the convention desired, not only 'to accom-
plish a particular object, but to establish a general principle.' This
general principle is manifested by the provisions of the first seven
articles and is that the interoceanic routes there specified should,
under the sovereignty of the states traversed by them, be neutral and
free to all nations alike. The principle was to be extended to all
other practicable communications across the Isthmus by canal or
railway, and it is impossible to contend with any show of reason that
if the ship canal proposed by a company existing at the time of the
treaty failed to be built, any other like canal subsequently projected
by any other company over the like route is not also within the
application of the principle. To hold otherwise, is to hold that the
contracting parties, who were settling their relations as to all inter-
oceanic routes across the Isthmus on a permanent basis, failed to
aiiticiimte and provide for the most obvious and probable of all con-
tingencies.
"Mr. Frelinghuysen's second proposition is that the treaty is 'void-
able ' because tlie Belize district (so called) lias been transformed by
Great Britain into an organized colony. But, in the first place, the
transformation has taken place pursuant to the treaty with Honduras,
which was accepted by the United States in 18G0 as a satisfactory
compliance with the provisions of the Clayton-Bulwer Treaty. In the
next place, the Belize colony was organized in 18(52 and, until the
time of Mr. Frelinghuysen, its organization was never made a cause
of complaint by the United States. In the third place, if the organi-
zation of tlie Belize colony is to be deemed an infraction of the Clay-
t(m-Bulwer Treaty, the United States has ac(iuiesced therein too long
to claim that the treaty has thereby become null and void. If not
208 INTEROCEANIC COMMUNICATIONS. '[§364.
allogctlier estopped to treat the colony as a grievance, its onl^' remedy
is to give notice tliat it will regard the future maintenance of the
colony as a violation of the treaty and, if its remonstrance is not
heeded, to then take such further steps in the matter for the abroga-
tion of the treaty, or otherwise, as it may deem expedient. But, that
the existence of the Belize colony gives any present right to deal with
the treaty as a nullity can not be maintained for a moment.
" Besides the objections to the operation of the treaty just considered,
and which are especially apt)licable to the first seven articles, Mr.
Frelinghuysen regards the eighth article as of no vital force, for two
reasons. One is that the treaty must stand or fall as a whole, and
that, the first seven articles being assumed to be without effect for
want of a subject-matter, the eighth is not effective also. The answer
to this suggestion has already been given. Tlxe second reason given
is that by the terms of the eighth article itself, its provisions are to be
executed through treaty stipulations — none of which have been made.
But the absence of any such treaty stipulations is to be accounted for
by the fact that no occasion for making them has arisen, while it is
not perceived how the circumstance that the eighth article is not self-
executing impairs the obligation to enter into such conventions, at the
proper time or times, as will execute them. The contracting parties
having settled a principle, applied it by appropriate provisions to
the case immediately in hand. They then not merely expressed their
intent to apply it to other like cases arising in the future, but bound
themselves to do so. The obligation is imperative, and neither party
can discharge itself therefrom except either by making the required
treaty stipulations as circumstances call for them or by such honest
effort to make them that the failure to succeed can be justly attributed
only to the unreasonable demands of the other party.
"On these grounds, but one answer can fairly be made to the ques-
tion whether the United States is now at liberty to declare the Clay-
ton-Bulwer Treaty as without binding force. The suggestion for the
first time urged by Mr. Frelingliuysen — that the treaty referred to a
particular canal, to be constructed by a particular company, under a
particular concession, and became a nullity when that company ceased
to exist without building the canal — is ingenious rather than sound,
antagonizes the language of the treaty itself, and is not supported by
any contemporary conduct or construction. Against the suggestion
are to be put the utterances of all other Secretaries of State since the
treaty was made and the uniform course of the Government for
upwards of thirty years. In no instance have the former failed to
deal with the treaty as a binding obligation — in no instance, when
occasion justified it, has this Government failed to call upon Great
Britain to comply with its provisions — while, during the first ten yeai-s
of the life of the ti'caty, when it might have been abrogated, either for
violations by Great ]5ritain or with the latter's consent, the United
States steadily insisted upon holding Great Britain to its obligations.
§ 365.] CLAYTON-BULWER TREATY : MESSAGE OF 1897. 209
Under these circumstances, upon every principle which governs the
relations to each other, either of nations or of individuals, the United
States is completely estopped from denying that the treaty is in full
force and vigor.
"If changed conditions now make stipulations, which were once
deemed advantageous, either inapplicable or injurious, the true
remedy is not in ingenious attempts to deny the existence of the
treaty or to explain away its provisions, but in a direct and straight-
forward application to Great Britain for a reconsideration of the
whole matter."
Memorandum of Mr. Olney, Sec. of State, 1896, on the Clayton-Bnlwer
treaty.
As to bills pending in Congress for the construction of an interoceanic canal,
see Mr. Rodriguez, minister of the Greater Republic of Central America,
to Mr. Olney, Sec. of State, Jan. 15, 1897, For. Rel. 1896, 374-376.
" We are also indebted to it [the Monroe Doctrine] for the provisions of the
Clayton-Bulwer treaty, which both neutralized any interoceanic canal
across Central America and expressly excluded Great Britain from occu-
pying or exercising any dominion over any part of Central America. ' '
(Mr. Olney, Sec. of State, to Mr. Bayard, amb. to Great Britain, July
20, 1895, For. Rel. 1895, I. 545, 555, in relation to the Venezuelan
boundary. )
" It [the Monroe Doctrine] was at once invoked in consequence of the sup-
posed peril of Ctiba on the side of Europe; it was applied to a similar
danger threatening Yucatan; it was embodied in the treaty of the
United States and Great Britain as to Central America; it produced the
successful opposition of the United States to- the attempt of Great
Britain to exercise dominion in Nicaragua under the cover of the Mos-
quito Indians; . . ." (Report of Mr. Fish, Sec. of State, July 14,
1870, accompanying President Grant's message to the Senate of the same
date, S. Ex. Doc. 112, 41 Cong. 2 sess. 7.)
13. Recommendations by President McKinley.
§ 365.
"A subject of large importance to our country and increasing
appreciation on the part of the people, is the completion of tlie great
highway of trade between the Atlantic and Pacific known as the
Nicaragua Canal. Its utility and value to American commerce is
universally admitted. The Commission appointc^l under date of July
24th last 'to continue the surveys and examinations authorized by
the act approved March 2, 1805,' in regard to 'the proper route, feasi-
bility and cost of construction of the Nicaragua Canal, with a view
of making complete plans for the entire work of construction of such
canal,' is now employed in the undertaking. In the future I shall
take occasion to transmit to Congress the report of this Commission,
making at the same time such further suggestions as may then s<'<'m
advisable."
President McKinley, annual message, Dec. 6, 1897. (For. Rel. 1897, xxiii.)
H. Doc. 551— vol 3 U
210 INTEROCEANIC COMMUNICATIONS. [§360,
"That the construction of such a maritime highway is now more
than ever indispensable to that intimate and ready intercommunica-
tion between our eastern and western seaboards demanded by the
annexation of the Hawaiian Islands and the prospective expansion
of our influence and commerce in the Pacific, and that our national
policy now more imperatively than ever calls for its control by this
Government, are propositions which I doubt not the Congress will
duly appreciate and wisely act upon."
President McKinley, annual message, Dec. 5, 1898. (For. Rel. 1898, Ixxi.)
"The great importance of this work can not be too often or too strongly
pressed upon the attention of the Congress. In my message of a year
ago I expressed my views of the necessity of a canal which would link
the two great oceans, to which I again invite your consideration. The
reasons then presented for early action are even stronger now. ' ' ( Presi-
dent McKinley, annual message, Dec. 5, 1899, For. Rel. 1899, xvii.)
14. Hay.Pauncefote treaty, 1901.
§366.
Feb. 5, 1900, Mr. Hay, Secretary of State, and Lord Pauncefote,
British ambassador, signed at Washington a conven-
^**^900 ^ ' t.ion,theobjectof^vhichwasdeclaredtobe "tofacilitate
the construction of a ship canal to connect the Atlantic
and Pacific Oceans, and to that end to remove any objection which
may arise out of the convention of Ai^ril 19, 1850, commonly called
the Clayton-Bulwer treaty, to the construction of such canal under the
auspices of the Government of the United States, without impairing
the 'general principle' of neutralization established in Art. YIII. of
that Convention. "«
The convention of Feb. 5, 1900, was communicated to the Senate,
with a message of the President bearing date as of the same day.*
The Senate gave its advice and consent to the exchange of ratifica-
tions, with certain amendments,*^ which are denoted below in italics,
except in the case of Art. III., which, as is indicated by brackets, was
stricken out. Art. IV. being made Art. III. :
Article I. It is agreed that the canal may be constructed under the auspices of
the Government of the United States, either directly at its own cost or by gift or
loan of money to individuals or corporations or through subscription to or pur-
chase of stock or shares, and that, siibject to the i)rovisions of the present Conven-
tion, the said Government shall have and enjoy all the rights incident to such
constraction, as well as the exclu.sive right of providing for the regulation and
management of the canal.
«See Mr. Hay, Sec. of State, to Mr. White, charge at London, No. 976, Dec. 7,
1898, MS. Inst.Gr. Br. XXXIII. 40; and Mr. White's No. 613, of Dec. 23. 1899.
'>S. Doc. IfiO, .^»0 Cong. 1 sess.
'"See, as to the amendments, report of Mr. Davis. Com. on For. Rel.. March 9.
1900, and statement of Mr. Morgan, for the minority, S. Ex. Report, No. 1, 56
Cong. 1 sess., printed as S. Doc. 368, 56 Cong. 1 sess.
§36G.] HAY-PAUNCEFOTE TREATY. 211
Article II. The High Contracting Parties, desiring to presei've and maintain
the ' ' general principle " " of neutralization established in Article VIII. of the (Jlayton-
Bnlwer Convention, icJiidi cnnvention is herehij superseded, adopt, as the basis of
such neutralization, the following rules, substantially as embodied in the conven-
tion between Gre^at Britain and certain other Powers, signed at Constantinople
October 29, 1888, for the Free Navigation of the Suez Maritime Canal, that is to
say:
1. The canal shall be free and open, in time of war as in time of peace, to the
vessels of commerce and of war of all nations, on terms of entire equality, so that
there shall be no discrimination against any nation or its citizens or subjects in
respect of the conditions or charges of traffic, or otherwise.
2. The canal shall never be blockaded, nor shall any right of war be exercised
nor any act of hostility be committed within it.
3. Vessels of war of a belligerent shall not revictual nor take any stores in the
canal except so far as may be strictly necessary; and the transit of such vessels
through the canal shall be effected with the least possible delay, in accordance with
the regulations in force, and with only such intermission as may result from the
necessities of the service.
Prizes shall be in all respects subject to the same rules as vessels of war of the
belligerents.
4. No belligerent shall embark or disembark troops, munitions of war or warlike
materials in the canal except in case of accidental hindrance of the transit, and in
such case the transit shall be resumed with all possible dispatch.
5. The provisions of this article shall apjily to waters adjacent to the canal,
within three marine miles of either end. Vessels of war of a belligerent shall
not remain in such waters longer than twenty-four hours at any one time except
in case of distress, and in such case shall depart as soon as possible: but a vessel
of war of one belligerent shall not depart within twenty-four hours from the
departure of a vessel of war of the other belligerent.
It is agreed, hoicever, that none of the immediately foregoing conditions and
stipulations in sections numbered one, tiro, three, four, and five of th is article shall
apply to measures which the United States may find it necessary to take for secur-
ing by its own forces the defense of the United States and the maintenance of 2')ublic
order.
6. The plant, establishments, buildings, and all works necessary to the con-
struction, maintenance and operation of the canal shall be deemed to be part
thereof, for the i)urposes of this convention, and in time of war as in time of peace
shall enjoy complete immunity from attack or injury liy belligerents and from
acts calculated to impair their usefulness as j^art of the canal.
7. No fortifications shall be erected commanding the canal or the waters adja-
cent. The United States, however, shall be at liberty to maintain such military
police along the canal as may be necessary to protect it against lawlessness and
disorder.
[Article III. The High Contracting Parties wnll, immediately upon the exchange
of the ratifications of this Convention, bring it to the notice of the other Powers
and invite them to adhere to it.]
Article IV. The present convention shall be ratified by the President of the
United States, by and with the advice and consent of the Senate thereof, and by
Her Britannic Majesty; and the ratifications shall be exchanged at Washington
or at London within six months from the date hereof, or earlier if ix)ssible. (Sen.
Doc. 85, 57 Cong. 1 sess. 7.)
212 INTEROCEANIC COMMUNICATIONS. [§ 3()<).
"Ill the (lespatcli which I addressed to Lord Paiincefote on the
22iid Fobriiary last, and whicli was coinniunicated to
Negotiation as to j^f,. jj^y on the 11th March, I explained the reasons
amen ments, f,),.^Y.]ji^,]| I lis Majesty's (Tovernment were Unable to
Lord Lansdowne s ^ , -,,•,,-,■,■, ,^
_„ „„j„™ accept tlie amend ments introduced by the Senate of
memorandum, '^ •^
Aug. 3, 1901. t-he United States into the convention, signed at
Washington in February 1900, relative to the con-
struction of an interoceanic canal.
"The amendments were three in number, namely: . . .
"2. The objections entertained by His Majesty's Government may
be briefly stated as follows:
"(1.) The Claytori-Bulwer convention being an international com-
pact of unquestionable validity could not be abrogated or modified
save with the consent of both parties to the contract. No attempt
had, however, been made to ascertain the views of Her late Majesty's
Government. The convention dealt with several matters for which
no provision had been made in the convention of February, 1900, and
if the former were wholly abrogated both powers would, except in the
vicinity of the canal, recover entire freedom of action in Central
America, a change which might be of substantial importance.
" (2.) The reservation to the United States of the right to take any
measures which it might find necessary to secure by its own forces
the defence of the United States appeared to His Majesty's Govern-
ment to involve a distinct departure from the principle of neutraliza-
tion which until then had found acceptance with both Governments,
and which both were, under the convention of 1900, bound to uphold.
Moreover, if the amendment were added, the obligations to respect
the neutrality of the canal in all circumstances would, so far as Great
Britain was concerned, remain in force; the obligation of the United
States, on the other hand, would be essentially modified. The result
would be a one-sided arrangement, under which Great Britain would
be debarred from an}' warlike action in or around the canal, while the
United States would be able to resort to such action even in time of
peace to whatever extent they might deem necessaiy to secure their
own safety.
"(3.) The omission of the Article inviting the adherence of other
powers placed this country in a position of marked disadvantage
compared with other powers; while the United States would have a
treaty i-ight to interfere with the canal in time of war, or api)rehended
war, and while other jjowers could with a clear conscience disregard
any of the restrictions inijiosed by the convention of 1900, (ireat
Britain alone would be absolutely precluded from resorting to any
such action or from taking measures to secure her interests in and
near the canal.
" For these reasons His Majesty's Government preferred, as matters
stood, to retain unmodified the piovisions of the Clayton-Bulwer con-
§300.] HAY-PAUNCEFOTE TREATY. 218
veniion. They liad, liowever, throughout the negotiations given evi-
dence of their earnest desire to meet the views of the United States,
and would sincerely regret a failure to come to an amicable under-
standing in regard to this impcn'tant subject.
"3. Mr. Hay, rightly apprehending that His Majesty's Government
did not intend to preclude all further attemi)t at negotiation, has
endeavoured to find means by which to reconcile such divergencies of
view as exist between tlie two Governments, and has communicated
a further draft of a treaty for the consideration of His Majesty's
Government.
"Following the order of the Senate amendments, the convention
now proposed —
''(1.) Provides by a separate Article that the Clayton-Bulwer con-
vention shall be superseded.
"(2.) The paragrapli inserted by tlie Senate after section 5 of Article
n. is omitted.
"(3.) The Aj'ticle inviting other powers to adhere is omitted.
" Tliere are three other points to which attention must be directed : —
"(a.) The words 'in time of war as in time of peace' are omitted in
Rule 1.
"(?>.) Tlie draft contains no stipulation against the acquisition of
sovereignty over the isthmus or over the strip of territory through
which the canal is intended to pass. There was no stipulation of this
kind in the llay-Pauncefote convention; but, by the surviving por-
tion of Article I. of the Clayton-Bulwer convention, the two Govern-
ments agreed that neither would ever 'occupj^ or fortify, or colonize,
or assume, or exercise any dominion over Nicaragua, Costa Rica, the
Mosquito coast, or any part of Central America,' nor attain any of the
foregoing objects by protection offered to, or alliance with, any State
or j)eople of Central America.
"(c.) While the amendment reserving to the United States the right
of providing for the defence of the canal is no longer pressed for, the
first portion of Rule 7, providing that ' no fortifications shall be erected
commanding the canal or the waters adjacent,' lias been omitted.
The latter portitm of the Rule has been incorporated in Rule 2 of the
new draft, and makes provision for militaiy jiolice to protect the canal
against lawlessness and disorder.
"4. I fully i-ecognize the frier.dly spirit which has prompted Mr. Hay
in making further proposals for the settlement of the question, and
wliile in no way abandoning the position which His Majesty's (Tovern-
ment assumed in rejecting the Senate amendments, or admitting that
the despatch of the 22nd of February was otlier than a well-founded,
moderate, and reasonable statement of tlu; British case, I have exam-
ined the draft treaty with every wish to ai'rive at a conclusion which
shall facilitate the consti'uction of an interoceanic canal by the United
States, without involving on llic part of His .Majesty's (iovernment
214 INTEROCEANIC COMMUNICATIONS. [§ 3G6.
any departuro from tlic principles for wliicli tliey have throughout
contended.
"5. In form the new draft differs from the convention of 1000,
under which the Ili^jh Contracting Parties, aft«r agreeing that the
canal might be constructed by the United States, undertook to adopt
certain Rules as the basis upon which the canal was to be neutralized.
In the new draft the United States intimate //«e/r readiness 'to adopt'
somewhat similar Rules as the basis of the neutralization of the canal.
It would appear to follow that the wholes responsibility for upholding
these Rules, and thereby maintaining the neutrality of the canal,
would henceforward be assumed by the Government of the United
States. The change of form is an important one, but in view of the
fact that the wliole cost of the construction of the canal is to be borne
by that Government, which is also to be charged with such measures
as may be necessary to protect it against lawlessness and disorder,
His Majesty's Government are not likely to object to it.
" 6. The proposal to abrogate the Claj'ton-Bulwer convention is not,
I think, inadmissible if it can be shown that sufficient provision is
made in the new treaty for such portions of the convention as ought,
in the interests of this country, to remain in force. This aspect of
the case must be considered in connection with the provisions of
Article I. of the Clayton-Bulwer convention which have alreadj^ been
quoted, and Article VIII. referred to in the preamble of the new
treaty.
" Thus, in view of the permanent character of the treaty to be con-
cluded and of the 'general principle ' reaffirmed thereby as a perpetual
obligation, the High Contracting Parties should agree that no change
of sovereignty or other change of circumstances in the territory
through which the canal is intended to pass shall affect such ' general
principle' or release the High Contracting Parties, or either of them,
from their obligations under the treaty, and that the Rules adopted
as the basis of neutralization shall govern, so far as possible, all
interoceanic communications across the isthmus.
"I would therefore pi-opose an additional Article in the following
terms, on the acceptance of which His Majesty's Government would
probably be prepared to withdraw their objections to the formal abro-
gation of the Clayton-Bulwer convention : —
" 'In view of the permanent character of this treaty, whereby the
general principle established by Article VIII. of the Clayton-Bulwer
convention is reaffirmed, the High Contracting Parties hereby declare
and agree that the Rules laid down in the last preceding Article shall,
so far as they may be applicable, govern all interoceanic communica-
tions across the isthmus which connects North and South America,
and that no change of tei-ritorial sovereignt}^ or other change of cir-
cumstances, shall affect such general principle or the obligations of
§300.] HAY-PAUNCEFOTE TREATY. 215
tlie High Contracting Parties und<H- the present treaty.' [This article
is referred to as III. A, in the subsequent discussion.]
" 7. The various points connected with the defence of the canal may
conveniently be considered together. In the present draft the Senate
amendment has been dropped, which left the United States at libertj^
to apply sucli measures as might be found ' necessarj" to take for secur-
ing bj'^ its own forces the defence of the United States.' On the other
liand, the words ' in time of war as in time of peace' are omitted from
Rule 1, and there is no stipulation, as originally in Rule 7, prohibit-
ing the erection of fortifications commanding the canal or the waters
adjacent.
" I do not fail to observe the important difference between the ques-
tion as now presented to us and the position which was created by
the amendment adopted in the Senate.
"In my despatcli I pointed out the dangerous ambiguity of an instru-
ment of which one clause permitted the adoption of defensive meas-
ures, while another proliibited the erection of fortifications. It is
most important that no doubt should exist as to the intention of the
Contracting Parties. As to this, I understand that by the omission
of all reference to the matter of defence the United States' Government
desire to reserve the power of taking measures to protect the canal,
at any time when the United States may be at war, from destruction
or damage at the liands of an enemy or enemies. On the other hand,
I conclude that, with the above exception, there is no intention to
derogate from the principles of neutrality laid down by the Rules.
As to the first of these propositions, I am not prepared to deny that
contingencies may arise when not only from a national point of view,
but on behalf of the commercial interests of the whole world, it might
be of supreme importance to the United States that they should be
free to adopt measures for the defence of the canal at a moment when
they were themselves engaged in hostilities.
" It is also to be borne in mind that, owing to the omission of the words
under which this countrj'^ became jointly bound to defend the neu-
trality of the canal, and the abrogation of the Claj-ton-Bulwer treaty,
the obligations of Great Britain would be materially diminished.
"This is a most imjiortant consideration. In my despatch of the
22nd February, I dwelt upon the strong objection entertained by His
Majesty's Government to any agreement under which, while the United
States would have a treaty right to interfere with the canal in time of
war, or api^rehended war, Great J^ritain alone, in spite of lier vast
possessions on the American continent, and the extent of her inter-
ests in the East, would be absolutely precluded from resorting to any
such action, or from taking measures to secure her interests in and
near the canal. The same exception could not be taken to an arrange-
ment under which, supposing that the United States, as the power
owning the canal and responsible for the maintenance of its neutrality.
216 INTEROCEANIC COMMUNICATIONS. [§ '^^>^>-
should find it necessary to interfere temporarily with its free use by
the shipping of another power, that power would thereupon at once
and ipso faeto become liberated from the necessity of observing the
Rules laid down in the new treaty.
"8. The difficulty raised by the absence of any provision for the
adherence of other powers still remains. While indifferent as to the
form in which the point is met, I must emphatically renew the objec-
tions of His Majesty's Government to being bound by stringent Rules
of neutral conduct not equally binding upon other powers. I would
therefore suggest the insertion in Rule 1, after ' all nations,' of the
words ' which shall agree to observe these Rules.' This addition will
impose upon other powers the same self-denying ordinance a« Great
Britain is desired to accept, and will furnish an additional security
for the neutrality of the canal, which it will be the duty of the United
States to maintain.
"As matters of minor importance, I suggest the renewal of one of
the stipulations of Article VIII. of the Clayton-Bulwer convention by
adding to Rule 1 the words ' such conditions and charges shall be just
and equitable,' and the adoption of 'treaty' in lieu of 'convention'
to designate the international agreement which the High Contracting
Parties may conclude.
"Mr. Hay's draft, with the proposed amendments shown in italics,
is annexed."
Memorandiiin, accompanying a dispatch of Lord Lansdowne, Foreign Sec-
retary, to Mr. Lowther, charge, Aug. 3, 1901, Pari. Pap.. United States,
No. 1 (1902), 2.
"I have to inform 3'ou that I have learned from Lord Pauncefote
Lord Lansdowne ^^^* ^^^*- ^^^ ^^^ ^^^^ before the President the mem-
to Mr. Lowther, orandum, a copy of which was forwarded to you in
Sept. 12, 1901. j^y despatch of the 3rd August.
"Mr. McKinley regarded, as did Mr. Hay, the consideration shown
to the last proposals of the United States' Government relative to
the Interoceanic Canal Treaty as in the highest degree friendly and
reasonable.
"With regard to the changes suggested by His Majesty's Govern-
ment, Mr. Hay was apprehensive that the first amendment proposed
to clause 1 of Article III. would meet with opposition because of the
strong objection entertained to inviting other powers to become con-
tract parties to a treaty affecting the canal. If His Majesty's Gov-
ernment found it not convenient to accept the draft as it stood, they
might perhaps consider favourably the substitution for the words ' the
canal shall be free and open to the vessels of commerce and of war of
all nations which shall agree to observe these Rules' the words 'the
canal shall be free and open to the vessels of commerce and of wai'of
all nations observing these Rules,' and instead of 'any nation so
§3f)6.] HAY-PAUNCEPOTE TREATY. 2l7
agreeing' the words 'any such nation.' This, it seemed to Mr. Hay,
would accomplish the purpose aimed at by His Majesty's (xovernment.
"The second amendment in the same clause, providing that con-
ditions and charges of traffic shall be just and equitable, was accepted
by the President.
"Coming to Article numbered III. a, which might be called Article
IV., Mr. Hay pointed out that the preamble of the draft treaty retained
the declaration that the general principle of neutralization estal)lished
in Article YIII. of the Clayton-Bulwer convention was not impaired.
To reiterate this in still stronger language in a separate article, and
to give to Article VIII. of the Clayton-15ulwer convention what seemed
a wider application than it originally had, would, Mr. Hay feared, not
meet with acceptance.
"If, however, it seemed indispensable to His Majesty's Government
that an article providing for the contingency of a change in sover-
eignty should be inserted, he thought it might state that: —
"' It is agreed that no change of territorial sovereignty or of the
international relations of the country traversed by tlie before-men-
tioned canal shall affect the general principle of neutralization or the
obligation of the High Contracting Parties under the present treaty.'
This would cover the point in a brief and simple way.
"In conclusion, Mr. Hay expressed his appreciation of the friendly
and magnanimous spirit shown by His Majesty's Goveirnment in the
treatment of this matter, and his hope that a solution would be
attained which would enable the United States' Government to start
at once upon the great enterprise which so vitally concerned the whole
world, and especially Great Britain, as the firstof commercial nations."
Marquis of Lansdowne to Mr. Lowther, Sept. 12, 1901, Pari. Pap., United
States, No. 1 (1902), 7.
"I informed the United States' charge d'affaires to-day that
His Majesty's Government had given their careful
Lord Lansdowne {attention to the various amendments which had been
to Lord Fanncefote, i. j • ^.i, ^ i?^ x ^ • /i i m ^
n * o« 1QA1 suggested m the draft Interoceanic (anal Treaty,
communicated by Mr. Hay to your lordship on the
25th April last, and that I was now in a position to inform him offi-
cially of our views.
"Mr. Hay had suggested that in Article III., Rule 1, we should sub-
stitute for the words ' the canal shall be free and ojien to the vessels of
commerce and of war of all nations which shall agree to observe these
Rules,' &c., the words 'the canal shall be free and open to the vessels
of commerce and of war of all nations observing these Rules,' and in
the same clause, as a consequential amendment, to substitute for the
words 'any nation so agreeing' the words 'any such nation.' His
Majesty's Government were prepared to accept this amendment, which
seemed to us equally efficacious for the purpose which we had in view,
218 INTEROCEANIC COMMUNICATIONS. [§800/
namely, that of insuring that Great Britain should not bo placed in a
less advantageous position than other powers, wliile they stopped
short of conferring upon otlier nations a contractual right to the use
of the canal.
" We were also prepared to accept, in lieu of Article III, a, the new
Article IV. proposed by Mr. Hay, which, with the addition of the
words ' or countries' proposed in the course of the discussions here,
runs as follows: —
" 'It is agreed that no change of territorial sovereignty or of the
international relations of the country or countries traversed by the
before-mentioned canal shall affect the general principle of neutrali-
zation or the obligation of the High Contracting Parties under the
present treaty. '
"I admitted that there was some force in the contention of Mr. Hay,
which had been strongly supported in conversation with me by Mr.
Choate, that Article III. A, as drafted by His Majesty's Government,
gave to Article VIII. of the Clayton-Bulwer Treaty a wider application
than it originally possessed.
"In addition to these amendments, we proposed to add in the pre-
amble, after the words ' being desirous to facilitate the construction
of a ship canal to connect the Atlantic and Pacific Oceans,' the words
'by whatever route may be considered expedient,' and 'such ship
canal ' for ' said ship canal ' in the first i^aragraph of Article III. , w ords
which, in our opinion, seemed to us desirable for the purpose of remov-
ing any doubt which might possibly exist as to the application of the
treaty to any other interoceanic canals as well as that through Nica-
ragua.
" I handed to Mr. White a statement, showing the draft as it origi-
nally stood and the amendments proposed on each side."
Marquis of Lansdowne to Lord Pauncef ote, Oct. 23, 1901, Pari. Pap., United
States, No. 1 (1902), 8.
"Upon your return to Washington, I had the honour to receive
from you a copy of the instruction addressed to you
Mr. Hay to Lord ^^^ ^j^^ gSrd October last by the Marquess of Lans-
Pauncefote, Nov. 8, , ,. ii-i^ii, xi
downe, accepting and reducing to njial shape the
various amendments in the draft of an Interoceanic
Canal Treatj% as developed in the course of the negotiations lately
conducted in London, through Mr. Choate, with yourself and Lord
Lansdowne.
"The treaty, being thus brought into a form representing a com-
plete agreement on the part of the negotiators, has been submitted to
the President, who approves of the conclusions reached, and directs
me to ijroceed to the formal signature thereof.
" I have, accordingly, the pleasure to send you a clear copy of the
text of the treaty, embodying the several modifications agreed upon.
Upon being advised by you that this text correctly represents your
§366.] HAY-PAUNCEFOTE TREATY. 219
iinderstaddiiig of the jigreement thus happily brought about, the
treaty will be engrossed for signature at such time as may be most
convenient to you."
Mr. Hay, Sec. of State, to Lord Paiincefote, Brit, ambassador, Nov. 8, 1901,
Pari. Pap., United States. No. 1 (1903), 9.
The treaty was signed Nov. IS, 1901, and submitted to the Senate Dec. 4.
The following record indicates the action of the Senate:
Decembek 4. 1901. — Read; treaty read the first time and referred to the
Committee on Foreign Relations and, together with the message, ordered
to be printed in confidence for the use of the Senate.
December 9, 1901. — Reported without amendment.
December 10, 1901.— Injunction of secrecy removed.
December 16, 1901. — Ratified: injunction of s3orecy removed from proposed
amendments and votes thereon, and vote of ratification.
For the Hay-Pauncefote treaty of Feb. 5. 1900, with the Senate's amend-
ments: and the treaty of Nov. 18. 1901, with i)roposed amendments and
the votes thereon, see S. Doc. So, 57 Cong. 1 sess., second corrected
print, April 8, 1902.
"The United States of America and His Majesty Edward the
Seventh, of the United Kingdom of Great Britain and
1^8 1901 °^^°^" Ireland, and of the British Dominions beyond the
Seas, King, and Emperor of India, being desirous to
facilitate the construction of a ship canal to connect the Atlantic
and Pacific Oceaiis, by whatever route may be considered expedient,
and to that entV to remove any objection which may arise out of the
Convention of the 19th April, 1850, commonly called the Clayton-
Bulwer Treaty, to the construction of such canal under the auspices
of the Government of the United States, without impairing the
"general principle" of neutralization established in Article VIII.
of that Convention, have for that purpose appointed as their Pleni-
potentiaries:
"The President of the United States, John Hay, Secretary of State
of the United States of America;
"And his Majesty Edward the Seventh, of the United Kingdom of
Great Britain and Ireland, and of the British Dominions beyond the
Seas, King, and P^mperor of India, tlie Riglit Honourable Lord Paunce-
fote, G. C ]>., G. C. M. G., Ilis Majesty's Ambassador Extraordinary
and Plenipotentiar}^ to the United States;
" Wlio, having communicated to each other their full iiowers whicli
were found to bo in due and jjroper form, have agreed upon the fol-
lowing Articles: —
"Article I. The High Contracting Parties agree that the present
Treaty shall supersede the afore-mentioned Convention of tlie lOtli
April, 1850.
"Article II. It is agreed that the canal maybe constructed undci-
theauspices of tlie Government of tlie United States, oithei- directly at
its own cost, or by gift or loan of money to individuals or Corporations,
220 INTEROCEANIC COMMUNICATIONS. [§ 36C.^
or through 8ub{4criptioii to or purchase of stock or shares, and that,
subject to the provisions of the present Treaty, the said Government
shall have and enjoy all the rights incident to such construction, as
well as the exclusive right of providing for the regulation and man-
agement of the canal.
"Article III. The United States adopts, as the basis of the neu-
tralization of such ship canal, the following Rules, substantially
as embodied in the Convention of Constantinople, signed the 28th
October, 1888, for the free navigation of the Suez Canal, that is to
say:
" 1. The canal shall be free and open to the vessels of commerce and
of war of all nations observing these Rules, on terms of entire equality,
so that there shall be no discrimination against any such nation, or its
citizens or subjects, in respect of the conditions or charges of traffic,
or otherwise. Such conditions and charges of traffic shall be just and
equitable.
" 2. The canal shall never be blockaded, nor shall any right of war
be exercised nor any act of hostility be committed within it. Tlie
United States, however, shall be at liberty to maintain such military
police along the canal as may be necessary to protect it against law-
lessness and disorder,
" 3. Vessels of war of a belligerent shall not revictual nor take any
stores in the canal except so far as may be strictl}^ necessarj* ; and
the transit of such vessels through the canal shall be effected with
the least possible delay in accordance with the Regulations in force>
and with only such intermission as may result from the necessities of
the service.
" Prizes shall be in all respects subject to the same Rules as vessels
of war of the belligerents.
" 4. No belligerent shall embark or disembark troops, munitions of
war, or warlike materials in the canal, except in ease of accidental
hindrance of the transit, and in such case the transit shall be resumed
with all possible dispatch.
" 5. The provisions of this Article shall apply to waters adjacent to
the canal, within 3 marine miles of either end. Vessels of war of a
belligerent shall not remain in such waters longer than twenty-four
hours at any one time, except in case of distress, and in such case,
shall depart as soon as possible; but a vessel of war of one belligerent
shall not depart within twentj'-four hours from the departure of a
vessel of war of the other belligerent.
"6. The plant, establishments, buildings, and all works necessary
to the construction, maintenance, and operation of the canal shall be
deemed to be part thereof, for the puiT[ioses of this Treaty, and in
time of war, as in time of peace, shall enjoy complete immunity from
attack or injury bj^ belligerents, and from acts calculated to impair
their usefulness as part of the canal
§?>()(;.] HAY-PAUNCEFOTE TREATY. 221
"Article IV. It is agreed that no change of territorial sovereignty
or of the international relations of the country or countries traversed
by the before-mentioned canal shall affect the general principle of
neutralization or the obligation of the High Contracting Parties
under the present Treaty.
"Article V. Tlie i^resent Treaty sliall be ratified b}^ the President
of the United States, by and with tlie advice and consent of the Sen-
ate thereof, and by Ilis Britannic Majesty; and the ratifications shall
be exchanged at Washington or at London at the earliest possible
time within six months from the date hereof.
" In faith whereof the respective Plenipotentiaries have signed this
Treaty and thereunto affixed their seals.
"Done in duplicate at AVashington, the 18th day of November, in
the year of Our Lord one thousand nine hundred and one.
"John Hay. [seal.]
"Pauncefote. [seal.]"
As to negotiations with Colombia, Costa Rica, and Nicaragua, with reference
to the construction of the canal hy the United States, see H. Doc. 611, 57 Cong.
1 sess.
See, also, "An act to provide for the construction of a canal connecting the
waters of the Atlantic and Pacific oceans," approved June 28, 1902, o2 Stat., pt.
I. 481.
"No single great material work which remains to be
., ^^ ,^ undertaken on this continent is of such conse(iuence
ident Boosevelt. ^
to the American people as the building of a canal
across the Isthmus connecting North and South America. Its impor-
tance to the Nation is by no means limited merely to its material
effects upon our business prosperity ; and yet with a view to these effects
alone it would be to the last degree important for us immediately to
begin it. While its beneficial effects would perhaps be most marked
upon the Pacific Coast and the Gulf and South Atlantic States, it
would also greatly benefit other sections. It is emphatically a work
which it is for the interest of the entire country to begin and complete
as soon as possible; it is one of those great works whicli only a great
nation can undertake with prospects of success, and which when done
are not onlj' permanent assets in the nation's material interests, but
standing monuments to its constructive ability.
"I am glad to be able to announce to 3^011 tlmt our negotiations on
this subject with Great Britain, conducted on both sides in a spirit
of friendliness and mutual good will and respect, have resulted in my
being able to lay before the Senate a treaty which if ratified will
enable us to begin preparations for an Isthmian canal at anytime, and
which guarantees to this Nation every right that it has ever asked in
connection with the canal. In this treaty', the old Chiyton-Bulwer
treaty, so long recognized as inadequate to supply the base for the
construction and maintenance of a necessarily American ship canal.
222 INTEROCEANTC COMMUNICATIONS. [§ 3()7.
is abrogated. It specifically provides that the llniled States alone
shall do the work of building and assume the responsibility of safe-
guarding the canal and shall regulate its neutral use by all nations
on terms of e<juality without the guai'anty or interference of any out-
side nation from any quarter. Tlie signed treaty will at once be laid
before the Senate, and if approved the Congress can then proceed to
give effect to the advantages it secures us by providing for the build-
ing of the canal."
President Roosevelt, annual message. Dec. 3, 1901 . (For. Rel. 1901 , p. xxxv. )
The second international conference of Amei-ican
Eesolution of j^itates, held at the city of Mexico in 1901-02, unani-
Second nterna- ,j.jQ^,g]y adopted a resolution apidauding the purpose
_ , of the United States to construct an interoceanic
uonierence
canal, and declaring that this work not only would be
"worthy of the greatness of the Aniei-ican people," but would also be
"in the highest sense a Avork of civilization and to the greatest degree
beneficial to the develojjment of commerce between the American
states and the other countries of the world."
Second Int. Conf. of Am. States, S. Doc. 330, 57 Cong. 1 sess. 30, 173.
15. Mosquito Question, since 1860.
§367.
Instructions of
Mr. Fish, 1873.
" The purposes of that Government were in the main
accomplished. On the 28th of January, 18G0, a treaty
between Great Britain and Nicaragua was signed at
Managua. Though this instrument restored to that republic the
nominal sovereignty over that part of its territory which had pre-
viously been claimed as belonging to the kingdom of the Mosquitos, it
assigned boundaries to the Mosquito Reservation probably beyond
the limits which anj' member of that tribe had ever seen, even when
in chase of wild animals. Worst of all, however, it confirmed the
grants of land previouslj'^ made in Mosquito territory. The similar
stipulation on this subject in the Dallas-Clarendon treaty was perhaps
the most objectionable of any, as it violated the cardinal rule of all
European colonists in America, including Great Britain herself, that
the aborigines had no title to the soil which they could confer upon
individuals. . . .
"It is suxjposed that the expedition of Walker to Nicaragua made
such an unfavorable impression on public opinion there, in respect to
this country, as to prepare the way for the treaty with Great Britain.
A rumor was current in that quarter, and was by many believed to be
true, that AValker was an agent of this Government, which, it was sup-
posed, had covertly sent liim thitherto obtain control of the countrj\
This, however, was so far from the truth that everything within its
g 3G7.] MOSQUITO QUESTION SINCE 1860. 223
power was done by this Government towards preventing the departure
of Walker.
"Besides the treaty with Nicaragua, just adverted to, there was a
treaty between Great Britain and Honduras, signed on the 28th Novem-
ber, 1859, the main object of wliich was the restitution to the latter of
the Bay Islands, which had for some time before been converted into
a British colony.
"This treaty also contained stipulations in regard to Mosquito
Indians in Honduras territory similar to that in the treaty with
Nicaragua.
"On the 30th of April, 1859, a treaty between Great Britain and Gua-
temala was also signed, by which the boundaries of the British settle-
ment at Belize, so called, were extended to the Sai'stoon River. This
instrument contained provisions for the appointment of commissioners
to mark the boundaries, and for the construction of a road from
Guatemala to the fittest place on the Atlantic coast near Belize. By
a supplementary convention between the parties, of the 5th of August,
18G3, Great Britain agreed, upon certain conditions, to contribute
fifty thousand pounds sterling towards the construction of the road
referred to,
"From the note of the ith of December last, addressed to this
Department by Mr. Dardon, the minister of Guatemala here, a copy
of which is inclosed, it appears that when the joint commission for
running the boundary line reached the Sarstoou River the British
commissioner, finding that his countrymen were trespassing beyond
that limit, refused to i)roceed, and the stipulation on the subject, if
not virtually canceled, has at least been suspended.
"The supplementary convention not having been ratified by Guate-
mala in season, it is stated that the British Government has notified
that of Guatemala that it would regai'd the stipulation on the sub-
ject of the road contained in tlie treaty of 1859 as at an end.
"Other important information on these subjects is contained in
the letter and its accompaniments of Mr. Henry Savage, to this
Department of the 10th of October last, a copy of which is inclosed.
He is a native of this country and at one time was consul at Guatemala.
"He has frequently, in the absence of a diplomatic agent of the
United States in that quarter, furnished this Department with valu-
able information in regard to Central American affairs.
"Mr. Dardon says that his Government also regards its treaty of
1859 with Great Britain at an end, and requests on its behalf the
cooperation and support of this Government toward i)re venting further
encroachments by British subjects on tlie territory of Guatemala. It
is believed that if such encroachments are authoiized or countenanced
by that Government it will be tantamount to a breach of its engage-
ment not to occupy any part of Central America. Before, however,
officially mentioning the subject to Earl Granville, it would be advis-
224 INTEROCEANIC COMMUNICATIONS. [§ 307.
able to ascertain tlie correctness of the representation of Mr. Dardon,
as to the cause of the discontinuance of the deraarkation of the
boundary.
"If tlie statement of that gentleman shouhi prove to be correct, you
will then formally remonstrate against any trespass by British subjects,
with the connivance of their Government, upon the territory of Guate-
mala, as an infringement of the Clayton-Bulwer treaty, which will be
very unacceptable in this country."
Mr. Fish, Sec. of State, to Mr. Schenck, min. to England, April 26, 1873, Cor-
respondence in relation to the Proposed Interoceanic Canal (Washing-
ton, 1885), 16, 310.
See, on the same subject, Mr. F. W. Seward, Act. Sec. of State, to Mr. Pierre-
pont, min. to England, Sept. 11, 1877. MS. Inst. Gr. Br. XXV. 6, enclos-
ing copy of a note from Mr. Montufar, Guatemalan Min. of For. Aff., to
Mr. Evarts, Sec. of State, July 23, 1877, and Mr. Evarts' reply of Sept.
13, 1877. It is stated by Mr. Seward that General Schenck acknowledged
the receipt of Mr. Fish's instniction of April 26, 1873, '" but decided not
to carry it into effect, until he had conferred with the minister of Gua-
temala at London. It can not be ascertained that he afterwards offi-
cially mentioned the subject.''
It appears, however, that General Schenck reported that the British Govern-
ment afterwards disclaimed " any purpose or policy . . . inconsistent
with the stipulations with Nicaragua."' (Mr. Fish, Sec. of State, to
Mr. Williamson, min. to Costa Rica, May 3, 1875, MS. Inst. Costa Rica,
XVII. 242, enclosing copy of Gen. Schenck's No. 737, of April 17, 1875.)
Aug. 16, 1875, Mr. Cadwalader, Acting Sec. of State, enclosed to Mr.
Williamson copy of a confidential note from Sir Edward Thornton, of
Aug. 12, 1875, transmitting certain correspondence touching the rela-
tions between Nicaragua and the Mosquito territory. (MS. Inst. Costa
Rica, XVII. 256.)
March 25, 1876, Mr. Fish informed Sir Edward Thornton that no objection
was seen " to the appointment of Her Majesty's consul at Greytown as
the agent of the Mosqiiito Indians to receive from . . . Nicaragua and
Honduras the sums due to that tribe pursuant to treaties between
those Republics and Great Britain." (MS. Notes to Gr. Br. XVII. 115.)
It has been seen that the treat}' between Great Britain and Nicara-
gua, signed at Managua, Jan. 28, 1860, was accepted
f A^*tr° 188^*"'^^^^^ satisfactory settlement of the Mosquito question,
on the assuuiption that it put an end to the British
protectorate. Differences between Great Britain and Nicaragua, how-
ever, afterwards arose as to the effect of certain provisions of the
treaty. Tliose differences were ultimately submitted to the Emperor
of Austria, who, on July 2, 1881, rendered the following award :
"Article T. Tlie sovereignty of tlie Republic of Nicaragua, which
was recognized bj^ Articles I. and II. of the Treaty of Managua of the
28th January 1800, is not full and unlimited with regard to the terri-
tory assigned to the Mosquito Indians, but is limited by the self-
government conceded to the Mosquiio Indians in Article III. of this
treaty.
§ 367.] MOSQUITO QUESTION SINCE 1860. 225
"Article II. The Republic of Nicaragua, as a mark of its sover-
eignty, is entitled to hoist the flag of the Republic throughout the
territorj' assigned to the Mosquito Indians.
"Article III. The Republic of Nicaragua is entitled to appoint a
commissioner for the protection of its sovereign rights throughout
the territory assigned to the Mosquito Indians.
"Article IV. The Mosquito Indians are also to be allowed to hoist
their flag henceforward, but they must at the same time attach to it
some emblem of the sovereigntj^ of the Republic of Nicaragua.
"Article V. The Republic of Nicaragua is not entitled to grant
concessions for the acquisition of natural products in the territory
assigned to the Mosquito Indians. That right belongs to the Mosquito
Government.
"Article VI. The Republic of Nicaragua is not entitled to regu-
late the trade of the Mosquito Indians, or to levy duties on goods
imported into or exported from the territory reserved to the Mosquito
Indians. That right belongs to the Mosquito Indians.
"Article VII. The Republic of Nicaragua is bound to pay over to
the Mosquito Indians the arrears of the yearly sums assured to them
by Article V. of the Treaty of Managua, which arrears now amount to
30,859 dol. 3 c. For this purpose the sum of 30,859 dol. 3 c, deposited
in the Bank of England, together with the interest accruing thereto
in the meantime, is to be handed over to the British Government.
The Republic of Nicaragua is not bound to pay back-interest (' Ver-
ziigszinsen') on the sums in arrear.
"Article VIII. The Republic of Nicaragua is not entitled to impose
either import or export duties on goods which are either imported into
or exported from the territory of the free port of San Juan del Norte
(Grey town).
"The Republic of Nicaragua is, however, entitled to impose import
duties on goods on their conveyance from the territory of the free
port of Greytown to the territory of the Republic, and export duties
on their conveyance from the territory of the Republic to the free port
of San Juan del Norte (Greytown)."
Moore, Int. Arbitrations. V. 4954.
See Mr. Evarts, Sec. of State, to Mr. Kasson, min. to Anst. -Hungary. Aug.
1, Dec. 18, and Dec. 26, 1879, and June 4, 1880, MS. Inst. Austria, III.
55, 73, 78, 105.
The award of the Emperor of Austria was based on a legal opinion which
accompanies it. The opinion refers tt > the ancient dispute as to the right-
ful sovereignty of the territory inhabited by the Mosquito Indians. This
sover.ngnty , says the opinion, was claimed both by Spain and afterwards
by the colonies which became independent of her. On the other hand,
the Mosqu.ito Indians were able to maintain their actual freedom as a
separate community, and as such formed relations with England which
reached back to the second half of the seventeenth century, led in 1720
to the treaty between the governor of Jamaica and the chieftain, styled
H. Doc. 551— vol 3 15
226 INTEROCEANIC COMMUNICATIONS. [5J HG7.
'• king." of the Mosquito Indians, and finally took the shape of a British
protectorate, which was, however, (contested both by the republics of
Central America and by the United States. TIk^ threatened international
complications, growing ont of the seizure of Greytowii by the Indians
with the aid of England in 1848, led to the conclusion of the Clayton-
Bnlwer treaty, whic^h became the starting i)oint for fresh disputes.
In consequence of the failure of the Webster-Crampt^n arrangement of
1852 (because of the objections of Nicaragua) and of the Dallas-Clarendon
convention of 1856, Great Britain adopted the course of direct negotia-
tions with Nicaragua, which resialted in the conclusion of the treaty of
Managua of January 38, 1860. By this treaty, says the opinion, the
British protectorate over the Mostpiito district was expressly given up;
the sovereignty of Nicaragiia was acknowledged under specified condi-
tions and engagements; and a definite territory was reserved to the
Indians within which they were to enjoy the right of self-government.
This territory, the opinion declares, although it forms an integral and
inseparable component of the aggregate territory of Nicaragua, is to be
considered as primarily and immediately owned by the Indians as their
own country, which they are indirectly prohibited from ceding to a
foreign power or person. Within this territory the Mosquito Indians
are. by the treaty of Managua, to enjoy the right of governing accord-
ing to their own customs and regulations. This concession of self-
government comprehends, so the opinion affirms, the ideas of self-
legislation and self -administration, as long as the Indians shall not,
according to Article IV. of the treaty of Managua, agree to " absolute
incorporation" into the republic and subject themselves to its general
laws and regulations; it cannot extend to foreign affairs, since the
Mosquito reserve forms a political and international whole with the
Republic of Nicaragiia. The connection of Nicaragua with the reserve
may indeed, says the opinion, be shortly described in the i)hrase "' The
republic rules, but does not govern." Nicaragua, however, is entitled
to hoist her flag as a sign of dominion; nor did Great Britain oppose this
claim, thoiigh it formed the subject of a complaint in the memorial sub-
mitted by the Mosquito chief to the arbitrator. Nicaragua also had
the right to appoint a commissioner ti see that the Mosquito govern-
ment did not act beyond its powers; but this commissioner must not
meddle with the internal affairs of the Indians or exendse any jurisdic-
tion in their district. On the other hand, the Indians could not be for-
bidden to use their old flag, but they must place in it a sign of the
sovereignty of Nicaragua. As to the particular matters to which the
right of self-government extended, the opinion declared that the Mos-
quito government must possess the right of granting licenses for the
acquisition of the natural prodxicts of its territory, and of levying duties
on such produc;ts; and the right of carrying on trade according to its
own regulations, including the levying of duties on goods imported into
and exported from the district. These rights belonged t;) the Mos(iuito
Indians exclusively. "With regard to Nicaragua's claim that Great
Britain had no right to interfere in affairs relating to the Mostiuito
Indians and to the free port of Greytown, or to come forward as a
complainant in the pending case, since such a proceeding would involve
a reassertion of her relinquished protectorate, the opinion pronounced
the contention not to be well founded. England, .said the opinion, had
the right to insist that the provisions of the treaty of Managua, consti-
tuting Greytown a free port, should not be merely nominal, and, if
§ 367.] MOSQUITO QUESTION SINCE 1860. 227
her subjects residing in Greytown or trading thither asked her interpo-
sition against measures of Nicaragua prejudicial to the character of
Greytown as a free port, there was nothing contrary to the rules of
international law or to ordinary practice in her intervening. As to
the affairs of the Mosquito Indians, it was true, said the opinion,
that England had in the treaty of Managua acknowledged the sover-
eignty of Nicaragua and renounced her protectorate, but only on the
condition, set forth in the treaty, of certain political and pecuniary
advantages to the Indians, and she had the right to insist upon the ful-
filment of those promises as well as of all other claiTses of the treaty.
Nicaragua was wrong in calling this an inadmissable "intervention."'
since pressure for the fulfilment of treaty engagements was not to be
classed as an intermeddling with internal affairs, nor as an exercise of
the relinquished protectorate. In conchision, the opinion advised that
the arbitrator should decline to comply with the request of Nicaragua
that he should declare that the treaty of Managua was, as having i.c-
complished its pxirpose, anniTlled in respect of the Mosquito territory,
since he was empowered only to intei*pret the treaty and not to super-
sede it.
The full text of the opinion may be seen in Moore, International Arbitra-
tions, V. 4955-4966.
The foregoing award and opinion have become obsolete as the result of
the voluntary and formal incorporation of the Mosquito Indians into
the Republic of Nicaragua. (For. Rel. 1894, Appendix I. 854-363;
infra, pp. 250-253.)
" On the fifteenth ultimo Dr. Iloracio Guzman, the minister of
Nicaragua at this capital, in pursuance of instructions
Mr. Bayard's m- received from his Government, left at this Department
„^ , „ „„' a copy of a note addressed by Mr. J. P. II. Gastrell,
Phelps, Nov. 23, , f-^. . . . "^ . . '
1838 the British minister in Central America, to the min-
ister of foreign affairs of the Republic of Nicaragua,
a copy of which I inclose herewith.
"In this note Mr. Gastrell complains that the Government of Nica-
ragua 'has established a post-office at Bluefields, thus intervening
in tlie domestic affairs of the reservation;' that 'troops and a police
force have been stationed, and forts, arsenals, and military posts
have been established, or are about to be established, by Nicaragua'
within the Mosquito Reservation, and that the Nicaraguan commis-
sioner residing in the reservation sustains these acts. He states tliat,
in the opinion of Her Majesty's Government, the erection of forts,
arsenals, or military posts, the establishment of post-offices by Nica-
ragua, or tlie exercise of military or police authority witliiu the terri-
tory of the reservation can not be reconciled with the spirit of the
treaty of Managua of l.SGO, as interpreted by the award of the Emperor
of Austria. And he refers to certain questions touching the precise
boundary of the reservation, as to which some dispute still exists.
"Touching the inquiry in regard to the demarkation of the bound-
aries of the reservation, I have no observations to offer. The matter
is one in whicli the Government of the United States feels at least an
228 INTEROCEANIC COMMUNICATIONS. [§ 367.
equal interest with that of (Treat IJritain, inasnuicli as a number of
our citizens are now engaged in business witliiu the reservation and
by far the larger part of the foreign commerce of that region is at
present carried on l)etween the ports of Hluefields and New Orleans.
"But with respect to the other subjects mentioned by Mr. Gastrell
the case is different. . . .
"The Mosquito coast was a name bestowed in the last century upon
a tract of country of considei'able but imperfectly defined extent,
stretching along tlie shores of the Caribbean Sea to the southward
and westward of Caj)e (xracias a Dios, and was inhabited by a sparse
population of wholly uncivilized Indians, between whom and the
inliabitants of the British colony of Jamaica some relations are said
to have early existed. ... It is enough for my present purpose
to point out that this Government has at all times maintained that
the title to the whole of the Mosquito coast was, in the last century,
vested in the Crown of Spain ; that the native inhabitants were never
more than a mere savage tribe, having at best only possessory rights
in the region they occupied; that the sovereignty of Spain was
distinctly re(^ognized by Great Britain in the treaties concluded with
the Spanish Government in 1783 and 1786; and that the rights of
Spain became vested inher revolting colonies when they secured their
independence.
"These views were not accepted by the British Government, which
insisted upon regarding the Mosquito Indians as an independent
nation, entitled to full recognition as such. The chief of the tribe
was described in the British correspondence as the 3Iosquito King,
and Great Britain was designated as liis protecting ally. Acting upon
tliis view of the case, two British frigates, on January 1, 1848, took
forcible possession of the town of San Juan del Norte — subsequently
known as Greytown — which had a jieculiar importance to the people
of the United States as being situated at the Atlantic mouth of the
projected Nicaragua ihteroceanic canal. For upward of twelve years
the protectorate of Great Britain thus established continued.
"These pretensions on the part of Great Britain excited marked
interest «,nd opposition in the United States, and together with other
circumstances, became the cause of the negotiation of the Clayton-
Bulwer treaty of April 19, 1850. . . .
"Into the irritating controversies to whicli this treaty gave rise I
do not desire to re-enter, l)ut it is enough to i)oint out that the con-
tinuance of the protectorate of Great Britain over the Mosquito ter-
ritory was regarded throughout by the United States as being in
conflict with tlie provisions of that agreement.
"The arrangements to be entered into upon the cessation of this Mos-
quito protectorate were, however, the cause of considerable embar-
rassment to the British Government, as was frankly pointed out in
two instructions addressed by Lord John Russell to Mr. Crampton,
§ 367.] MOSQUITO QUESTION SINCE 1860. 229
under date of January 19, 1853, from which I quote the followin.^
passages :
" It is evident that since Great Britain first assumed the protection and defence
of the Mosquito Indians the position of all parties lias changed.
''First. Spain, instead of exercising absolute sovereignty over Central America
and pi-ohibiting all commerce on the coasts under her sway, has entirely lost her
dominion over the continent from Caj^e Horn to Florida.
''Second. The Mosqiiito Indians, instead of governing their own tribe according
to their own customs, furnish a name and a title to Eiiropeaiis and Americans,
who carry on trade at Greytown and along the coast of Moscpiito according to the
usages of civilized nations.
"Third. Great Britain, instead of having an interest in the defense of the Mos-
quito Indians for the sake of rescuing part of the territory of Central America
from Spanish control, and obtaining an outlet for her commerce, has no other
interest in Mos(iuito than that which is derived from an honorable regard for her
old connection with the Indian nation of Mos(iuito.
" Her Majesty's Government has for several years endeavored to suit its engage-
ments to the altered circumstances of the case.
" The committee of government of Greytown are,i7i fact, the real power which
exercises authority in that part of Central America. . . . What is apparent is,
that the King of Mosquito exercises sovereignty over Greytown; what is real is,
that he has no authority whatever, but that a committee of Eixropeans and Amer-
icans carry on the government at that i)ort.
' ■ It is the object of Her Majesty's Government to make Mosquito a reality in.stead
of a fiction, which it has hitherto been; and provided we save our honor and credit
in oiar treatment of the King of that country, whose title and power are, in trath,
little more than nominal, it is a matter of comparative indifference to its how this
object is carried out, whether by constituting Greytown as the head and pivot of
the new territoi'ial establishment which we desire to see formed, or by any other
libefal and practical arrang int>nt whicih may be thought preferal)le, on discussing
tlie matter with the United States. . . . Neither would it consist with our notions
of expediency that such States as Nicaragua, Honduras, or even Costa Rica,
should obtain possession of the Moscpiito territory,
"The plans of settlement thus suggested l)y Loi-d John llnssell
were not appi-oved by the United States, and prolongcnl but fruitless
negotiations were undertaken in the hopc^ of arriving at an arrange-
ment with respect not only to the Mosquito coast, but also to the
British claims over certain islands olf the coast of Honduras. Ulti-
mately the Government of (ii-eat IJritain sent Sir William Gore
Ouseley as its representative to Central America, with the purpose of
concluding separate agreement with the several countries interested.
This mission was carried on and bi'ought to a successful conclusion
by Mr. Wyke.
"It is interesting to observe that the plan a(loi)ted in regard to the
mode of dealing witli the Mosquito Indians seems to luive been first
suggested by General Cass in a conversation with Lord Napier, which
is related as follows by the latter in a dispatch to Lord Clarendon of
March 12, 1857:
"General Cass then passed some reflections on the Clayton-Bulwer treaty: he had
voted for it, and in doing so he believed that it abrogated all intervention on the
230 INTEROCEANIC COMMUNICATIONS. [§ 367.
part of England in the Central American territory. The British Government had
I)nt a different constniction on the treaty, and he regretted the vote he liad given
in its favor. He did not, however, pretend that the British Government shonld
now unconditionally abandon the Mosquitos, with whom they had relations of an
ancient date; it was just and consistent with the practice of the United States
that those Indians shonld be secured in the separate possession of lands, the sale
of which should l)e prohibited, and in the enjoyment of rights and franchises,
though in a condition of dependency and protection. The British Government had
already removed one impediment to the execution of the Bulwer-Clayton treaty by
the cession of their claims on Ruatan. Two difficulties now remained — the frontier
of Belize and the delimitation and settlement of the Mosquito tribe. If the fron-
tier could be defined, and if the Mosquitos could be placed in the enjoyment of
their territory by treaty between Great Britain and Nicaragua, in which the con-
cessions and guaranties of the latter in favor of the Indians should be assoc^iated
with the recognition of the sovereignty of Nicaragua — so I understood the gen-
eral— then the Bulwer-Clayton treaty might be a permanent and satisfactory set-
tlement between the contracting parties. The United States desired nothing else
than an absolute and entire neutrality and independence of the Central American
region, free from the exercise of any exclusive influence or ascendancy whatever.
"On January 28, 1860, a convention, sometimes known as the Zele-
don-Wyke treaty, was signed at Managua by the representatives of
Great Britain and Nicaragua. By the terms of this treaty Her Bri-
tannic Majesty, subject to the conditions and engagements specified
therein, agreed to recognize as belonging to and under the sovereignty
of the Republic of Nicaragua, the country tlieretofore occupied or
claimed by the Mosquito Indians within the frontier of that Repub-
lic. The British protectorate was to cease three montlis after the
exchange of ratifications, in order to enable Her Majesty's Govern-
ment to give the necessary instructions for carrying out the stipula-
tions of the treaty, A district, now commonly known as the Mosquito
Reservation, was to be assigned to the Indians, witliin which they
were to enjoy certain rights of local autonomy. The Republic of Nica-
ragua was to pay to the Indians $5,000 a yeat for ten j'ears. The port
of Greytown, which was not included in the Mosquito Reservation,
was to be constituted a free port. And certain grants of land, if
made bona fide, in the name and by the authority of the Mosquito
Indians, since January 1, 1848, lying outside tlie reservation, were to
be confirmed.
"Articles II., III., and VI. of this treaty may be quoted in full as
follows :
"Art. 2. A district within the territory of the Republic of Nicaragua shall be
assigned to the Mosquito Indians; which district shall remain, as above stipulated,
under the sovereignty of the Republic of Nicaragua. Such district shall be com-
prised in a line which shall begin at the moiath of the River Rama, in the
Caribbean Sea; thence it shall run up the mid-course of that river to its source,
and from such source proceed in a line due west to the meridian of 84^ 15' longi-
tude west from Greenwich; thence due north up the said meridian until it strikes
the River Hueso, and down the mid-course of that river to its mouth in the sea,
as laid down in Baily's map, at about latitude from 14' to 15 north and longitude
§ 367.] MOSQUITO QUESTION SINCE 1860. 231
83° west from the meridian of Greenwich; and thence southerly along the shore
of the Caribbean Sea to the month of the River Rama, the point of commence-
ment. But the district thus assigned to the Mosquito Indians may not be ceded
by them to any foreign person or state, but shall be and remain under the sover-
eignty of the Republic of Nicaragua.
"Art. 8. The Mosquito Indians, wathin the district designated in the preceding
article, shall enjoy the right of governing, according to their own customs and
according to any regulations which may from time to time be adopted by them , not
inconsistent with the sovereign rights of the Republic of Nicaragua, themselves
and all persons residing within such district. Subject to the above-mentioned
reserve, the Republic of Nicaragua agrees to respect and not to interfere with such
customs and regulations so ( stablished or to be established within the said district.
"Art. 6. Her Britannic Majesty engages to use her good offices with the chief
of the Mosquito Indians, so that he shall accept the stipulations which are con-
tained in this convention.
"The conclusion of this arrangement was officially communicated
to the Government of the United States, which, regarding it as a
final withdrawal of British influence from the Mosquito countrj%
expressed its satisfaction at a settlement that appeared to put an end
to the disputes to which the Claj'^ton-Bulwer treat}^ had given rise.
*'The treaty of Managua was at least as favorable to Great ]?ritain
as that Government had any right to expect. As pointed out by Mr.
Fisli in his instructions to General Schenck of April 26, 1873, this
instrument 'assigned boundaries to the Mosquito Reservation prob-
ably bej^ond tlie limits which any member of that tribe had ever seen,
even wlien in cliase of wild animals. Worst of all, however, it con-
firmed the grants of land previously made in the Mosquito territorJ^
The similar stipulation on this subject in the Dallas-Clarendon treaty
was, perhaps, the most objectionable of any, as ic violated the cardi-
nal rule of all European colonists in America, including Great Britain
herself, that tlie aborigines had no title to the soil which they could
confer upon individuals.'
"The Government of the United States had not, however, antici-
pated that under cover of this treaty the Government of Great Britain
would continue to attempt any interference with the affairs of the
Mosquito Indians. It is superfluous to say that if it had been sup-
posed by the United States that the treaty of Managua was under-
stood by the Government of Great J^ritain to give that country aright
of influence, direction, or control over the destinies of the Mosquito
territory as against the State of Nicaragua, tlmt convention, far from
being hailed by this Government as a solution and termination of
disputes concerning the British protectorate over the#Iosquito Indians,
would have been regarded as a serious obstacle to any such settle-
ment. Under Article VI. of the treafy of Managua, Her Britannic
Majesty was bound to u.se her good offices with the chief of the
Mos([uito Indians, so that he should accept the stipulations of that
convention; and it might have been naturally assumed that upon such
232 INTEROCEANIC COMMUNICATIONS. [§ 367.
acceptance by the Mosquito chief, Her Majesty's right to furtlier
interference was at an end.
<* That this Government was justified in so assuming, may amply
be demonstrated notonly by the consideration of tlie expressed design
of the convention, but also by its particular provisions. Among these
may be designated as of unequivocal significance, the fourth article
of the treatj% by which it is provided that nothing in the treaty shall
be construed to prevent the Mosquito Indians at any future time
from agreeing to absolute incorporation into the Republic of Nica-
ragua on the same footing as other citizens of the Republic, and from
subjecting themselves to be governed T),y the general laws and regula-
ti(ms of the Republic, instead of by their customs and regulations,
l^his provision merely emphasizes the fact of the actual, substan-
tial incorporation of the Mosquito Indians into the Republic of
Nicaragua, and clearly contemplates the ultimate and absolute extin-
guishment of their semi-segregated existence.
"It appears, however, that differences subsequently aro.se between
the Governments of Great Britain and Nicaragua in relation to the free
port of Greytown, the payment of the annuitj' to the Mosquito Indi-
ans, and the precise extent of the rights of Nicaragua within the Indian
reservation. By an exchange of diplomatic notes between the repre-
sentatives of Great Britain and Nicaragua, it was agreed that all of these
questions should be submitted to the arbitration of the Emperor of
Austria; and he in the month of April, 1879, consented to act as arbi-
trator upon the differences of opinion which had arisen 'as to the
true interjjretation of the treat}' of Managua of 18G0.'
"To this agreement of arbitration the Government of the United
States was not a party, and it is not bound bj^ the award of the arbi-
trator, nor committed in any waj' to an admission of the right of Great
Britain to interfere in disputes between the Republic of Nicaragua
and the Indians living within her borders.
"The decision of the Emperor was announced in July, 1881, and
the first six articles of the awafd, which deals with the rights of Nica-
ragua within the Mosquito Reservation, are as follows: [For the first
six articles of tlie award, here quoted, see supra, p. 224.]
"This award, as it will be perceived, does not by any means go to
the lengths to which the British Government now seeks to proceed,
under the recent note of Mr. Gastrell to the Nicaraguan authorities.
The award declares that the Republic of Nicaragua may hoist its flag
throughout the ^servation, and may appoint a commissioner for the
protection of its sovereign rights; but that it may not grant conces-
sions for the acquisition of natui-al products within the territory', may
not regulate the trade of the Indians, and may not levy import or export
dues in the reservation. Beyond this no limitation is declared upon
the sovereign rights of Nicaragua, nor is the extent of its sovereignty
further defined.
§ 367.] MOSQUITO QUESTION SINCE 1860. 233
"Without entering now into the consideration of the correctness of
this award, it may be pointed out that neither in it, nor in Article
III. of the treaty of Managua, which provided that tlie Indians were
to enjoy the right of governing, according to their own customs, and
according to any regulations which may from time to time be adopted
by them not inconsistent witli tlie sovereign riglits of tlie Republic of
Nicaragua, tliemselves and all persons residing within such district,
is there anytliing incompatible with the right of Nicaragua to estab-
lish post-offices, and stilljnore with the riglit to establish military
posts for the common defense. Such a right is an essential incident
of paramount sovereignty, and can properly be exercised by no other
agency. The award refers to the right of the Republic of Nicaragua
as a nuirk of its sovereignty to hoist the flag of the Republic through-
out the territory assigned to the Mosquito Indians. That such is the
case does not appear to admit of doubt. Yet it seems idle to speak of
a government having the right to hoist a flag as the emblem of a
sovereignty which it is not to be permitted to defend.
" The analogy of the relations of the Federal Government of the
United States to the several States and to tlie Indian tribes within its
bordei's seems clear and applicable. To establish post-offices, to raise
and support armies, to provide and maintain a navy, to exercise exclu-
sive legislation over all places x>urchased for the erection of forts,
magazines, arsenals, and dock-yards, and to provide for the common
defense and general welfare of tlie United >States, are powei-s expressly
vested by our Constitution in the Federal Congress; and it is obvious
that wherever there is a central government these powers, or some-
thing like these, must be vested in it, whatever degree of autonomy in
other respects may be accorded to local administrations.
"It is, of course, well known that in some cases dependent autono-
mous communities have the privilege of exercising some of the rights
above mentioned ; but this is due usually either to the circumstance
of great distance from the centi-al authority, as in the case of the
Britisli colonies in Australia, or to special and precise stipulations.
In a case where the inhabitants of a disti-ict ai'e simply to enjoy a
right of local self-government, 'but shall be and i-emain under the
sovereignty of the power within whose borders their district lies,
there can be no room for implication gi'anting to such inhabitants
extraordinary privileges which do not properly pertain to the I'cgula-
tion of strictly local affairs.
"To the United States, in common witli all other powers, it is
important that Nicai'aguan sovereignty should exist in fact as well as
in name within the Mosquito reservation. With the sovereign alone
can we maintain diplomatic relations, and we have a right to look to
that sovereign for redress in the event of wrongs being inflicted ujx)n
any of our citizens. If the Republic of Nicaragua is to be limited to
the mere formal right of hoisting a flag and maintaining a conimis-
234 * INTEROCEANIC COMMUNICATIONS. [§ 367.
sioner within the reservation, how can it bo called upon to perform
any of its international obligations?
*'Nor is it consistent with the general views and policy of the United
States to look with favor upon the establishment of such an imperium
in imperio in Central America. General Cass, in a note addressed to
Lord Napier on May 29, 1857, in discussing tlie draught of a proposed
treaty relative to the Bay Islands off the coast of Honduras, alluded
in the following language to certain clauses which, by their express
terms, were remarkably similar to the interpretation now sought to be
put by the British (Tovernmcnt on the treaty of Managua. He wrote:
" That provision, whilst declaring the Bay Islands to be ' a free territory under
the sovereignty of the Republic of Honduras,' deprived that country of rights
without which its sovereignty over them could scarcely be said to exist. It sep-
arated them from the remainder of Honduras and gave them a government of
their own, with their own legislative, executive, and judicial officers, elected by
themselves. It deprived the Oovernment of Honduras of the tcuving jmiver in
every form, and exempted the people of the Bay Islands from tJte performance of
military duty, except for their own defense, and it p)rohibited the Republic from
providing for the protection of these islands by the construction of any fortifica-
tions whatsoever, leaving them open to invasion from any quarter. Had Hon-
duras ratified this treaty, she would have ratified the establishment of an ' inde-
pendent ' state within her own limits, and a state at all times liable to foreign
influence and control.
"And these objections Mr. Cass thought were so serious as to
make it impossible for the President to sanction such an arrangement.
"But even more important than a determination of the precise
extent of the Nicaraguan authoritj' within the Mosquito reservation
is the general question of the right of Her Britannic Majesty to inter-
vene in disputes between the Republic of Nicaragua and the Indians
or other inhabitants of that district.
" The question was presented by the Nicaraguan representatives to
the Emperor of Austria, but his award is silent upon the point. It
is, however, discussed in the opinion or report upon which the award
is based, and in the following terms:
" In regard, however, to the affairs of the Mosquito Indians, it is true that Eng-
land, in the treaty of Managua, has acknowledged the sovereignty of Nicaragua
and renoiinced the protectorate, but this still only on condition, set forth in the
treaty,' of certain political and pecuniary advantages for the Mosquitos (' subject
to the conditions and engagements specified in the treaty, Article I '). England
has an interest of its own in the fulfillment of these conditions stipulated in
favor of those who were formerly under its protection, and therefore also a right
of its own to insist upon the fulfillment of those promises as well as of all
other clauses of the treaty. The Government of Nicaragua is wrong in calling
this an inadmissable 'intervention,' inasmuch as pressing for the fulfillment of
engagements undertaken by treaty on the part of a foreign state is not to be
classified as intermeddling with the internal affairs of that state, which intermed-
dling has unquestionably Iseen prohibited under penalty. No less unjustly does
the Government of Nicaragua seek to qualify this insistence on treaty claims as
§ 367.] MOSQUITO QUESTION SINCE 1860. 235
a continued exercise of the relinquished iirotectorate, and on that ground wish to
declare England's interposition inadmissable.
"From this view of the case I find myself compelled to dissent. It
can not be admitted that Great Britain has a right to intervene in
every dispute tliat may arise between tlie Mosquito Indians and their
sovereign. And if Great 15i-itain can not intervene in eveiy case, liow
are the cases of admissible intervention to be defined? Certainly the
vague language of the treaty of Managua can afford no criterion^ for
in every case of dispute it may be argued tliat the rights of self-
government on tlie one hand, or of sovereignty on tlie other, are
invaded.
"The case is not without analogies. In the treaty with France of
April 30, 180;], for tlie cession of Louisiana it is provided that 'the
inhabitants of the ceded territory shall be incorporated in the Union
of the United States, and admitted as soon as possible, accor-ding to
the principles of the Federal Constitution, to the enjoyment of all the
rights, advantages, and immunities of citizens of the United States;
and in the mean time they shall be maintained and protected in the
free enjoyment of their lil)erty, property, and the religion the}' pro-
fess.' In the treaty with Spain of February 22, 1819, for the cession
of Florida, it was stipulated that 'the inhabitants of the ceded terri-
tories shall be secured in the free exercise of their i-eligion, without
any restriction,' aud that they should be 'admitted to the enjoyment
of all the privileges, riglits, and immunities of the citizens of the
United States.' liy the terms of the treaty with Russia of March 30,
18G7, for the cession of Alaska, the inhabitants, with the exception of
uncivilized native trilies, are to b(i admitted to citizenship, 'and shall
be maintained and protect<3d in the free enjoyment of their liberty,
projierty, and religion. The uncivilized tribes will be subject to sucli
laws and regulations as the l^nitcxl States may from time to time
adopt in regard to aboriginal ti'ibes of that countr}'.' In all these
cases, as will be observed, the ceding Government has received
assurances of the treatment to be accorded to the inhabitants of the
ceded territory; but in no case in our diplomatic history has anyone
of tliese (Tovernmcnts asserted a right to intervene in our dom<^stic
affairs. Dilticulties have at times arisen between the Federal (Tovern-
inent and the inhabitants o^ Louisiana and Florida, but neithei-
France nor Spain ever pn^tended that our treaty stipulations gav(^
them a I'ight to take part in the settlement of such disputes. The
laws affecting tlie Territory of Alaska may be, and in some res[)ects
now are, unlike those governing the other Territories of the United
States. Hut it must b«^ apparent that were the Indians inhabiting
those possessions to pi-otest against alleged discriminations to the
Czar of liussia, the treaty of 18G7 would not authorize His Impei'ial
Majesty to demand of the United States a different treatment of our
236 INTEROCEANIC COMMUNICATIONS. [§367.
Indian wards; and that such interposition, if made, would certainly
not bo roji;ardod favorably by this Government.
"The cedinjj^ government in sucli cases retains, and can retain, no
right of control or supervision over th(? conduct of the guardian to
whom it commits the inhabitants wliose allegiance is changed.
"And so in the case under consideration. The stipulations of the
treaty of Managua j"elative to the privileges to be accorded to the
Mosquito Indians were not for the benefit of (xj-eat Britain, and are
not enforceable b}' her. They were solely made for the benefit of
those Indians, who were regarded by the express language of the
treaty as at liberty to accept or reject its stipulations. Through
their chief they did deliberatel}^ accept them, and on the withdrawal
of British protection placed themselves under the sovereign power of
the Republic of Nicaragua, and agreed to accept her public pledges
as a sufficient guaranty that the agreements therein contained touch-
ing their right of self-government would be carried out in good faith.
"The President can not but regard the continued exercise of the
claim on the part of Great Britain to interfere on behalf of these
Indians as the assertion of a British protectorate in another form;
more especially when this effort is directed to prohibiting Nicaragua
from exercising military jurisdiction in the immediate neighborhood
of the Atlantic mouth of the projected canal.
"The United States can never see with indifference the re-estab-
lishment of such a protectorate. Not only would the extension of
European influence upon this continent be contrary to the traditional
and frequently expressed policy of the United States, but the course
of Great Britain in assuming or exercising any dominion over the
Mosquito coast, or making use of any protection it may afford. or any
alliance it may have to or with any people for the purpose of assum-
ing or exercising any dominion over that territory, would be in viola-
v.ion of the exi^ress stipulations of the ('ia.yton-Bulwer treaty, whose
binding force Great Britain has up to the present time so emphatic-
ally as.se rted.
" It is not needful in this communication to consider the temporary
or perpetual existence of the various jirovisions of that treaty. My
immediate predecessors have with great fullness expressed their views
upon that head, and I do not now comment upon them. But it is
proi^er to refer to these conventional engagements of (ireat Britain,
as exhibiting the measure of her admitted obligations.
"Whether the interference of the British Government be regarded
as a breach of existing treaty engagements, or whether it be looked
ui)on simpl}^ as an effort, not prohibited by express agreement, to
extend her influence in this continent — in either case the Government
of the United States can not look upon such acts without concern.
The circumstances of the particular locality render the subject one
of peculiai" interest and importance to the people of this country, and
§ 367.] MOSQUITO QUESTION SINCE 1860. 237
I should be wanting in my duty to them sliould I fail to bring the
matter directly and frankly, and in a spirit of sincere friendship, to
the notice of Her Majesty's Government.
"The history of the former controversies in regard to the same
subject should admonish those who are cliarged with the conduct of
the affairs of the two countries to spaie no effort to avoid nnsunder-
standings and promote cordial co operation and good intelligence
between them. With this purpose in view, and animated by the
strongest desire to escape i)ossible future causes of difference, I
address you these instructions..
"You will read this dispatch to the Marquis of Salisbury, and,
should he desire it, you may furnish him with a copy."
Mr. Bayard, Sec. of State, to Mr. Phelps, min. to England, Nov. 2:5, 1888,
For. Rel. 1888, I. 759-767.
To the foregoing representations of Mr. Bayard, Lord Salisbury
replied in tlie following March. In this reply his
Lord Salisbury's i^i-f^sliip, after referring to the positions taken by Mr.
reply, March 7, „ , . ,
jggg Bayard, said:
"I may remark that the award of the Kmperor was
given more than seven years ago, and no objection has, till now, been
made to it l)y the United States Government.
"If the object contemplated by Iler Majesty's Government had
been an unconditional withdrawal of the protectorate of Great ]>rit-
ain, no convention would have been recpiired oi- made; but Nicaragua
entered into a distinct treaty arrangement with this country to secure
certain rights and privileges to the Mosquito Indians as soon as the
British protectorate should be withdi-awn; and in the event, which
has arisen, of the Mosc^uilo Indians complaining that tlieir i-ights are
infringed by Nicaragua, by whom is remonstrance to be made to
Nicaragua unless by Great l^ritain, with whom she has concluded the
convention in question?
"Mr. l^ayard quotes as analogous to the present issue 1 lie treaty
between the United States and France, Spain, and Russia for the
cession, respectively, to the United States of Louisiana, Florida, and
Alaska, and he slates that although difficulties have at limes arisen
between the Federal Government and the inhabitants of Louisiana
and Florida, neither France nor Spain ever pretended that the treaty
stipulations gave them a riglit to take part in the settlement of such
disputes, and that were the Indians of Alaska to protest against
alleged discriminations between the laws governing that Territoiy
and the other Territories of the United States, tlie P^mperorof Russia
would not be authorized by tlie treaty of 1<S(J7 to denumd a different
treatment of those Indians. Mr. liayard does not, however, saj'
whether such intervention was, as in the present case, invoked by
the inliabitants concerned, or whctlicr the differences to which he
refers were of a kind i)rovided for in the treaties which he mentions.
238 INTEROCEANIC COMMUNICATIONS. [§ 367.
" Certain advaiitaj^os were by the convention of ISOO secured to the
Indians of tlie M()s<iuito Reserve, and Her Majesty's Government felt
themselves in duty hound to brinj; to the notice of tlie Ni<'araj^uan
Government the cases specified in Mi-. Gastrell's note. Mr. Bayard
is, however, under a misapprehension as to the extent of the inter-
vention exercised by Her Majesty's Government. They do not claim
'to intervene in every dispute between the Mosquito Indians and
tlieir sovereign,' but only within tlie limits of the report annexed to
the Emperor of Austria's award quoto<l by Mr. Bayard.
"They have no desire to 'a.ssert a protectorate' in substance or in
form, or anytliing in the nature of a protectorate, and it would give
them the greatest possible satisfaction if the Nicaraguan Government
and the Indians woukl come to an amicable arrangement; under Article
IV. of the convention, and thus relieve this country from any further
responsibility in regard to their affairs.
" I have to request that you Avill read this dispatch to the Secretary
of State, and leave a copy of it with him, and you may inform him
that I have recently received from the Nicaraguan minister at this
court, a note giving explanations in reply to the representations made
in Mr. Gastrell's note of the 10th September last."
The Marquis of Salisbury to Mr. Edwardes, British charge, March 7, 1889,
For. Rel. 1889, 468, 469.
In May, 1892, the Government of the United
Mr. Foster's represen- ,^,, , ,, jij.i.i.i.-vT-
^v o ,o«o States addressed to that of Nicaragua a communica-
tations, Feb. 8, 1893. ^
tion concerning a reported increase in port charges
at Bluefields, in the Mosquito Reservation, on steamers plying between
New Orleans and that place. The Nicaraguan Government answered
that it was unable to make a, responsible reply, owing to the anomalous
state of things existing in the Reservation, but intimated that it would
address the British Government, to the end that Nicaraguan sover-
eignty there, under the treaty of Managua, might be invested with a
practical meaning. Sept. 13, 18!)2, Seiior Bravo, the Nicaraguan min-
ister of foreign affairs, accordingly addressed a note on the subject to
Mr. Gosling, British minister at Managua. To this note Mr. Gosling,
on Oct. 14, 1892, replied, announcing that he liad referred it to Lord
Rosebery, ])ut at the same time making certain observations of his
own. When this correspondence was brought by the Nicaiaguan
Government to the attention of the United States, Mr. Foster, who
was then Secretary of State, addressed to jNIr. Lincoln, AnuM-ican min-
ister in London, an instruction, in which some of Mr. Gosling's state-
ments were e.xamined and the question at issue discussed. On the
general subject of the Moscpiito Indians, Mr. Foster referred to Mr.
Bayard's instruction to Mr. l*lielps, of Nov. 23, 1888, a presentation
which, said Mr. Foster, remained practicall}' unanswered, since Lord
Salisbury's acknowledgment amounted to little more than an excep-
§ 367.] MOSQUITO QUESTION SINCE 1860. 239
tion to certain details. After adverting to Mr. Bayard's argument
that the pretensions of Great Britain with regard to the Mosquito
country involved the assertion of an imperium in hnperio, Mr. Foster
said :
"Indeed, throughout the wliole discussion for many years past it
seems to have been overlooked on tlie part of Great Britain that the
concessions granted by Nicaragua are tribal, not territorial; and that
the specified riglits conferred are to be enjoyed by a i)articular com-
munity of indigenous Indians, thus inuring to them and not to the
territorj^ assigned for their residence. The residence of other persons
than Mosquito Indians within the defined limits of the reservation
imposes subjection to this tribal rule; it does not secure their exemp-
tion from Nicaraguan control. . . . Mr. Gosling asserts that ' the
right of self-government' conceded to the Mosquito Indians ]>y the
Article III. of the treaty of Managua would swrelj'^ 'cover the framing
by tliem of j)ort regulations whereby to insure the due maintenances
and safety of the harbor at Blue fields, the providing of lights and
beacons, and the defraying of expenses of the police of that i)ort,'
and adds: 'According to my view, the question to be considered is,
whether the levying of port dues referred to is inconsistent with the
sovereign rights of Nicaragua; whether or not the collection of the
said dues is not absolutely necessary for the safety of navigation, and
whether the supreme government has, in virtue of the treaty of Mana-
gua, the right to rei)udiate them.'
"To this concluding proposition, as well as to the i)refatory asser-
tion above quoted, I am constrained to take exception. . . . The port
of Bluefields, like any other port within the defined limits of the res-
ervation assigned for the dwelling of the Mosquito Indians, is for all
purposes of international commerce a port of the sovereign state of
Nicaragua. The flag of Nicaragua floats there as the recognized
symbol of supreme sovereignty. The foreign flag entering those ports
can recognize no divided sovereignty, nor know any such govern-
mental fiction as 'Mosquitia.'
" Should foreign rights be involved or foreign interests assailed in
those ports, the foreign sovereign can look alone to tlie Republic of
Nicaragua for redress. If there be question ' whetlier or not the col-
lection of port dues is not absolutely necessary for the safety of navi-
gation,' I hold that it is the prerogative of Nicaragua to determine
the point, and in the proper case to adjust and impose such dues. . . .
"I am not unmindful of the circumstance, whicli may perliaps be
alleged, that Article YI. of the arbitral decision of the Emperor of
Austria provided that 'the Republic of Nicarauga is not entitled to
regulate the trade of the Mosquito Indians, or to levy duties on goods
imported into or exported from tlie territory reserved to the Mosquito
Indians. That right belongs to the Mosquito Indians.' As Avas
declared by Mr. Bayard, in his dispatch of November 2'-\, 1S88, the
240 INTEROCEANIC COMMUNICATIONS. [§ 367.
Government of the United States was not a party to that agreement
of arbitration, and is not bound by the award of the arbitrator. But,
even admitting for the argument's sake that the award of the Emperor
of Austria recognizes the competence of the tribal Indian community
to levy import or export duties on goods, I submit that the scope of
that power is expressly defined and limited to the Mosquito Indians
alone, subject always to the ultimate sovereignty of Nicaragua,
and . . . that the apparent intendment of this dictum of the impe-
rial arbitrator was to permit of the collection by the Mosquito Indians
of a revenue to meet the needs of their permitted tribal administra-
tion, and does not cover the case of the exaction, In' aliens residing
within the limits of the reserv^ation, of local port charges for purposes
of local improvement which are normally within the sole control of
the territorial sovereign.
" For some fifty years past this matter of Great Britain's pretension
^to exercise a more or less direct intervention in the regulation of the
internal functions of the Republic of Nicaragua has from time to time
excited discussion. . . . Notwithstanding this seemingly final with-
drawal [by the treaty of Managua] of the British claims to interven-
tion in the affairs of Nicaragua, the extent to which they were subse-
quently revived and asserted is apparent from the necessity of recourse
to arbitration in 1879-81. The question of the right and scope of
Great Britain's claimed function of intervention in disputes between
the Republic of Nicaragua and the Indians or other inhabitants of the
Mosquito Reservation was brought before the arbitrator, and his f ornml
award is silent upon this point. Resting, however, on a passage of
the opinion or report uj^on which the award was based, and which
purports to recognize the competency of Great Britain to insist upon
the fulfillment of the stipulations of the treaty of Managua, Her
Majesty's Government has since stretched its claim so far as to inter-
vene to contest the exercise of so evidently sovereign a function as the
regulation of postal communication in the Indian reservation — as
though it were possible to suppose that the phantasmic fiction styled
'Mosquitia' were competent to enter into postal conventions with
sovereign powers and logically (or illogically, rather), with the territorial
sovereignty of Nicaragua itself. . . . The town of Blnefields is to
all intents and purposes a colony of aliens, for the most part Jamai-
cans, in whose municipal administration of affairs no concurrence of
the tribal chiefs of the reservation is apparent. Thus the right con-
ceded to the Mosquito Indians by the treaty of Managua of govei-niug,
according to their own customs, themselves and all persons residing
within the district reserved to them has been perverted into the erec-
tion of an alien settlement at Blnefields, self-administered, interna-
tionall}' irresponsible, as wholly withdrawn in fact from the indigenous
tribal regimen of the Mosquito Indians as it seeks to withdraw itself
from the sovereign control of Nicaragua, and prone to invoke British
§ 367.] MOSQUITO QUESTION SINCE 1860. 241
intervention in protection of its alien interests. It is scarcely neces-
sary here to discuss how far this foreign and local self-control com-
ports with the arbitral decision of the Emperor of Austria, which in
each and every one of its six essential articles defines in terms the
relations of the * Mosquito Indians,' and none others.
"The United States can not look with favor upon any attempt,
liowever indirect, on the part of Great Britain, to render illusory the
sovereignty of the Republic of Nicaragua over the Mosquito Indians
and the territory reserved for their dwelling. In the judgment of this
Government the provisions of the treaty of Managua, as construed by
the arbitral award of the Emperor of Austria, are explicit to obvi-
ate any misapprehension or doubt as to the respective rights of Nica-
ragua and the Mosquito Indians, or as to the right of the Mosquito
Indians themselves to impose their tribal customs and regimen upon
any otlier residents within the reservation, so far as may not be incom-
patible with the sovereignty of Nicaragua. Moreover, the attributes
and powers of sovereignty are so unquestionably established under
the law of nations as to leave no just ground for doubting or contest-
ing the ultimate rights of Nicaragua as territorial sovereign. Hence,
the Government of the United States must hold that to Nicaragua,
and to Nicaragua alone, it must look for settlement of any interna-
tional questions affecting any part of the territory of Nicaragua.
"You will communicate this dispatch to the Earl of Roseberj^ b}'
reading it to him, and should lie so desire, furnishing liim with a copy."
Mr. Foster, Sec. of State, to Mr. Lincohi, iiiin. to England, Feb. 8, 1893,
For. Rel. 1893, 313. This paper was communicated by Mr. Lincoln to
Lord Rosebery, March 1, 1893. (For. Rel. 1893, 321.)
See, also, Mr. Shannon, min. to Nicaragua, to Mr. Foster, Sec. of State,
Aug. 17, Sept. 28, and Nov. 9 (enclosing copy of Mr. Gosling's note of
Oct. 14 to Serior Bravo), 1892, For. Rel. 1893, 163, 170, 172, 173; and
Mr. Foster to Mr. Shannon, Feb. 10, 1893, id. 182.
As to the free port of Grey town, under the treaty of Managua, see Mr.
Day, Assist. Sec. of State, to Seiior Correa, Nov. 10, 1897, MS. Notes to
Nicaraguan Leg. II. 172.
In the Autumn of 1893 the Government of Nicaragua sent to the
Mosquito Reservation Seiior O. Lacayo, as a special
Insurrection of commissioner, with^ instructions to bring about, if
! , ' possible, by diplomatic methods, its complete incorpo-
quent events. r- 5 .? x ? j. i.
ration into the republic. He was accompanied in his
mission by a military official, Gen. R. Cabezas, who was stj^led
insx)ector-general of the coast. Seiior Lacayo arrived at Bluefields on
Nov. 2, 1893, and proceeded thereafter in various ways to assert his
authority. ** At the same time he entered into negotiations with the
Mosquito officials, with a view to induce them to abdicate their func-
tions. The political authority of the Reservation was then in the
"For. Rel. 1894, App. I. 362,
H. Doc. 551— vol 3 16
242 INTEROCEANIC COMMUNICATIONS. [§ 3G7.
hands of practically the same group of persons as had exercised It for
some yeai*s, the leaders being two natives of Jamaica, named CJuth-
bert and Thomas, both of whom claimed British nationality. The
Indians themselves knew little of the government as it existed." The
effort to induce the officials by negotiation to yield their authority did
not succeed, and Seiior Lacayo then asked his Government for troops
on the ground that the Mosquito chief, Robert Henry Clarence, and
his council, were disloyal.* In December 1893 an excitement arose at
Bluefields, owing to rumors of a threatened invasion of the Reserve
from Honduras, with which country Nicaragua was then at war; and
when Nicaraguan troops were sent to Bluefields, the Mosquito chief
protested against their presence, and a Mosquito official called on
SeiTor Lacayo and demanded their withdrawal or the surrender of
their arms. With this demand Seiior Lacayo declined to comply,
referring to the existence of war with Honduras and the right of
Nicaragua to defend the territory. Dec. 15, 1893, however, tlie troops
were sent forward to tlie Ilonduranean frontier. A company of
natives was then organized and armed for local defense, and a ques-
tion arose as to its control. Meanwhile citizens of the United States
residing in the Reservation petitioned for the presence of an American
man of war.''
On February 11-12, 1894, Nicaraguan forces occupied Bluefields,
took possession of the public buildings, raised the Nicaraguan flag
on the Mosquito flagstaff, proclaimed a state of siege (martial law),
and assumed control of the government. Coincidently, Senor Lacayo
issued a proclamation, in which he referred to the existence of war
with Honduras, and declared that the object of the presence of the
troops was to give the people and their property the protection of the
Nicaraguan flag and forces. ^^ A number of American citizens, engaged
in business at Bluefields, presented to Mr. Seat, the United States
consular agent, a petition, protesting against the state of siege, as well
as against the substitution of Nicaraguan for Mosquito rule, and
expressing apprehension that their rights and interests would not bo
protected.* Seiior Lacayo, to whom the petition was communicated
by Mr. Seat, promised to transmit it to his Government.-^" On the
19tli of February he issued an order requiring importations to be
made at Bluefields under the Nicaraguan laws and regulations. s' The
«For. Rel. 1894, App. I. 234-236. See, as to the work of the Moravian mission
among the Indians, id. 263, 286.
6 For. Rel. 1894, App. I. 288.
"For. Rel. 1894, App. I. 237.
'^For. Rel. 1894, App. I. 245-249, 261.
«For. Rel. 1894, App. I. 246. See, also, as to the attitude of the American resi-
dents, and the state of local feehng. id. 266, 273-275, 279-284, 289-290, 293, 295,
317, 324, 842, 344, 347, 350-351.
/For. Rel. 1894, App. I. 243, 247.
J/For. Rel. 1894, App. I. 245-246.
§ 367.] MOSQUITO QUESTION SINCE 1860. 243
Mosquito chief invoked ilie interposition of the British consul, Mr. Bing-
liam, who on February 27 demanded of Senor Lacayo the restoration
of the status quo under the treaty of Managua and the award of the
Emperor of Austria, at the same time referring to tlie presence of a
British man-of-war." The state of siege was raised, and the Mosquito
flag hoisted alongside of that of Nicaragua ; and on March 3, 1 894, Seiior
Lacayo entered with Captain Howe, of 11. B. M. S. Cleopatra, and Mr.
Bingham, into a "provisional treaty" for the government of the Reser-
vation. Under this arrangement Seiior Lacayo agreed (1) to organize a
force for the protection of Bluefields, (2) to organize a municipal council
of five persons, three to be appointed l)y himself and two by the Ameri-
can consul, (3) to withdraw the military forces from the Reservation,
and (4) to respect the treaties between Great Britain and Nicaragua.
The council was appointed, Senor Lacayo himself becoming president
of it, and Mr. Seat appointing the two American members. The Nica-
raguan troops were embarked on the Cleopatra for San Juan del Norte,
and at the joint request of Seiior Lacayo and Mr. Hatch, the British
acting consul or proconsul, a force of British marines was landed to
assure order.^ The provisional government was, however, objected
to by the American residents, who desired to preserve the local auton-
omy, and to that end sought to obtain a larger rei^resentation of the
people in the municii)al council; and in order to present their views
to their Government they sent to Washington a delegation, of which
Mr. Seat, the consular agent, was a member.'^ March 10, 1894, Seiior
Lacayo concluded with the British consul an agreement, or protocol,
for a provisional government, under a municipal council of seven
members, of whom two were to be appointed by the Nicaraguan com-
missioner, two by the American consul, one by the Indians, and one
by the Creoles, the commissioner himself being president.'^ This pro-
tocol was approved by Seiior Madriz, who soon afterwards arrived as
a special commissioner from Nicaragua, and who, on March 28, 1894,
proclaimed it. The British marines were reembarked on the 20th of
March, receiving the thanks of the Nicaraguan commissioner and tlie
American residents.''
When news was received at Washington of the landing of British
marines at Bluefields, instructions were cabled to the minister of the
United St^es in Nicaragua to report whether they were landed
"under asserted right of sovereignty or only for protection;" and to
«For. Rol. 1894, App. I. 237-339.
'>For. liel. 1894, App. I. 239-341.
<'For. Rel. 1894, App. I. 3.-)3-3r)4, 355, 356-358. As to the framework of the pre-
vious Mos(i[uito government, see id, 376-379; and, as to land titles in the reserve,
id. 284-286.
''For. Rel. 1894, App. I. 370.
«For. Rel. 1894, App. I. 365, 269,*270, 273.
244 INTEROCEANIC COMMUNICATIONS. [§367.
the ambassador of the United States at Londou to ascertain the
occasion for their landing."
"Just had an audience with Lord Kimberley, who is without precise
knowledge or reliable information of occurrences at Bluefields. British
Government have given no instructions and are awaiting information
which, when received, will be promptly and fully communicated to the
Un ited States. British consul at Greytown telegraphed, 4th of March,
British minister at Guatemala, that Nicaraguans suddenly seized Blue-
fields and displaced Mosquito flag, behaving violently and cruelly.
Because of disorders and dangers to residents, British war vessels
visited Bluefields. Mosquito flag rehoisted, quiet restored, pending
settlement. Extract from Lord Salisbury's note of March, 1880, in
Foreign Relations for that year, i^age 409, has full concurrence of Lord
Kimberley, ' No protectorate in substance or form, nor anything in
nature of protectorate, desired or intended by British Government.'
R(;ad in this connection instructions, Bayard to Phelps, No. 530,
November, 1888. I believe landing of forces was to extend safety to
residents and check violence. "
Mr. Bayard, amb. to England, to Mr. Gresham, Sec. of State, tel., March
15, 1894, For. Rel. 1894, App. I, 250. See, also, id. 251.
" It appears to be conclusively established that the British naval and
consular agents in Nicaragua have joined with the Nicaraguan commis-
sioners in various arrangements for the administration of local gov-
ernment in the Mosquito Indian Reservation. The first of these
agreements, reached in conferences held on February 26 and 27, between
the Nicaraguan commissioner for the reservation, Seiior Lacayo; the
British consul at San Juan del Norte, Mr. Bingham, and Captain Howe,
of II. M.S. Cleopatra, appears not to have been completed and announced
until March 4, after the C^eopa^ra had visited Colon for the purpose of
receiving instructions from London. It would seem that Her Majesty's
Government had cognizance of the proposed arrangement. The pro-
visional agreement of March 4 proving abortive, it gave place to another
understanding reached on March 19, between the same parties, which
does not appear to have been announced until approved, on March 25,
by the newly arrived special commissioner of Nicaragua, S«iior .lose
Madriz, tlie Nicaraguan minister for foreign afllairs, by whom it was
incorpoi'ated and proclaimed in a decree, dated March 28, purporting to
establish a provisional government for theMosquito Indian Reservation.
"These several arrangements in terms rest upon what are called
'contracts' and 'i^rotocols' between the representatives of Great
Britain and Nicaragua. I^y Seiior Madriz's decree of March 28, these
arrangements are to last 'until the high contracting signatories,
parties to the treaty of Managua, datetf 1860, arrange the needful
regarding the reserved territory.'
«For. Rel. 1894, App. I. 250.
§ 367.] MOSQUITO QUESTION SINCE 1860. 245
"I am unable to see that tliis joint assumption of authority by British
and Nicaraguan agents is compatible with the stipulations of the treaty
of Managua. By that treaty Great Britain renounced all sovereignty
over the reservation and recognized the sovereignty of Nicaragua over
the same, and Nicaragua agreed that the Indians should enjoy ' the
right of governing according to their own customs, and according to
any regulations which may from time to time be adopted by them not
inconsistent with the sovereign rights of the Republic of Nicaragua,
themselves, and all persons residing within such district,' subject only
to the future contingency of their agreeing ' to absolute incorporation
into the Republic of Nicaragua on the same footing as other citizens of
the Republic, and . . . subjecting themselves to be governed by
the general laws and regulations of the Republic, instead of by their
customs and regulations.'
" The stipulations exclude all idea of local government by others
than the Indians in the reservation. Thej"^ allow no room for foreign
intervention in the government of the reservation, or for the admin-
istration of the affairs therein by resident aliens.
"That the provisional plan formulated by the representatives of
Nicaragua and Great Britain provides for the appointment of Ameri-
can, Indian, and Creole representatives on the i^roposed governing
commission in nowise alters the essential character of the transaction.
The arrangement itself rests upon no sound basis of existing right.
Its tendency can only be toward fortifying the assumption that ' Mos-
quitia ' is a territorial entity with sovereign rights.
"The agents of the United States in Nicaragua have had no j)art in
framing the reported provisional arrangement, and they have signified
their intention not to participate in its administration. The proceed-
ing has not, and can not have, the sanction of this Government,
directly or indi recti j^
"I am pleased to see by Captain Watson's report that the landing
of British forces in the territory was simply for the protection of life
and property — American and native as well as Englisli — and tliat it
has not lasted longer than was warranted b)^ events. . . .
" With tlie foregoing views and the inclosed papers before you, you
are in a position to express to Lord Kimberley tlie President's liopo
and expectati<m tliat the anomalous situation now disclosed may
speedily cease and that no foreign agency shall be permitted to dic-
tate or participate in the administration of affairs in the Moscjuito
Reservation."
Mr. Gresham, Sec. of State, to Mr. Bayard, ami), to England, No. 374, April
30, 1894, For. Rel. 1S94, App. I, 271.
In an instruction to Mr. Baker, min. to Nicaragua, May V2, 1S94, id. 290,
Mr. Greshani said: "Ycm should take care to say nothing tending to
disparag(5 Nicaragua's riglitful c-laini to paramount sovereignty or to
encourage x>retensions to autonomous rights inconsistent therewith.''
See, also, Mr. Gresham to Mr. Baker, June 13, 1894, id. 296; also, 302.
246 INTEROCEANIC COMMUNICATIONS. [§ 367.
"Had an interview with Lord Kimberloy to-day, who stated no inten-
tion or desire of (4reat Britain to exercise protectorate in any form
over any i)ortion of Nicaraguan toi-ritory, bnt to act thoroujijlily in
concert with tlie United States for maintaining safety of the citizens
and property of both conntries, continuing our treaty of 1850 in
unbroken force and effect. British consul acted without instructions
in making provisional agreement in March, under apprehended dan-
ger to life and property. British Government anxious for consulta-
tion with the (Tovernment of the United States to guard against
appreliended Nicaraguan violence to American and British interests.
British ambassador at Washington instructed to that effect."
Mr. Bayard, ainb. to England, to Mr. Gresham, Sec. of State, tel., May 22,
1894, For. Rel. 1894, App. I. 290. See, also, full dispatch of Mr. Bay-
ard, id. 291-293.
July 5 and 0, 1S04, a disorder, originating in a dispute of police-
men, chiefly .Jamaicans, with the pr6visional government as to over-
due pa3% developed into an uprising, in which that government was
overthrown. A proclamation, signed by the Mosquito chief, Clar-
ence, who during the troubles in February had retired to Pearl
Lagoon, was published, declaring that he had resumed his functions
and calling upon the people to recognize his authority. The Nica-
raguans, however, declared their purpose to reestablish their author-
ity; and Gen. Cabezas, who I'emained at Bluefields as Nicaraguan
commissioner, declared a state of siege, and announced that all who
had participated in the uprising would be tried as rebels by a military
court. ^' Seiior Madriz was sent back to the Reservation witn a mili-
tary force, and the Nicaraguan authority was reestablished.* It was
charged that the revolution, which Mr. Seat declared to have been an
"impromptu uprising of the natives and Jamaica negroes," was par-
ticipated in by Americans; but the charge was disproved except as to
two or three persons of comparative unimportance.'^ The occurrence,
however, added to the complications of the situation, which was
further ^^reatly embarrassed, especially as between Nicaragua and
(xreat Britain, by the sudden seizure and expulsion b}^ the Nica-
raguan authorities of two American citizens and twelve British sub-
jects, among the latter being Mr. Hatch, the British i)roconsul.'^'
"My instruction to you of April 30, No. 374, will have shown that
the late attempts to organize, through alien intervention, a govern-
ment for the Mosquito Reservation wholly foreign to the scheme pro-
vided by the trc^aty of Managua were deemed by us to be at variance
with the poli(;y and engagements of half a century. Acceptance of
"For. Rel. 1894, App. I. :}03-;30r), 318. 317, 319. 321, 326.
'^For. Rel. 1894, App. I. 344-346.
cFor. Rel. 1894, App. I. 307, 309-310, 313, 320. 324, 325, 326.
'/For. Rel. 1894, App. I. 332, 336-337, 338, 343, 348, 350, 352, 355.
§ 367.] MOSQUITO QUESTION SINCE i860. 247
the implied invitation of Lord Kiinberley for the United States to join
with Great Britain in devising a solution of the problems growing out
of the Bluefields incident might imply a willingness on the part of this
Administration to depart from the consistent policy pursued by pre-
vious Administrations in dealing with Central American questions.
"The situation at Bluefields, and elsewhere in the strip, presents no
question difficult of solution. The sovereignty of Nicaragua over the
whole of the national domain is unquestionable. She has granted or
secured to certain Indians within part of her domain the right of self-
government, under expressed conditions and limitations. It may be
safely said that such government does not exist, and has not existed
in the Mosquito territory. An alien administration, in other interests
than those of the Indians, notoriously exists, especially at Bluefields.
Nobody is deceived by calling this authority a Mosquito Indian gov-
ernment. No matter how conspicuous the American or other alien
interests which have grown up under the fiction of Indian self-govern-
ment, neither the United States nor Great Britain can fairly sanction
or uj)hold this colorable abuse of the sovereignty of Nicaragua.
' ' So far as American rights of person and property in the reservation
are concerned, this Government can not distinguish them from like
rights in any other part of Nicaragua, and should they be invaded we
could only look to the territorial sovereign for redress. This being so,
the United States could neither participate in nor sanction any device
whereby the ultimate authority and international responsibility of
Nicaragua in respect of American citizens in the reservation might be
impaired or restricted.
"These general considerations are submitted for your guidance in
dealing with any suggestions Lord Kimberley may advance."
Mr. Gresham, Sec. of State, to Mr. Bayard, amb. to England, July 19, 1894,
For. Rel. 1894, App. I. 311, 313.
"To-day, in a personal interview at the foreign office witli Lord
Kimberley, his lordship, referring to the presence of the two armed
ships of the United States and Great Ik-itain at liluefields, said tliere
would be no difficulty in their keeping order, and he deprecated very
positively the use of the name of the Mosquito Indians as a shield
under which foreign residents sought to wage war in opposition to
Nicaragua, and said that the presence of the British vessel and armed
forces had no other object or purpose than to protect the lives and
property- of British residents during a period of lawlessness and strife,
and tliat the only desire of his Government bej'oud that was to induce
the Nicaraguans to treat the Indians with forbearance and moderation,
and not shoot them down, as they were very apt to do.
"I took the opportunity to repeat what I had stated to his lordship
on a former occasion — that the United States were wholly opposed to
the employment of the fiction of a Mosquito government to organize
248 INTEROCEANIC COMMUNICATIONS. [§ 3G7.
an opposition to iho (xovernnient of Nicaragua, whicli had no connec-
tion wliatevcr with the customs and domestic usages of the Mosquito
Indians, and that American citizens would not l>e allowed to set np
any such government under any pretext."
Mr. Bayard, amb. to Englaml, to Mr. Gresham, Sec. of State, Ang. 10. 1894,
For. Rel. 1894, App. I. 332.
See, also, Mr. Gresliam, Sec. of State, to Mr. Bayard, amb. to England, Aug.
22, 1894, id. 328.
"I have the honor to state that yesterday, by appointment, I called
on Lord Kimberley at the foreign office, and the subject of the inter-
view was the present condition of affairs between Great Britain and
Nicaragua, arising out of the rough treatment of Mr. Hatch, a repre-
sentative of the former Government at Bluefields, at the hands of
Nicaraguan authorities.
" His lordship stated the occurrences complained of dated some three
months ago, and, although explanation had at once been demanded,
no response was made until two days ago, when a very voluminous
reply in Spanish (necessitating translation) had been sent in, but
which he had not yet had time to consider.
"For the purpose of sending this dispatch by the mail to-day, it is
enough to say that his lordship desires explicitly to have it understood
that any action in the way of obtaining redress from Nicaragua which
Her Majesty's Government may hereafter decide is necessary in the
premises is wholly unconnected with any political or conventional
question touching the Mosquito Reservation, but is simply a pro-
ceeding, on the grounds of international law, to obtain satisfaction
for an affront.
"His lordship repeated to me, with much emphasis, his desire that
this should be understood, and that he had no other wish than to act
in accord and with the approval of the United States in matters con-
cerning i)olitical control in Central America.
"I reminded his lordship of the very imperfect civilization of the
region where these difficulties had arisen, and of the incidental depar-
tures from the regulated proprieties of official life and legal methods
which were naturally to be looked for in that quarter.
"I told him in general substance the views I had expressed to Senor
Barrios here in October last, and lately in Washington to Seiior Guz-
man, in relation to the entire facility and finality with which the Gov-
ernment of Nicaragua could pacify the entire region and absorb the
small remnant of Indian self-government in Mosquito by simply deal-
ing with generosity and gentle pressure with the leading Indians, and
procure that 'formal incorporation' of the territory of the Mosquito
Reservation and the rest of Nicaragua provided for in the treaty of
Managua, and thus the entire question of jurisdiction and of British
or other interference could be ended.
§ 367.] MOSQUITO QUESTION SINCE 1860. 249
"Lord Kimberley warmly seconded this view, and expressed a desire
it should be carried out. "
Mr. Bayard, amb. to England, to Mr. Gresham, Sec. of State, Nov. 24, 1894,
For. Rel. 1894, App. I, 354.
"Minister from Nicaragua is advised by his Government that Brit-
ish minister to Nicaragua declares England does not accept Nicara-
guan rule in Mosquito territorj^ and that British minister has tele-
graphed to Limon for English war vessel to go to Bluefields. While
this information is not fully credited here, you will inquire and
report."
Mr. Gresham, Sec. of State, to Mr. Bayard, amb. to England, tel., Nov. 24,
1894, For. Rel. 1894, App. I, 356.
"Lord Kimberley, having my note of the 2Gth lying before him,
stated that my report to you of the interview of F'riday previous, as
recited in my note of that day to him, was entirely accurate, but that
he had not then informed me of his latest telegraphic instructions to
the British minister at Nicaragua respecting a number of decrees
which had been lately promulgated at Bluefields bj'' the Nicaraguan
commissioner, and which, pending the consideration of the incident
of the arrest and expulsion of the 15ritish proconsul and the proposed
discussion here by Seiior Barrios, were not accepted by the British
Government, but that a notification of a cautious nature — ' a caveat '
(as his lordship termed it) — had been filed by the British minister, in
order that the assent and approval by Great Britain of these decrees,
so far as they affected British interests in Nicaragua and British duty
under the treaty of Managua and the Austrian award thereunder,
should not be considered as conclusively given, but to remain sus-
pended until the mission of Seiior Barrios and the incident of Hatch's
arrest should have reached a satisfactory termination."
Mr. Bayard, amb. to England, to Mr. Gresham, Sec. of State, Nov. 27, 1894,
For. Rel. 1894, App. I. 356. The note of Nov. 26, was as follows:
" Dear Lord Kimberlf.y: After the interview which I had the honor to hold
with your lordship on last Friday afternoon I wrote to my Government
a full statement of what yon then told me yon had in possible contem-
plation in relation to Nicaragua, after yon should have considered the
reply of that Government (then undergoing translation from the Span-
ish) to your demand for explanaticm of the incident of the arrest and
forcible expulsion by the Nicaragtaan authorities of Mr. Hatch, the
locum tenens of the British consiil at Bhiefields, in August last.
" I reported very fully your statement of the attitude of Great Britain
toward Nicaragiia and your desire to have it explicitly iinderstood by
the United States that any measures Her Majesty's Government might
feel obliged to adopt, by reason of the alleged ill treatment (^f Proconsul
Hatch, or of other British siibjects, at Bluefields, would be wholly apart
and unconnected with the 'Mosquito' question or the jurisdiction of
Nicaragua over the inhabitants of the territory included in the region
that bears that name; and that you proposed to proceed, solely upon
250 INTEROCEANIC COMMUNICATIONS. [§367.
grounds of international dnty and self-respect, to procure such redress
for an alleged wrong to your citizens as might be foiind just and neces-
sary, and that no jurisdictional or other question would be involved.
"Late on Saturday night, and after my dispatch had gone, I received a
telegram from Secretary Gresham to the effect that the Nicaraguan
minister at Washington stated that he had been informed by his Gov-
ernment that the British minister to Nicaragua had announced that his
Government does not accept Nicaraguan rule in the Mosquito territory,
and that he had sent for a British man-of-war.
'' The Secretary is not disposed to credit these statements, and merely asks
for information; but before answering his telegram, I wanted to keep
you advised of all the facts and, if you think I should lie further
informed than I was by you in our interview of Friday, you will kindly
let me know, and I will at once come and see you."
Mr. Bayard's dispatch of Nov. 34 was acknowledged by Mr. Gresham,
Dec. 3, 1894, as a gratifying confirmation of communications made by
the British embassy. (For. Rel. 1894, App. I. 358.)
See a reference to the Bluefield's incident in President Cleveland's annual
message, Dec. 3, 1894.
"I have the honor to transmit to your excellency a copy of the
resolution passed November 20, last, by the Mosquitia convention,
comijosed of delegates from all the native tribes of the region called
the Reserve, and which from the present date will be known by the
name of ' Department Zelaya. '
"As your excellency will observe, the convention resolved, freely
and spontaneously, the absolute incorporation of that territory in the
Republic of Nicaragua, recognizing the constitution of that Republic
in a decisive and formal manner, in doing which they did no more than
carry out the provisions of article 4 of the treaty of January, 1860,
between Nicaragua and Great Britain, generallj'^ known under the
name of the 'treaty of Managua,' in which it was provided, as was
proper, that nothing should prevent, at any future time, the Mosquito
Indians from carrying out the aforesaid incorporation and becoming
subject to the laws and general regulations o'f the Republic, in place
of being governed by their own customs and laws.
"This decision of the Mosquito delegates puts an end to the diffi-
culties which existed in that portion of the Nicaraguan territory, and
at the same time renders impossible, in future, any attempt to ignore
the recognition of the absolute sovereignty of Nicaragua over the
region formerly called 'Mosquitia,' seeing that, in view of the resolu-
tions of the natives themselves, no pretext at all can be found for such
a i)rocedure.
"I take pleasure in assuring your excellency that Nicaragua highly
appreciates the kind and opportune action of the Government of the
United States during the difliiilties to which I have referred, and that
she recognizes how powerfully that action has contributed to the happy
and final settlement of the question.
"On my own i)art, I desire to render to your excellency personally
my most sincere thanks for the friendly interest which you have
§ 367.] MOSQUITO QUESTION SINCE 1860. 251
always been pleased to show me in tlie said matter, thus contributing
in an efficient manner to bring the affair to a satisfactory conclusion."
Mr. Guzman, Nic. min., to Mr. Gresham, Sec. of State, Dec. 28, 181)4, For.
Rel. 1894, App. I. 360.
The "resolution" of the Mosquito convention, enclosed by Dr. Guzman,
was as follows:
' ■ Whereas the change which took place on the 13th of February of the present
year was due to the efforts of the Nicaraguan authorities to endeavor to
free us from the slavery in which we were;
" Whereas we have agreed wholly to submit to the laws and aiithorities of
Nicaragua for the purpose of forming part of their political and admin-
istrative organization ;
" Whereas the lack of a respectable and legitimate government is always the
cause of calamity to a people, in which condition we have been for so
long a time;
" Whereas one of the reasons of the backward condition in which we live
doubtless was the improper use of the revenues of the Mosquito terri-
tory, which were employed for purposes which had nothing to do with
good administrative order;
" Whereas although the constitution of Nicaragua provides for all the neces-
sities and aspirations of a free i)eople, we, nevertheless, desire to retain
special privileges in accord with our customs and our racial disposition.
" In virtue of all the foregoing, in the exercise of a natural right, and of our
own free will, we hereby declare and
"Decree.
"Art. 1 . The constitiition of Nicaragua and its laws shall be obeyed l)y the
Mosquito people who shall be under the protection of the flag of the
Republic.
"Art. 3. All revenues that may be produced by the Mosquito shore district
shall be invested for the benefit of that distric^t, and we reserve our own
financial autonomy; but the said revenues shall be collected and admin-
istered by the officers of the treasury of the supreme Government.
"Art. 3. Natives shall be exempt from all military service in time of peace
and war.
"Art. 4. No tax shall be levied upon the persons of Mosquitos.
"Art. 5. The right of siiffrage shall be enjoyed by both males and females
who are more than eighteen years old.
"Art. 6. The native communities shall be under the immediate control of
the inspecting chief and of the alcaldes and police officers in their
respective localities.
"Art. 7. None but Mosquito Indians shall be elected to fill the said offices.
"Art. 8. Alcaldes and iiolice officers shall hold their positions so long as they
shall enjoy the confidence of the people, but they may be removed by
order of the intendant or by popular motion.
"Art. 9. When the alcaldes and police officers enter upon the duties of their
offices, the chief inspector shall admister the oath of office to them, for
which purpose he shall make use of the following form: ' Do you swear
by God and the Bible to exert yourself in behalf of the happiness of the
people that have elected you, and to obey and execute the laws of Nic-
aragua? ' The person to whom this question is addressed shall reply,
' Yes, I swear.'
!
252 INTEROCEANIC COMMUNICATIONS. [§367.
"Art. 10. Tho people shall promulgate their local regulations in assemblies
over which the chief shall preside, and such regulations shall be sub-
mitted for approval to the superior authority of the national Govern-
ment on the coast.
"Art. 11 . In token of gratitude to General I. Santos Zelaya, the President of
the Republic, to whose efforts we owe (enjoy) the privilege of enjoying
our liberty, the district which has heretofore been known as the Mos-
quito Reservation shall henceforth be called the Department of Zelaya.
" Done in the hall of sessions of the Mosquito convention this 20th day of
November, one thousand eight hundred and ninety-four.
"The signatures of the delegates follow with this authentication: 'The
undersigned hereby certify that they were present at the session of the
Mosquito assembly in which the foregoing decree was adopted, which
decree was promulgated by the unanimous consent of the representa-
tives above named, who, being unable to write, have accepted our cer-
tificate. B. B. Seat, U. S. consular agent; J. Wienberger, alcalde of the
city of Bluefields; Sam. Weill, mayor; A. Aubert, treasurer-general. '
"R. Cabkzas,
" Intendant-Oeneral of the Atlantic Coast of Nicaragua.
" Before me,
"Josfi Maria Mongrio,
" Secretary of the IntendanVs Office."
By a circular telegram addressed by the President of Nicaragua to the Presi-
dents of the other Central American Republics, in May, 1899, it was
announced that the Mosquito Indians had renounced the special rights
reserved to them by the foregoing "resolution," or convention. (Mr.
Hay, Sec. of State, to Mr. Merry, mln. to Nicaragua, June 3, 1899, MS.
Inst. Cent. Am. XXI. 492, acknowledging receipt of Mr. Merry's No.
263, of May 18, 1899.)
The Indians of the Riti-pura hamlet sent a petition to the American consul
atSan Juan del Norte, protesting against the "Act of Reincorporation,"
and the abrogation of the convention of 1894. (Mr. Hay, Sec. of State,
to Mr. Merry, min. to Nicaragua, No. 252, July 3, 1899, MS. Inst. Cent.
Am. XXI. 507, enclosing copies of two dispatches from the consul at
San Juan del Norte, Nos. 256 and 257, June 27, 1899.)
In a note to Mr. Guzman, Dec. 31, 1894, acknowledging the receipt
of his note of the 28th and the accompanying copy of the act of incor-
poration, Mr. Gresham said: "Having alreadj', upon information
received from the United States minister at Managua and our naval
commander at Bluefields, as well as from yourself, orally expressed
my satisfaction at this outcome of a situation which for nearly a year
has demanded careful consideration, I take this opportunity to state
the gratification it afi'ords this Government to see the voluntary and
orderly accomplishment of this important step by the native Mosquito
Indians themselves.""
Tho National Legislative Assembly of Nicaragua, Feb. 27, 1895,
approved the resolution of the Mosquito convention.'^
Mr. Baj^ard, in a dispatch of Dec. 22, 1894, stated that "there was
the most open expression of satisfaction at the foreign office upon the
"For. Rel. 1894, App. I. 363. ''For. Rel. 1895, II. 1034.
§ 367.] MOSQUITO QUESTION SINCE 1860. 253
reported voluntary incorporation of tlie Indians with the rest of Nica-
ragua" ; and denied, on the written authority of Lord Kimberlej^, a
rumor that the Mosquito chief, who was in Jamaica, had been informed
that the British authorities would not recognize the new order and had
been notified to hold himself in readiness to return to Bluefields.*
"In last year's message I narrated at some length the jurisdictional
questions then freshly arisen in the Mosquito Indian strip of Nicar-
agua. Since that time, by the voluntary act of the Mosquito Nation,
the territory reserved to them has been incorporated with Nicaragua,
the Indians formally subjecting themselves to be governed by the
general laws and regulations of the Republic instead of by their own
customs and regulations, and thus availing themselves of a i^rivilege
secured to them by the treaty between Nicaragua and Great Britain
of January 28, 1860."
President Cleveland, annual message, Dec. 2, 1895, For. Rel. 1895, p. xxxi.
The British Government appears, however, to have reserved its
opinion as to the effect of wliat had been done. In a note to Dr.
Barrios, Nicaraguan envoy at London, of Feb. 26, 1895, in relation to
the arrest and expulsion of British subjects. Lord Kimberley stated
that Her Majesty's Government, until that matter had been disposed
of, were not prepared "to discuss any questions with regard to the
treaty of Managua and the recent proceedings in the Mosquito
Reserve"; but that, so soon as the demands in relation to the former
matter had been satisfied, he should "be prepared to receive and con-
sider in a friendly spirit any representations on those questions which
the Nicaraguan Government may desire to make to Her Majesty's
Government."*
By a convention signed at London November 1, 1895, it was agreed
to constitute a mixed commission " to fix the amount due to British
subjects in respect of injury caused to them or their property or goods
in the Mosquito Reserve, owing to the action of tlie Nicaraguan
authorities in the course of the year 1894-." It was provided tliat the
commission should becomiwsed of a ]>ritish rej)resentative, who must
be well acquainted with the Spanish language; a Nicaraguan repre-
sentative, who must be well acquainted with English; and "a jurist,
not a citizen of any American State." Should the two governments
be unable to agree on this jurist he was to be named b}' the President
of the Swiss Confederation. The commissioners were to sit in Blue-
fields, and to decide the claims before them " in accordance with the
principles of international law, and the practice and jurisprudence
established by such analogous modern commissions as enjoy the best
reputation." By a protocol annexed to the convention, it was pro-
vided: "Her Majesty's Government will not support the claim of any
«For. Rel. 1894, App. I, 359-360. «>For. Rel. 1895, 11. 1028.
254 INTEROCEANIC COMMUNICATIONS. [§ 3C8.
person before the cominissioii unless they consider him to be a British
subject; and, on tlveir part, the Nicarafj:uan (Tovernment will accept
such status as duly established, subject to the production ])y tluun of
proof tliat the claimant is not entitled to it in contemi)lation of
English law."
For. Rel. 1890. 307-310.
Early in IJUK) it was imderstood that the British Goveniment was about to
submit to that of Nicaragua a proposal to conclude, in coimection with
the negotiations for a commercial treaty, a convention recognizing the
sovereign rights of Nicaragua over all the Atlantic c-oast of the Repub-
lic and providing for the enjoyment by the Mosquito Indians of certain
privileges previously enjoyed by them in matters of taxation and mili-
tary service. (Mr. Hay, Sec. of State, to Mr. Merry, niin. to Nicaragua,
Jan. 29, 1900, MS. Inst. Cent. Am. XXI. 019.)
As to the insurrection at Bluefields in February 1899, and the (question of
the payment of customs dues, see supra, § 21, vol. 1, p. 49 et seq.
IV. AMERICAN ROUTES AND GRANTS.
§ 3G8.
For information concerning old and new interoceanic canal routes,
projects and companies, in America, see Keasbey's Nicaragua Canal
and the Monroe Doctrine, at the various pages indicated in the index.
Much will also be found there in relation to railway projects.
The Government of New Granada granted to the Panama Railroad
Company the exclusive right to construct a railroad across the Isthmus
of Panama. The Attorney General of the United States expressed
the opinion that this exclusive right was not violated by a grant made
by New Granada to the Chiriqui Company to construct a railroad
across the Isthmus of Chiriqui. He added, however, that the question
was geographical rather than legal, and that any other person was as
good a judge of it as himself.
The position taken by the Government of the United States in the
matter was that the United States felt a deep interest in all ways of
communication between the Atlantic and Pacilic, and that if a rail-
road could be authorized and made across the Isthmus of Chiriqui
without interference with existing rights or violation of the good faith
of New Granada, it would be of great value to commerce, and of
especial value to the United States, so that the President would be
glad to render it any proper assistance within his reach. Tlie Presi-
dent also desired that the Panama Railroad Company sliould "obtain
all suitable facilities from New Granada for the prosecution and
extension of its great and increasing traffic. In any conflict of inter-
est between the two companies it is not our duty to interfere. We
wish them both success, and, in the ojHnion of the Attorney General,
there is good reason to believe that this success may be accomplished
without- any material conflict between them."
§308.] EOUTES AND GRANTS. 255
Mr. Cass, Sec. of State, to Mr. Jones, niin. to Colombia, May 4, 1860, MS.
Inst. Colombia, XV. 303: Black, At.-Gen., Sept. 19, 1859, 9 Op. 391.
In his instructions to Mr. Jones, Mr. Cass refers to an unofficial letter given
by him, January 17, 18G0, to Mr. Henry S. Sanford, with a view to obtain
facilities, as the representative of the Panama Railroad Company, for
the adjustment of matters in controversy between that company and the
New Granada Government. In this relation Mr. Cass particularly
referred to questions as to tonnage taxes and taxes on mail matter.
In a report to his Government, June 24, 1881, Mr. Pereira, secretary of the
Colombian legation at Paris, referring to the circumstance that he had
found M. de Lesseps engaged on a certain occasion in conversation " with
the North American general, Mr. Henry Shelton Sanford," speaks of
the latter as "' the same who went to Bogota in the years 1860 and 1861,
with the double charge of representing there the North American Gov-
ernment and the Panama Railroad Company." (For. Rel. 1881,359.)
In 1864 the minister of the United States at Bogota was instructed to use
his good offices to secure from the Government of Colombia an exten-
sion of the franchises of the Panama Railroad Company. (Mr. Seward,
Sec. of State, to Mr. Burton, min. to Colombia, Aug. 17, 1864, MS. Inst.
Colombia, XVI. 99.)
" The suit of Colombia against the Panama Railroad Co. for the possession
of Manzanillo Island has been decided by the Supreme Court of Colom-
bia in a manner entirely favorable to the company." (Mr. Wharton,
Act. Sec. of State, to Messrs. Barlow, Larocque & Choate, May 11,
1891, 181 MS. Dom. Let. 663. See, also, supra, § 344.)
"The Mexican Government liaving on the otli of February, 1853,
authorized the early construction of a jilank and rail road across tlie
Isthmus of Tehuantepec, and, to secure the stable benefits of said
transit way to the persons and merchandize of the citizens of Mexico
and the United States, it is stipulated that neither Government will
interpose any obstacle to the transit of persons and merchandize of
both nations; and at no time shall higher charges be made on the
transit of persons and property of citizens of the United States than
may be made on the persons and property of other foreign nations,
nor shall any interest in said transit way, nor in the proceeds thereof,
be transferred to any foreign government.
"The United States, by its agents, shall have the right to transport
across the isthmus, in closed bags, the uiails of the United States not
intended for distribution along the line of communication; also the
effects of the United States Government and its citizens, which may
be intended for transit, and not for distribution on the isthmus, free
of custom-house or other charges by the Mexican Government. Neither
passports nor letters of security will be required of persons crossing
the isthmus and not remaining in the country.
"When the construction of the railroad shall be completed, the
Mexican Government agrees to open a port of entry in addition to the
port of Vera Cruz, at or near the terminus of said road on the (iulf
of Mexico.
256 INTEROCEANIC COMMUNICATIONS. [§368.
*' The two Governments will enter into arrangements for the prompt
transit of troops and munitions of the United States, which that Gov-
ernment may have occasion to send from one part of its territory to
another, lying on opposite sides of the continent.
"The Mexican Government having agreed to protect with its whole
power the prosecution, preservation, and security of the work, the
United States may extend its protection as it shall judge wise to it
when it maj^ feel sanctioned and warranted by the public or inter-
national law."
Art. VIII., treaty between the United States and Mexico, Dec. 30, 1853,
commonly culled the Gadsden treaty.
As to the Louisiana Tehiiantepec Company, see Mr. Seward, Sec. of State,
to Mr. Marshall O. Roberts, Dec. 7, 1866, 74 MS. Dom. Let. 484.
See, also, same to same, Dec. 18, 1866, id. 522, enclosing copy of the charter
of the " Tehuan tepee Transit Company."
As to the claim of the Tehuantepec Ship-Canal and Mexican and Pacific R. R.
Co. against Mexico, see Moore, Int. Arbitrations, III. 3132.
In October, 1870, the minister of the United States at Mexico was instructed
to propose that the stipulations of the foregoing article be revived in
behalf of the Tehuantepec Railway Company, and also enlarged so as
to be applicable to a ship canal, for the construction of which the com-
pany contemplated applying for a concession. (Mr. Fish, Sec. of State,
to Mr. Nelson, min. to Mexico, Oct. 22, 1870, MS. Inst. Mexico, XVIII.
189.)
As to joint American and Mexican surveys, see For. Rel. 1871, 630.
*' The views of the President with respect to the transit routes across
the Isthmus were sufficiently explained in your instructions of 2d Jan-
uai*y last, and need hot be repeated now. While, however, our policy
concerning them is of the most liberal character, and contemplates
their free enjoyment by all the nations of the world, there are obvious
reasons why we should prefer to have them under the control and
management of American companies, and the United States could not
look with indifference upon any attempt to change this result at the
sacrifice of the rights of our own citizens. Should such an attempt
be made by the Government of Nicaragua, with respect to the transit
through that country, it will then be for this Government to determine
what measures are required of it for the just protection of its citizens
in the enjoyment of their rights. In your intercourse with the Nica-
raguan authorities you will bear in mind these considerations, and
while you will not undertake to commit your government to the abso-
lute enforcement of any contract, you will take care to point out to
to the Nicaraguan Government the dangerous consequences which
may ensue should its plighted faith be disregarded on a subject so
important as the route from the Atlantic to the Pacific, by the river
San Juan."
Mr. Cass, Sec. of State, to Mr. Lamar, min. to Cent. Am., June 3, 1858, MS.
Inst. Am. States, XV. 312.
§ 368. J ROUTES AND GRANTS. 257
This instruction is referred to in Mr. Cass, Sec. of State, to Mr. Body, Sec.
Am. Atlantic and Pacific Ship Canal Co., March 3, 1860, 52 MS. Dona.
Let. 11.
In a later letter to Mr. Body, March 23, 1860, acknowledging receipt of a
translation of a new contract between the Nicaraguan Government and
his company, Mr. Cass, in reply to a request for comments on the con-
tract, said: "Although this government takes a proper interest in
measures which may tend to secure or facilitate the transit across Nic-
aragua, any parties who may enter into a contract for that purpose,
must do so upon their own responsibility and cannot expect an opinion
from this Department upon the subject in advance of any occasion on
which the Department might deem itself warranted in acting." (52
MS. Dom. Let. 64.)
As to the conflicting claims of the Central American Transit Company and
the New Jersey and Pacific Transportation and Nicaraguan Railroad
Company, see Mr. Seward, Sec. of State, to Mr. Morris, April 38, 1868,
78 MS. Dom. Let. 396.
" In reply the undersigned feels called on simply to reiterate the doc-
trine which has been made public in the dispatch which he addressed
to General Lamar, on the 25th Julj^, 1858, on the subject, and which
is embraced substantially in the following sentences :
" 'Nor do they [the United States] claim to interfere with the local
Governments in the determination of the questions connected with the
opening of the routes and with the persons with whom contracts may
be made for that purpose. What they do desire and mean to accom-
plish is that the great interests involved in this subject should not be
sacrificed to any unworthy motive, but should be guarded from abuse,
and that, when fair contracts are fairly entered into with American
citizens, they should not be wantonly violated.' And again: ' There
are several American citizens who, with different interests, claim to
have formed engagements with the proper authorities of Nicaragua for
opening and using the transit routes, with various stipulations defining
their privileges and duties, and some of these contracts have already
been in operation. This Government has neither the authority nor the
disposition to determine the conflicting interests of these claimants.
But what it has the right to do, and what it is disposed to do, is to
require that the Government of Nicaragua should act in good faith
towards them, and should not arbitrarily and wrongfully divest them
of rights justly acquired and solemnly guaranteed.'
"Where one of the parties to a contract jjroceeds by an arbitrary
act to annul it, on the ground that the other party has failed to com-
ply with its conditions, and by a process whicli precludes any investi-
gation, the plainest principles of justice are violated. What the
United States require is not that tlieir citizens should be maintained
in rights they have forfeited, but that they should not be deprived of
H. Doc. 551— vol 3 17
258 INTEROCEANIC COMMUNICATIONS. [§ 3G8.
rights derived from the Government of Nicaragua without a fair
examination by an impartial tribunal."
Mr. Cass, Sec. of State, to Mr. Jerez, May 5, 1859, MS. Notes to Cent.
Am. I. 154.
"The contract of the Maritime Canal Company of Nicaragua was
declared forfeited by the Nicaraguan Government on the 10th of
October, on the ground of nonfulfillment witliin the ten years' term
stipulated in the contract. The Maritime Canal Company has
lodged a protest against this action, alleging rights in the premises
which appear worthy of consideration. This Government exi)ects
that Nicaragua will afford the protestants a full and fair hearing upon
the merits of the case."
President McKinley, annual message, Dec. 5, 1899. (For. Rel. 1899, p. xvii. )
"Tlie all-important matter of an interoceanic canal has assumed a
new phase. Adhering to its refusal to reopen the question of the
forfeiture of the contract of the Maritime Canal Companj^ which was
terminated for alleged nonexecution in October, 1899, the Govern-
ment of Nicaragua has since supplemented that action by declaring
the so-styled Eyre-Cragin option void for nonpayment of the stipu-
lated advance. Protests in relation to these acts have been filed in
the State Department and are under consideration. Deeming itself
relieved from existing engagements, the Nicaraguan Government
shows a disi)Osition to deal freely with the canal question either in
the way of negotiations with the United States or by taking measures
to promote the waterway.
" Overtures for a convention to effect the building of a canal under
the auspices of the United States are under consideration. In the
meantime, the views of the Congress upon the general subject, in the
light of the report of the Commission appointed to examine the com-
parative merits of the various trans-Isthmian ship-canal projects may
be awaited."
President McKinley, annual message, Dec. 3, 1900. (For. Rel. 1900, p. xxv.)
As to the incorporation of the Maritime Canal Company of Nicaragua by
the United States, see H. Report 211, 46 Cong. 3 sess.; S. Report 3G8, 47
Cong. 1 sess.; H. Report 1698, 47 Cong. 1 sess., parts 1 and 2; S. Report
952,47 Cong. 3 sess.; S. Report 1628, 49 Cong. 2 sess.; S. Report 221, 50
Cong. 1 sess.
For the certificate of incorporation, see S. Doc. 400, 56 Cong. 1 sess.
For a list of stockholders and an account of work done, see S. Rep. 2234, 51
Cong. 2 sess. ; S. Rep. 1262, 52 Cong. 2 sess.
" The Nicaraguan aiithorities having given notice of f orfeitiire of their con-
cession to the canal company on grounds purely tec;hnical and not em-
braced in the contract, have receded from that position." (President
Cleveland, annual message, Dec. 3, 1894, For. Rel. 1894, p. xiii.)
For the renewed notice of proposed forfeiture, see For. Rel. 1897, 417-419.
§ 3()8.] ROUTES AND GRANTS. 259
Message of President Cleveland, transmitting the report of a board of engi-
neers on the Nicaragua Canal, H. Doc. 379, 54 Cong. 1 sess., parts 1
and 2, vol. 89.
For the award of President Cleveland, March 23, 1888, on the boundary
dispute between Costa Rica and Nicaragua, see Moore, Int. Arbitra-
tions, II. 1945, 1964.
March 27, 189(5, Costa Rica and Nicaragua concluded a treaty for carrying
into effect the award of President Cleveland in their boundary dispute.
The two Governments agreed each to name a commission, composed of
two engineers or surveyors, and it was stipulated that whenever the
two commissions should disagree, the disputed point or points should
be submitted to the judgment of an engineer to be appointed by the
President of the United States. (For. Rel. 1890, 100-103.)
The award of General Alexander, thus designated as engineer-umpire, is
printed in For. Rel. 1897, 113-116. See, also. For. Rel. 1896, 100-102;
For. Rel. 1897, 111,330,419-421.
Correspondence in relation to the boundary between Colombia and Costa
Rica will be found in Foreign Relations 1893, 302, 216, 366, 370^ 381,
386, 387, 289, 294. The discussion is continued in Foreign Relations
1894, 180, 192. It is also discussed in a report of the Colombian minister
of foreign affairs, which was communicated to the Department of State
by the American minister at Bogota, in October, 1894. (For. Rel.
1894, 193.)
June 14, 1897, Mr. Baker, United States minister to Nicaragua, enclosed a
copy of a contract between that Government and the Atlas Steamship
Company, a British corporation, for the exclusive navigation of the
San Juan river and lake Nicaragua. Mr. Baker observed that while
the contract assumed to protect the concession of the Maritime Canal
Company, it made no provision for a future treaty with the United
States. December 17, 1897, the minister of the United States at Nica-
ragua was instructed to examine the concession and report his views
upon it, but to take no other action until he was further instructed.
(For. Rel. 1897,421,425.)
" Pim. Forwood & Kellock, steamshii) agents of 17 State Street, who for-
merly handled the business of the Atlas Steamship Company, and at
present have charge of the Atlas service of the Hamburg- American
Line, deny the report that the Hambiirg- American Packet Company,
as successor of the Atlas Steamship Comi)any. an English corporation,
has the exclusive rights of steam navigation of the Silaco Lagoon,
Nicaragua, for thirty years from Sept. 30, 1897, and the exclusive
right for the same period of constructing tramways and railways along
the line to avoid obstacles in the lower part of the San Jtian River.
They say that this concession was granted to the Nicaragua Mail Steam-
ship Company and afterwards acquired by the Atlas Steamship Com-
pany, The exclusive rights and concessions, however, were not included
in the purchase by the Hamburg- American Packet Company, but were
disposed of to the Caribbean and Pacific Transit Company, another
British corporation, which will have to be reckoned with before the
canal can be built." (New York Times, Dec. 80, 1901.)
"The best authorized map of Nicaragua, according to Mr. Hall's No. 646,
is attached to a work entitled ' Notas (5eogi"aficas y Economicas, sobre
La Republica de Nicaragua. Por Pablo (Paul) Levy. Paris, 1873.'
This work was subsidized and approved by the Nicaraguau Government
260 INTEltOCEANIC COMMUNICATIONS. [§ 368.
and may therefore be considered authoritative." (Mi. Bayard, Sec. of
State, to Mr. Whitney, Sec. of Navy, June 13, 1887, 164 MS. Dom.
Let. 310.)
As to the Panama and Nicaragua canal routes, see the fcjllowing
documents:
Report of Isthmian Canal Commission, Nov. 16, 1901, S. Doc. 54, 57 Cong.
1 sess., parts 1 and 3.
Report of the Isthmian Canal Commission, Jan. 18, 1902, advising accept-
ance of the proposition of sale of the New Panama Canal Co., S. Doc.
123, 57 Cong. 1 sess.
Mr. Morgan, S. Rep. 1, 57 Cong. 1 sess.
Mr. Morgan, S. Rep. 783, 57 Cong. 1 sess.
Messrs. Kittredge and Pritchard, S. Rep. 783, 57 Cong. 1 sess., part 2,
Mr. Morgan, May 26, 1902, S. Rep. 1663, 57 Cong. 1 sess.. adverse to S. Bill
5676, leaving the choice of the route to the President.
Mr. Hepburn, H. Report 15, 57 Cong. 1 sess.
Hearings before the Interoceanic Canals Committee, S. Doc. 253, 57 Cong.
1 sess.
As to the New Panama Canal Company, see S. Doc. 188, 56 Cong. 1 sess.
For further discussions as to the interoceanic canal, see:
A reprint of the document of 1885 (comprising S. Ex. Docs. 112, 46 Cong, 2
sess; 194, 47 Cong. 1 sess.; 26, 48 Cong. 1 sess.). with other correspond-
ence not previously communicated to Congress, S. Doc. 237, 56 Cong. 1
sess.
Interoceanic Canal; Mr. Morgan, Com. on Interoceanic Canals, May 16,
1900, S. Rep. 1337, 56 Cong. 1 sess., parts 1 and 2.
Mr. Morgan, Com. on Interoceanic Canals, June 4, 1900, on the Clayton-
Bulwer treaty, S. Report 1649, 56 Cong. 1 sess.
Mr. Hepburn, Com. on Interstate and Foreign Commerce, Feb. 17, 1900, H.
Report 351, 56 Cong. 1 sess. Correspondence and other papers relating
to the proposed Interoceanic Ship Canal, S. Doc. 161, 56 Cong. 1 sess.
An Isthmian Canal, S. Doc. 230, 56 Cong. 1 sess.
Cotton trade of the United States and an Isthmian Canal, S. Doc. 406, 56
Cong. 1 sess. Documents relating to the Interoceanic Canal, S. Doc.
357, 57 Cong. 1 sess.
List of books and articles in the Library of Congress, relating to the Inter-
oceanic Canal, S. Doc. 59, 56 Cong. 1 sess.
As to particular routes and surveys, see:
Report of Lieut. Michler, July 14, 1857, on surveys for an interoceanic
canal, S. Ex. Doc. 9, 36 Cong. 2 sess., 2 pts.
Report of Admiral Davis, July 11, 1866, on interoceanic canal and railway,
S. Ex. Doc. 02, 39 Cong. 1 sess.
Message of President Fillmore, July 27, 1854, respecting a right of way
across the Isthmus of Tehuantepec, S. Ex. Doc. 97, 32 Cong. 1 sess.
Lecture by Mr. Corthell, on Tehiaantepec route, S. Doc. 34, 54 Cong. 1 sess.
Reports of Lull and Collins Expedition of 1875, with maps, S. Ex. Doc. 75,
45 Cong. 3 sess.
Report of Lieut. T. A. M. Craven, dated Feb. 18, 1859, of a survey made of
the Isthmus of Darien. Mar. 18, 1880, H. Ex. Doc. 63, 46 Cong. 2 sess.
Report of historical and technical information relating to the problem of
interoceanic communication by way of the American Isthmus, by
Lieut. John T. Sullivan, U. S. N., with plates and maps, April 28, 1883,
H. Ex. Doc. 107, 47 Cong. 2 sess.
§ 368.] ROUTES AND GRANTS. 261
Reports of Rear- Admiral G. H. Cooper and Lieiit. R. P. Rodgers, U. S. N.,
respecting progress of work on the ship-canal across the Isthmus of
Panama, with plates and maps, Mar. 12, 1884, S. Ex. Doc. 123, 48 Cong. 1
sess.
Report on the San Bias route, S. Report 774, 57 Cong. 1 sess.
Memorial on the Aputi route, S. Doc. 245, 57 Cong. 1 sess.
Ship canals on the Isthmus of Darien, S. Doc. 389, 56 Cong. 1 sess.
By the act of June 28, 1902, Congress authorized the President to
acquire the rights of the New Panama Canal Company
y an- ^^^ ^^ enter into a treaty with Colombia for the bnild-
ama. "^
ing of the canal across the Istlimus of Panama; and
it also authorized him, in the event of failure to secure such a treaty
after the lapse of a reasonable time, to enter into negotiations for the
conclusion of a treaty for the construction of a canal by the way of
Nicaragua.
The conclusion of a treaty with Colombia and the subsequent revo-
lution on the Isthmus of Panama, after tlie failure of the Colombian
Congress to ratify the treaty, have been detailed in § 344, supra.
November 18, 1903, a convention was signed at Washington with
the Republic of Panama. This convention w^as duly ratified and the
ratifications were exchanged at Washington, February 26, 1904. By
this agreement the United States guarantees the independence of the
Republic of Panama, while the latter grants to the United States in
perpetuity for the construction, operation, and protection of the
canal, a zone 10 miles wide, extending the distance of 5 miles on
either side of the middle line of tlie route of the proposed canal. This
zone begins in the Caribbean Sea 3 marine miles from mean low-
water mark, and extends across the Isthmus of Panama into the
Pacific Ocean to a distance of 3 marine miles from mean low- water
mark; but the cities of Panama and Colon and the adjacent harbors
are not included in the grant. Within this zone, and also within the
limits of all auxiliary lands and waters which may be necessary and
convenient for the construction, operation, and protection of the
canal or of anj^ auxiliar}^ works, the Repul)lic of Panama grants to
the United States all tlie rights, power, and authority which the latter
would possess and exercise if it were the sovereign of the territory,
"to the entire exclusion of the exercise by the Republic of I'anama
of any such sovereign rights, power or authority."
By an order of June 24, 1904, the President of the United States
declared the canal zone of the Isthmus of Panama to be open to the
commerce of friendly nations, and established Aiu'on and Crystobal
as ports of entry therein.
For. Rel. 1904, 8, 543, 585.
As to sanitary conditions on the Isthmus of Panama, see For. Rel. 1904, 552.
As to the transfer of the canal zout; to th;' United States, see For. Rel.
1904, 582.
As to the payment of the canal indemnity, see For. Rel. 1904, Go I.
262 INTEROCEANIC COMMUNICATIONS. [§ 3G9.
As to the transfer of the property of the New Panama Canal Company to
the United States, see For. Rel. 1!)()4, 224, 302.
There is an article on the Panama Canal by Emory R. Johnson, in the
Political Science Quarterly, June, 190;}, p. 179.
See. also. Concha (Jose Vicente), Las ni^gociaciones diplomaticas del canal
de Panama, cartas y documentos. Bogota, 1904.
V. SUEZ CANAL.
November 30, 1854, the Viceroy of E^ypt j?ranted to M. Ferdinand
de Lesseps a concession for cutting through the Isthmus of Suez a
canal fit for ocean navigation. By Article I. of the concession M. de
Lesseps undertook to form a company for that purpose, under the
name of the Universal Company of the Suez Maritime Canal. By Arti-
cle VI. it was provided that the rates of passage should be agreed
on between the company and the Viceroy of Egypt and collected by
the agents of the company, that they should "be always the same for
all nations," and that " no special advantage" should ever be given
"to the exclusive profit of any of them."^«
By Article XIV. of another concession of January 5, 1850, tlie
Viceroy of Egypt solemnly declared, subject to the ratification of the
Sultan of Turkey, that the grand maritime canal from Suez to Peluse,
and the ports dependent on it, should always be open as neutral
passages to every merchant ship passing from one sea to the otln^r,
without any distinction, exclusion, or preference of persons or of
nationalities, on condition of paying the tolls and complying with the
regulations established by the Universal Company for the use of the
canal and its dependencies. As a consequence of this principle it
was further declared (Art. XV.) that the Universal Company should
not in any case give to anj'^ ship, company, or private person any
advantage or favor which should not be accorded to all other ships,
companies, or private persons on the same conditions.*
By the by-laws of the Universal Compan}', adopted at Alexandria,
January 5, 1850, the capital was fixed at 200,000,000 francs, repre-
sented by 400,000 shares of the value of 500 francs each.*^
By a convention of August G, 1860, between tlie Egyptian Govern-
ment and tlie company, 177,042 shares were assigned to the Viceroy.
It is stated that 207,111 shares were taken in Prancci, and a few in
Austria and the Netherlands. In 1875, the British Government bought
from the Khedive of Egypt 170,602 shares, which were all that then
remained in his possession, paying therefor 4,000,000/. sterling, less the
proportionate value of the 1,040 shares, the difference between 177,042
and 176,602.<^
nm Brit. & For. State Pap. 970, 971. ^55 Brit. & For. State Pap. 983.
''55 Brit. & For. State Pap. 979. <^Blue Book, Egypt, No. 1 (1876), 7.
§3C)9.] SUEZ CANAL. 263
By Article I. of the convention of January 30, 186G, between the
Egj'ptian Government and the company, it was agreed that the Egyp-
tian Government shonld occupy, within the perimeter of the hinds re-
served as dependencies of the maritime canal, any strategic position
or point which it should deem necessarj' to the defence of the coun-
try, such occupation not to be made an obstacle to navigation.'* This
provision is repeated in Article X. of the convention between Egypt
and the company, signed at Cairo, February 22, 1860.^ By Article
XVII. of the same convention all prior acts, concessions, conventions,
and statutes not inconsistent therewith were continued in force.
The Sultan of Turkey, by a firman of March 19, 180(5, confirmed the
convention of February 22, 1866."
In 1885 representatives of the Great Powers, who had met in Lon-
don to consider the financial condition of Egypt, adopted a declaration
in which it was stated that their governments had agreed to appoint a
commission of delegates to meet at Paris, March 30, 1885, for the pur-
l)ose of drawing up a convention guaranteeing at all times and for all
powers the freedom of the Suez Canal. '^ The commission met, but
separated June 13 without coming to any conclusion. October 21,
] 887, Lord Salisbury instructed the British embassy at Paris to lay
before the French Government proposals for a convention following
in the main the draft which was under discussion in 1885 and pre-
senting on certain points alternative suggestions. Lord Salisbury
remarked, however, that no instrument to which Great Britain and
France might set their signatures could have any practical value till
it had received the "assent of the suzerain and of the other powers
concerned." He also stated tliat it was his duty to renew the words
of a reservation made without opposition on any side by Sir Julian
Pauncefote at the close of the sittings of the commission of 1885, as
follows: "The British delegates, in presenting this draft of a treaty
as the definitive regulation intended to guarantee the free use of the
Suez Canal, think it their duty to formulate a general reservation as
to the application of these provisions, in so far as they may not be
compatible with the transitory and exceptional condition of things
actually existing in Egypt and may limit the freedom of action of
their Government during the period of the occupation of Egypt by
the forces of Her l^ritannic Majesty."^
A draft of a convention was signed by representatives of France
and Great Britain at Paris, October 24, 1887, subject to the con-
currence of the other powers represented on tlie commission at Paris
in 1885./ This draft was communicated to those powers by the Frencli
Government. At the same time Lord Salisbury sent out for com-
munication to the powers two circulars, one of which enclosed a copy
«56 Brit. & For. State Pap. 274. >' Holland. Studies in Int. Law, 287.
b^Q Brit. & For. State Pap. 277. < Bine Book, Egypt. No. 1 (1888), 35. 36.
"56 Brit. & For. State Pap. 293. ./"Blue Book, Egypt, No. 1 (1888), 45.
264 TNTEROCEANIC COMMUNICATIONS. [§ 369.
of his instructions to the British embassy at Paris of October 21, 1887,
containing the reservation made by Sir Julian Pauncefote in ISSS.*'
The draft having received the approval of the powers, it was formally
signed at Constantinople, October 29, 1888, the signatory powers being
Great Britain, Germany, Austria-Hungary, Spain, France, Italy, the
Netherlands, Russia, and Turkey. The ratifications were deposited
at Constantinople, October 22, 1888. This convention, after reciting
the wish of the powers to establish '*a definite system destined to
guarantee at all times, and for all the Powers, the free use of the Suez
Maritime Canal, and thus to complete the system under which the
navigation of this Canal has been placed, by the Firman of His Impe-
rial Majesty the Sultan, dated the 22nd February, 1866 (2 Zilkade,
1282), and sanctioning the Concessions of His Highness the Khe-
dive," provides as follows:
Article I. The Suez Maritime Canal shall always be free and open, in time of
war as in time of peace, to every vessel of commerce or of war, without distinc-
tion of flag.
Consequently, the High Contracting Parties agree not in any way to interfere
with the free use of the Canal, in time of war as in time of peace.
The Canal shall never be subjected to the exercise of the right of blockade.
Article II. The High Contracting Parties, recognizing that the Fresh-Water
Canal is indispensable to the Maritime Canal, take note of the engagements of
His Highness the Khedive towards the Universal Suez Canal Company as regards
the Fresh-Water Canal; which engagements are stipulated in a Convention bear-
ing date the 18th March, 1863, containing an expose and four Articles.
They undertake not to interfere in any way with the security of that Canal
and its branches, the working of which shall not be exxxjsed to any attempt at
obstruction.
Article III. The High Contracting Parties likewise undertake to respect the
plant, establishments, buildings, and works of the Maritime Canal and of the
Fresh- Water Canal.
Article FV. The Maritime Canal remaining open in time of war as a free passage,
even to the ships of war of belligerents, according to the terms of Article I. of the
present Treaty, the High Contracting Parties agree that no right of war, no act of
hostility, nor any act having for its object to obstruct the free navigation of the
Canal, shall be committed in the Canal and its ports of access, as well as within a
radius of 3 marine miles from those ports, even though the Ottoman Empire
should be one of the belligerent Powers.
Vessels of war of belligerents shall not revictual or take in stores in the Canal
and its ports of access, except in so far as may be strictly necessary. The transit
of the aforesaid vessels through the Canal shall be effected with the least possible
delay, in accordance with the Regulations in force, and without any other inter-
mission than that resulting from the necessities of the service.
Their stay at Port Said and in the roadstead of Suez shall not exceed twenty-
four hours, except in case of distress. In such case they shall be boimd to leave
as soon as possible. An interval of twenty-four hours shall always elapse between
the sailing of a belligerent ship from one of the ports of access and the departure
of a ship lielonging to the ho.stile Power.
Article V. In time of war belligerent Powers shall not disembark nor embark
within the Canal and its ports of access either troops, munitions, or materials of
oBlue Book, Egypt, No. 1 (1888), 46» Doc. No. 53.
§ 369.] SUEZ CANAL. 265
war. But in case of an accidental hindrance in the Canal, men may be embarked
or disembarked at the ports of access by detachments not exceeding 1,000 men,
with a corresponding amount of war material.
Article VI. Prizes shall be subjected, in all respects, to the same rules as the
vessels of war of belligerents.
Article VII. The Powers shall not keep any vessel of war in the waters of the
Canal (including Lake Timsah and the Bitter Lakes).
Nevertheless, they may station vessels of war in the ports of access of Port Said
and ^uez, the number of which shall not exceed two for each Power.
This right shall not be exercised by belligerents.
Article VIII. The Agents in Egypt of the Signatory Powers of the present
Treaty shall be charged to watch over its execution. In case of any event threat-
ening the security or the free passage of the Canal, they shall meet on the sum-
mons of three of their number under the presidency of their Doyen, in order to
proceed to the necessary verifications. They shall inform the Khedivial Govern-
ment of the danger which they may have perceived, in order that the Govern-
ment may take proper steps to insure the protection and the free use of the Canal.
Under any circumstances, they shall meet once a year to take note of the due
execution of the Treaty.
The last-mentioned meetings shall take place under the presidency of a Special
Commissioner nominated for that purpose by the Imperial Ottoman Government.
A Commissioner of the Khedive may also take part in the meeting, and may pre-
side over it in case of the absence of the Ottoman Commissioner.
They shall especially demand the suppression of any work or the dispersion of
any assemblage on either bank of the Canal, the object or effect of which might
be to interfere with the liberty and the entire security of the navigation.
Article IX. The Egyptian Government shall, within the limits of its powers
resulting from the Firmans, and under the conditions provided for in the present
Treaty, take the necessary measures for insuring the execution of the said Treaty.
In case the Egyptian Government should not have sufficient means at its dis-
posal, it shall call upon the Imperial Ottoman Government, which shall take the
necessary measures to respond to such appeal; shall give notice thereof to the
Signatory. Powers of the Declaration of London of the 17th March, 1885; and
shall, if necessary, concert with them on the subject.
The provisions of Articles IV., V., VII., and VIII. shall not interfere \\-ith the
measures which shall be taken in virtue of the present Article.
Article X. Similarly, the provisions of Articles IV., V.. VII., and VIII. shall
not interfere with the measures which His Majesty the Sultan and His Highness
the Khedive, in the name of His Imperial Majesty, and within the limits of the
Firmans granted, might find it necessary to take for securing by their own forces
the defence of Egypt and the maintenance of public order.
In case His Imperial Majesty the Sultan, or His Highness the Khedive, should
find it necessary to avail themselves of the exceptions for which this Article pro-
vides, the Signatory Powers of the Declaration of London shall be notified thereof
by the Imperial Ottoman Government.
It is likewise understood that the provisions of the four Articles aforesaid shall
in no case occasion any obstacle to the measures which the Imperial Ottoman
Government may think it necessary to take in order to inspire l)y its own f(5rces
the defence of its other possessions situated on the eastern coast of the Red Sea.
Article XI. The measures which shall l>e taken in the cases provided for by
Articles IX. and X. of the present Treaty shall not interfere with the free use of
the Canal. In the same cases, the erection of permanent fortifications contrary
to the provisions of Article VIII. is prohibited.
266 INTEROCEANIC COMMUNICATIONS. [§ 369.
Articlo XII. The High Contracting Parties, by application of the principle of
equality as regards the free use of the Canal, a principle which forms one of the
bases of the present Treaty, agree that none of them shall endeavour to obtain with
resx>ect to the Canal territorial or commercial advantages or privileges in any
international arrangements which may be concluded. Moreover, the rights of
Turkey as the territorial Power are reserved.
Article XIII. With the exception of the obligations expressly provided by the
clauses of the present Treaty, the sovereign rights of His Imperial Majesty the
Sultan, and the rights and immunities of His Highness the Khedive, resulting
from the Firmans, are in no way affected.
Article XIV. The High Contracting Parties agree that the engagements result-
ing from the present Treaty shall not be limited by the duration of the Acts of
Concession of the Universal Suez Canal Company.
Article XV. The stipulations of the present Treaty shall not interfere with the
sanitary measures in force in Egypt.
Article XVI. The High Contracting Parties undertake to bring the present
Treaty to the knowledge of the States which have not signed it, inviting them to
accede to it.
Article XVH. The present Treaty shall be ratified, etc.
Pari. Pap. Commercial. No. 2 (1889). 4.
In connection with the reservation made by Sir Julian Pauncefote
at Paris in 1885, and renewed by Lord Salisbury in 1887, at the time
of the submission of the convention for the assent of the powers, it
may be observed that Mr. Curzon, Under Secretary of State for
Foreign Affairs, speaking for the Government in the House of Com-
mons, July 12, 1898, stated that, owing to the reservation in ques-
tion, "the terms of the convention have not been brought into
practical operation.""
June 25, 1898, Mr. Day, Secretary of State, cabled to Mr. Hay,
United States ambassador in London: "We desire to send war ships
through the Suez Canal. Mention the matter to the minister for for-
eign affairs; and, while discreetly assuming that no objection will be
made, ascertain probable source of objection, if any, and attitude
of the Government of Great Britain thereon. Prompt action is
important."*
Mr. Hay immediately obtained an interview with Lord Salisbury,
and, assuming that no objection would be made to the passage of
United States ships-of-war through the canal, inquired "whether there
had been any modification of the convention of 1888, which would go
to place the nonsignatory powers on any different footing from those
signing the convention." Lord Salisbury replied that there had been
none, and Mr. Hay gathered from his remarks that he had no idea
that any power would make any protest against the use of the canal
by the United States, or that any protest would hold if it were made.
"The attitude of the British Government," said Mr. ILiy, "is that we
are unquestionably entitled to the use of the canal for war ships."*
« Hansard, 4th series, LXI. 667. *For. Rel. 1898, 982.
§369.] SUEZ CANAL. 267
"I have to acknowledge the receipt of your No. 438 of the 25th
ultimo, in which you convey the purport of your conversation with
the Marquis of Salisbury in relation to the passage of the Suez Canal
by ships of war.
"Your action in merely referring to the convention of Constanti-
nople of October 29, 1888, in relation to the free navigation of the
Suez Canal, as defining the attitude of the contracting parties on the
subject, is approved.
"The object of the Department in telegraphing to you was threefold :
"1. It was desired to avoid even the possibility of objection being
made to the use of the canal by our ships of war at a time when the
need for such use might be immediate and imperative.
"2. The Department, while recognizing the general and unre-
stricted purpose of the convention of October 29, 1888, was not dis-
posed wholly to rely upon it or formally to appeal to it, since the
United States is not one of the signatory powers.
"3. The Department was not disposed, by a formal appeal to the
convention, to recognize a general right on the part of the signatories
to say anything as to the use of the canal in any manner by the United
States.
"So far as the Department is advised, Great Britain is the only
Government that owns any stock, or at any rate a considerable
amount of stock, in the canal, and therefore the only one in a position
to assert anj^ claim of control on that ground.
" The Department is gratified with the response made by Lord Salis-
bury to your inquiry."
Mr. Day, Sec. of State, to Mr. Hay, amb. to England, July 14, 1898, For.
Rel. 1898, 983.
By the convention of Constantinople the Suez Canal is not neutral-
ized. This expression does not properly indicate the international
position of the canal. If it were neutralized it would be closed to the
ships of war of belligerents. Neither England nor France, nor any
other state having possessions in the Far East, as Holland and Spain,
would have been willing to concur in a diplomatic act by wliicli the
passage of the canal would have been forbidden to the ships of a bel-
ligerent state. The delegate of Russia expressed a wish that the Red
Sea should be placed under the reyinie created by the convention, in
order to assure access to the canal from the south in all circumstances.
The delegates from Italy strongly opposed this proposition.
Bonfils. Mamiel de Droit International Public (1894). 273.
The term nentralizKtion has come to lie used in a sense less strict than that
indicated by the aiithor, so as to inchide an arrangement whereby pro-
tection is sought to he guaranteed against hostile attack or hostile inter-
ruption, while the same freedom of use is soTight to be assured in war
as in peace. No doubt, however, the leading motive of agreements of
neutralization is to secure exemption from hostile attack and a corre-
268 INTEROCEANIC COMMUNICATIONS. [§ 370.
sponding prohibition of distinctive hostile use. When, by Article IX.
of the treaty of Vienna, provision was made for the " neutrality of the
Free Town of Cracow and its territory, "" it was declared in the same
breath: '" No armed force shall be introduced upon any pretense what-
ever." When, by Article XI. of the treaty of Paris, the Black Sea was
*' neutralized,"' the maintenance of armaments upon' it was forbidden.
In the neutralization of Luxemburg it was stiptUated tliat the city of
Luxemburg should no longer be treated as a federal fortress. By a
treaty between Austria, France, Great Britain, Prussia, and Russia,
signed at London November 14, 1863, the Ionian Isles were united to
Greece and were neutralized. Article III. of the treaty declares that
"as a necessary consequence of the neutrality to be thus enjoyed by
the United States of the Ionian Islands, the fortifications constructed in
the Island of Corfu and in its immediate dependencies, having no longer
any object, shall be demolished." The treaties of March 30, 18.56, No-
vember 2, 1865, and March 13, 1871, having effected the neutralization
of the Lower Danube and of the works constructed in aid of its naviga-
tion, the treaty of Berlin of July 13, 1878, provided (Article LII.) that
' ' all the fortresses and fortifications existing on the course of the river
from the Iron Gates to its mouths " should be " razed, and no new ones
erected." The Argentine Republic and Chile, by their treaty of Jioly
23, 1881, declare: "Article V. The Straits of Magellan are neutralized
forever, and their free navigation is guaranteed to the flags of all
nations. To insure this neutrality and freedom , it is agreed that no for-
tifications or military defenses which might interfere therewith shall be
erected."
As to the Straits of Magellan, see Abribat, Le Detroit de Magellan au point
de vue international: Paris, 1902.
Concerning the neutralization of the Suez Canal, Bonfils cites Twiss. La
neutralisation du canal de Suez, Rev. de Droit Int. VII. (1875), 628;
De la securite de la navigation dans le canal de Suez, Rev, de Droit Int.
XIV. (1882) , 572; Le canal de Suez etc. , Rev. de Droit Int. XVII. (1885) ,
615; Asser, Le canal de Suez et la convention de Constantinople, Rev.
de Droit Int. XX. (1888) , 529; F. de Martens, La question egyptienne et le
Droit int.
See, also, T. J. Lawrence, Essays on Int. Law, 41, 142; Gaignerot, La
question d'Egypte (Paris, 1901), 337 et seq.
As to the neutralization of canals, see Fauchille, Blocus Maritime (Paris,
1882), 184 et seq.
While a natiiral thoroughfare, although wholly within the dominion of a
Government, may be passed by commercial ships, of right, yet the
nation which constructs an artificial channel may annex such conditions
to its use as it pleases. (The Avon, 18 Int. Rev. Rec, 165.)
VI. CORINTH CANAL.
§ 370.
The Corinth Canal was opened August 24, 1893. It is about six
kilometres long. It is wholly within the territory of Greece, and
forms part of its territorial waters. The rights of proi)ertj% sov-
ereignty, and jurisdiction all belong to Greece. The canal is not
directly connected with the groat navigation of the Mediterranean.
The Suez Canal is of general interest, the Corinth of secondary inter-
§ 371.] THE KIEL CANAL. 269
est. It facilitates the relations of the Adriatic with Eastern Greece,
the Bosphorus, Asia Minor, and the Black Sea. The Suez Canal
unites all Europe, both Central and Western India, the Indian Ocean,
the Far East, East Africa, and Australia.
Bonfils, Manuel de Droit International Public (1894), 274.
VII. KIEL CANAL.
§ 371.
A maritime canal unites the Bay of Kiel to the mouth of the Elbe.
Its construction was due, not to individual initiative, but to the Ger-
man Empire, the reasons being strategic rather than commercial. Its
object was to establish easier communication between the two German
arsenals of Wilhemshaven and Kiel, and to enable the German fleets
to avoid the Danish Sound and Belts and escape a passage under the
fire of Danish guns. The commerce of Hamburg and of Bremen with
the Baltic will, however, derive advantage from the opening of this
way of communication. The canal, which is about 98 kilometres
long, is not international. Property, sovereignty, jurisdiction, admin-
istration and management all belong to the German Empire.
Bonfils, Manuel de Droit International Public (1894), 274, citing Fleury,
Canaux maritimes. Revue des deux mondes, November 15, 1893.
July 18, 1901, Mr. "White, American ambassador at Berlin, reported that in
accordance with a request made by the embassy ' ' permission ' ' had been
granted to the U. S. S. Enterprise to pass through the Kaiser Wilhelni
(Kiel) canal en route to the North Sea, the request having been made
by the embassy at the instance of the commander of the ship. The
embassy subsequently reported, on information furnished by the Amer-
ican consiilar agent at Kiel, that the canal dues paid by the Enterprise
amount to 400 marks and those by the U. S. S Buffalo to 900 marks,
which, considering the saving in time and coal, would apparently indi-
cate that it was less expensive for the ships to go throiigh the canal
than to round the Danish peninsula. (Mr. White, ambassador at Ber-
lin, to Mr. Hay, Sec. of State, July 18, 1901; Mr. Jackson, charge at
Berlin, to Mr. Hay, Sec. of State, Oct. 19, 1901: For. Rel. 1901, 184.)
CHAPTER X.
NATIONALITY.
I. SOTTECES OF NATIONALITY. § 372.
II. Citizenship.
1. By birth.
(1) By right of place. § 373.
(2) By right of blood. § 374.
2. By naturalization. § 375.
3. By revolution. § 376.
III. Naturalization.
1. Legislative and conventional regulation. § 377.
2. Voluntary individual action. § 378.
3. Collective naturalization.
(1) By political incorporation. § 379.
Louisiana cession.
Florida treaty.
Annexation of Texas.
Annexation of Hawaii.
Porto Rico and the Philippines.
(2) Provisions for individual election. § 380.
Treaty of Guadalupe Hidalgo.
Alaskan cession.
Treaty of Franlvfort.
Treaty with Spain, 1898.
IV. American Naturalization.
1. Regulated by Congress. § 381.
2. Connuitted to the courts. § 382.
3. Persons capable of naturalization. § 383.
4. Usual legal conditions. § 384.
5. Declaration of intention. *
(1) Usual requirement. § 385.
(2) Exceptions. § 380.
Innuigration during minority.
Service in Army.
Service in Navy or Marine Corps.
Special case in Hawaii.
(3) Does not confer citizenship. § 387.
Judicial decisions.
Executive action.
Cases of Italians.
6. Residence.
(1) Five years' rule. § 388.
Meaning of " contiimed term."
(2) I<]xceptions. § 389.
Seamen.
Service in Army.
270
TABLE OF CONTENTS. 271
V. Conventional Abbangements.
1. Treaties with the German States.
(1) Negotiations. § 390.
(2) Conditions of change of allegiance. § 391.
(3) Question as to Alsace-Lorraine. § 392.
(4) Practice of expulsion. § 393.
(5) Operation of treaties. § 394.
2. Belgium. § 395.
3. Sweden and Norway. § 396.
4. Great Britain. § 397.
5. Austria-Hungary.
(1) Conditions of change of allegiance. § 398.
(2) Practice of expulsion. § 399.
G. Denmark ; Ecuador. § 400.
VI. Naturalization not Retkoactive.
1. General principles. § 401.
2. German treaties.
(1) Military cases. § 402.
(2) Statutes of limitation. § 403.
3. Austro-Hinigarian treaty. § 404.
4. Belgian treaty. § 405.
5. Danish treaty. § 406.
0. Treaty with SvA'eden and Norway. § 407.
VII. Nationality of Married Women.
1. Marriage of American women to aliens.
(1) Effect on status. § 408.
(2) Reversion of nationality. § 409.
2. Marriage of alien women to Americans.
(1) American law. § 410.
(2) Reversion of nationality. § 411.
3. Law in other countries. § 412.
VIII. Effect of Parents' Naturalization on Infants.
1. American law. § 413.
2. Marriage of alien widow to American. § 414.
3. Adoption of children. § 415.
IX. Naturalization Internationally Ineffective as to Absent Family.
1. Married women. § 416.
2. Infants. § 417.
3. Good offices for emigration. § 418.
X. Proofs of Nationality.
1. Evidences of citizenship. § 419.
2. Proof of naturalization.
(1) The judicial record. § 420.
(2) Loss or destruction of record. § 421.
Question of fact.
Practice of Department of State.
3. Impeachment of naturalization.
(1) Rules of nuniicipal courts. § 422.
(2) Rule of international action. § 42.T
Repudiation of naturalization improperly obtained.
(3) Authority to make decision. § 424.
(4) Disposition of fraudulent certiticates. § 425.
272 NATIONALITY.
XI. Double Allegiance.
1. Foroign-born children.
(1) Act of 1855. § 420.
(2) Particular applications of principle. § 427.
2. "Native-lx)rn children.
(1) Double allegiance at birth. § 428.
(2) Change of parents' nationality. § 429.
3. Election at majority. § 430.
XII. Question of Expatriation.
1. Counnon law doctrine. § 431.
2. Judicial decisions.
(1) Prior to 1868. § 432.
(2) Since 1868. § 433.
3. Governmental doctrine.
(1) Executive declarations down to 1845. § 434.
(2) Mr. Buchanan's assertion of unqualified right. § 435.
(3) Reversion to earlier doctrine. § 436.
(4) Reassertion of unqualified right, 1857-1801. § 437.
(5) Course during Civil War. § 438.
(0) Act of 1868. § 439.
(7) Subsequent statements. § 440.
4. La:w of particular countries.
(1) China. § 441.
(2) France. § 442.
(3) Germany. § 443.
(4) Greece. § 444.
(5) Guatemala. § 445.
(6) Italy. § 446.
(7) Morocco. § 447.
(8) The Netherlands. § 448.
(9) Nicaragua. § 449.
(10) Persia. § 450.
(11) Portugal. § 451.
(12) Roumania. § 452.
(13) Russia. § 453.
(14) Servia. § 454.
(15) Spain. § 455.
(16) Switzerland.
(a) Swiss law of 1876. § 456.
(b) Diplomatic discussions. § 457.
(c) Futile conventional negotiations. § 458.
(17) Turkey.
(a) Law of 1869. § 4.59.
(b) Bureau of Nationality. § 460.
(c) Diplomatic controversies. § 461.
(d) Penalties and petitions. § 462.
(e) Expulsion cases. § 463.
(f ) Unratiflwl treaty of 1874. § 464.
(18) Venezuela. § 465.
XIII. Modes of Expatriation.
1. Acts held to effect expatriation. § 466.
2. Acts held not to effect expatriation. § 467.
3. Oaths of allegiance. § 468.
4. Military service. § 469.
§ 372.] SOURCES OF NATIONALITY. 278
XIV. Renunciation of Naturalization,
1. General principles. § 470.
2. German treaties. § 471.
3. Treaty with Ecuador. § 472.
4. Treaty with Denmark. § 473.
XV. Loss of Right to National Protection.
1. Foreign domicil.
(1) Native citizens. § 474.
(2) Natm-alized citizens. § 475.
(3) American business interests. § 476.
(4) Reasons of health. § 477.
(5) Residence in Oriental lands. § 478.
2. Office holding. § 479.
3. Taking part in politic-s. § 480.
4. I^nneutral conduct. § 481.
5. Fugitives from justice. § 482.
6. Question of matriculatioiL § 483.
XVL Seamen. § 484.
XVII. Corporations. § 485.
XVIII. Care of Indigent Citizens. § 486.
I. -b'Ot /v'C'L'/S' OF NATIOXALITY.
§372.
National character, in legal and diplomatic discussions, usually is
denoted by the term '' citizenship." In most cases this is not mis-
leading, since citizenship is the great source of national character.
It is not, however, the only source. A temporary national character
may be derived from service as a seaman, and also, in matters of bel-
ligerency, from domicil, so that there may exist between one's citizen-
ship and his national character, for certain purposes, an actual
diversity. For these reasons, in my work on International Arbitra-
tions, I gave to the chapter in which citizenship is discussed the title
" Nationality," in order that it might comprehend not only those who
may he called " citizens," but also all those who, Avhether they be
citizens or not, may be called '' nationals."
Citizenship, strictly speaking, is a term of municipal law, and do-
notes the possession within the ])articidar state of full civil and
political rights, subject to special disqualifications, such as minority
or sex. The conditions on which citizenship is acquired are regu-
lated by municipal law.
In American law the term " citizen " or '" citizenship " is used to
denote a relation to the various States as well as to the United States.
The conditions of State citizenship greatly vary in the several States,
some requiring as a prerequisite of the exercise of the elective fran-
chise the posses.sion of citizenship of the United States, while others
require only a declaration of intention to become a citizen of the
H. Doc. 551— vol 3 18
274 NATIONALITY. [§^'''2.
United States, coiiplod with sonic ((iialification of residence. Citi-
zenship of a State (U)es not. however, confer citizenship of the United
States: and it is only those who are citizens of the United States
that can l)e considered as possessing?, on the p-ound of citizenship,
American nationality. It is an anomaly, nnder the American sys-
tem, that, as the result of leaving the qualifications of electors to the
determination of the several States, a person may, if he happen to
live in a particular State, exercise the highest electoral privileges,
and by his vote potentially decide the fate of a national election,
though he is not a citizen of the United States nor clothed with
American nationality.
It is proper to call attention to the fact that the words '' citizen,"
" citizenship," " domicil," and '' expatriation," are not used, in the
extracts in the present chapter, in a uniform sense. By " citizen," a
domiciled person or even a mere resident seems sometimes to be meant ;
" domicil " is at times used in the sense of residence, not definitive, but
more or less prolonged ; while " expatriation," in some ])assages, evi-
dently signifies a change of residence or of domicil, and not a change
of home and allegiance. It is equally obvious that, by reason of these
diversities, supposed precedents have sometimes been misconceived;
and, following the course pursued in the rest of the work, I have
endeavored to correct this defect by giving, as far as possible, a sum-
mary of the facts Avith reference to which the jihrases were employed,
instead of the words alone,
" There cannot be a nation without a people. The very idea of a
political community, such as a nation is, implies an association of per-
sons for the promotion of their general welfare. Each one of the
persons associated becomes a member of the nation formed by the
association. He owes it allegiance and is entitled to its protection.
Allegiance and protection are, in this connection, reciprocal obliga-
tions. The one is a compensation for the other — allegiance for pro-
tection and protection for allegiance.
" For convenience it has been found necessary to give a name to this
membership. The object is to designate by a title the person and the
relation he bears to the nation. For this purpose the words ' subject,'
' inhabitant,' and ' citizen ' have been used, and the choice between
them is sometimes made to depend upon the form of the government.
Citizen is now more commonly employed, however, and as it has been
considered better suited to the description of one living under a
republican government, it was adopted by nearly all of the States
upon their separation from Great Britain, and was afterwards
adopted in the Articles of Confederation and in the Constitution of
th<' United States. When used in this sense it is iniderstood as con-
veying the idea of membcrshij) of a nation, and nothing more."
Walte, C. J., Minor v. Ilappcrsott. 21 Wall. W2, ACtTy-VW.
§ 372.] SOURCES OF NATIONALITY. 275
Citizens ai'f^ inembors of the political coiiiniunity to which they
belong. They are the iJeojDle who compose the community, and who,
in their associated capacity, have established or submitted themselves
to the dominion of a government for the i)romotion of their general
welfare and the protection of their individual as well as their col-
lective rights. The duty of a government to ati'ord protection is
limited always by the power it possesses for that purpose.
United States r. Cruiksluuik, 1)2 U. S. .542, 540.
The term *"■ subjects "" in the lath article of the Spanish treat}?^ of
1795, when applied to persons owing allegiance to Spain, must be
construed in the same sense as the term '' citizens '" or " inhabitants "
when applied to persons owing allegiance to the United States, and
extends to all persons domiciled in the Spanish dominions.
The Pizarro, 2 Wheat. 227.
Questions as to citizenship are determined by municipal law in
subordination to the law of nations.
Stanbery. At. Gen., 18G7, 12 Op. 319.
In the absence of proof that an alien has become a citizen of the
United States, his original status is j^resumed to continue.
Ilauensteni v. Lynhaui, 1(X» T'. S. 48?,.
A person disfranchised as a citizen by conviction for crime under
the laws of the United States can be restored to his rights as such by
a free and full pardon from the President, and such pardon may be
granted after he has suffered the other penalties incident to his con-
viction as well as before.
Black, At. Gen., 1860, 9 Op. 478.
" We have in our political system a government of the United
States and a government of each of the several States. Each one of
these governments is distinct from the others, and each has citizens of
its own who owe it allegiance, and whose rights, within its jurisdic-
tion, it must protect. The same person may be at the same time a
citizen of the United States and a citizen of a State: but his rights of
citizenship under one of these governments will Ix^ different from
those he has under the other."
Waite, C. J., United States r. Criiikshank, 92 U. S. 542, .549.
Althon^li by tlie fourteentli anuMuhncnt to the Constitution citizens of
tht' United States are declared to l>e citizens of " the States wherein
they reside." citizenship of a State ihu's not confer citizenship of tlie
United States. (lioyd r. Tliayer. 14."! U. S. 1M5: Miiuieajyolis r.
Reuni, 5(> Fed. Kep. 57tJ, U C. (,'. A. HI : United States v. Hhodes, 1
Abb. U. S. 28, 40.)
276 NATTONAI.TTY. [§ 37?..
As to the law of citizenship in various countries, the following
references may be noted :
Arsentiiie Kepublic-: For. Kol. 1882, 3.
Coloinbla : For. Kol. 1885, 204.
Costa Kica : Law of Dec. 20, 188(i, For. Hel. 1887, 95.
France: Code Napoleon, For. Kol. 187:^, 127H; Law of June 2C., •188!>.
For. Kel. 1890, 276 : Amendments of 189:3, For. Rel. 1893, 295, 303.
Germany : Law of 1870, For. Kel. 188G, 318.
Great Britain : Report of Royal Conunission. For. Rel. 1873, 1232.
Guatemala : For. Rel. 1894, 317.
Mexico: Law of May 28, 188(i, For. Rel. 1886, 053; For. Rel. 1895, 1013;
Moore, Int. Arbitrations, III. 2450-2454.
Netherlands: Law of July 1, 1893, For. Rel. 1893, 472.
Norway: For. Rel. 1888, II. 1490-1495.
Salvador : Law of Sept. 27, 1886, For. Rel. 1887, 69.
Spain: Moore, Int. Arbitrations, III. 2454.
Switzerland : For. Rel. 1876, 567 ; For. Rel. 1897, 557.
Turkey : Law of Jan. 19, 1869, For. Rel. 1893, 714.
Venezuela: Constitution, June 12, 1893, For. Rel. 1893, 731; Moore,
Int. Arbitrations, III. 245().
See, also, as to the law in many countries, Ojiinions of the Heads of the
Executive Departments, and other papers relating to Expatriation,
Naturalization, and Change of Allegiance, AVashington, 1873 ; re-
printed in For. Rel. 1873, II. 1179-1438.
II. CITIZENSHIP.
1. By Birth.
Citizenship by birth may exist (1) by reason of birth in a particular
place — i. e., jure soli, and (2) by reason of the nationality of the par-
ents-— i. e., jure sanguinis.
See Cockburn on Nationality (London, 1869), (;-14 ; Moore, Int. Arbitra-
tions, III. 2449 et seq.
(1) BY RIGHT OF PLACE.
§ 373.
" In reply to the inquiry which is made by you in the same letter
whether ' the children of forei<;n parents ho?vi in the
Common-law doc- ^v,/^^.^/ States, but brouffht to the country of which the
trine. . '. ^ . . ": . .
father is a subject, and continuing to reside within the
jurisdiction of their father's country, are entitled to protection as
citizens of the United States,' I have to ob.serve that it is presumed
that, according to the common law, any i:)erson born in the United
States, unless he b(; born in one of the foreign legations therein, ma}'
be considered a citizen thereof until he formally renounces his citi-
zenship. There is not, however, any United States statute containing
^^ 373.] CITIZENSHIP BY BIRTH. 277
a provision upon this subject, nor, so far as I am aware, has there
been any judicial decision in regard to it.""
Mr. Mairy, Sec. of State, to Mr. Mason, .June (J, 1854, MS. Inst. France,
XV. 196.
As to the status of free men of color, see opinion of Mr. Marcy, in Moore,
Int. Arbitrations, III. 2401-2462.
Children born in the United States of alien parents, who have
never been naturalized, are native citizens of the United States.
Bates, At. Gen., 1802, 10 Op. 321. See United States v. Rhodes, 1 Abb.
U. S. 28; Lynch v. Clarke, 1 Sandf. Ch. 584; Black, At. Gen., 1859,
9 Op. 873.
See connnent in Mr. Bayard, Sec. of State, to Mr. de Bounder, Belg. min.,
April 2, 1888, For. Rel. I. 48.
By Article III. of the convention with Great Britain of 1818 it was
agreed that the Oregon territory should *■' be free and open " '" to the
vessels, citizens, and subjects of the two powers ; " and this convention
was continued in force until 1846. It has been held that, during the
period of joint occupation, the country, as to British subjects therein,
was British soil, and subject to the jurisdiction of the King of Great
Britain ; that, as to citizens of the United States, it was American soil,
and subject to the jurisdiction of the United States; and that a child
born in the territory in 1823 of British subjects, was born in the
allegiance of the King of Great Britain, and not in that of the United
States.
McKay i'. Campbell, 2 Sawyer, 118.
"All persons born in the United States and not subject to any
foreign power, excluding Indians not taxed, are
ig s c . (](.(.iai.tif[ to be citizens of the United States."
Rev. Stats.. § 1992 ; sec. 1, Civil Rights Act. April 9. 1800. 14 Stat. 27.
As to pei'sons of African descent, previously, see Mr. Marcy. Sec. of State,
to Mr. Barry, consul at Matamoras. .Ian. 8. 18.">5. 20 MS. Desf). to
consuls, 109; 2 MS. Op. Mex. Com. (]8()8) 293. case of Matthieu.
"All persons born or naturalized in the United States, and subject
Fourteenth amend- ^" ^^^^ jurisdiction thereof, are citizens of tlie Unitetl
ment. States and of the State wherein they reside."
Fourteenth Amendment to the Constitution of the United States, pro-
posed to the States June 1(!, 18()(>, declared ratified by concurrent
resolution of July 21, 18(J8. promulgated July 20 and July 28. 1S(>8.
(Mr. Bayard, Sec. of State, to Mr. de Bounder. Belg. min.. .\i»ril 2.
1888, For. Rel. 1888. I. 48.)
See Polit. Science Quarterly. V. 104; Doc. Hist. Constit II. 783. 788.
That American Indians, living in tribal relations, are not " subject to
the jurisdiction " of the United States, in the sense of the 14th
ameudmeut, see McKay v. Campbell, 2 Sawyer, 119; Karrahoo v.
278 NATIONALITY. [§ 373.
Ailanis. 1 Dillon, Mi; Kx parte Reynolds. 18 Alb. li. .J. 8; 15 Am.
Law Uev. 21: .Jackson r. United States. lH Ct. CI. 441: O'Brien r.
Bii«i>ee, 4«; Kan. 1 : Elk r. Wilkins. 112 V. S. i>4.
As to who are Indians, see In re Caniille, (> Sawyer, .">41 : Alberty v.
United States, 1(;2 U. S. 40J) ; United State.s r. Ward. 42 Fed. Rep.
;{2(>: miners r. Quinney, 51 Wis. (52.
As to the status of the Alaskan Indians under the modus vivendi of Oct.
20, 1891), see Mr. Adee, Act. Sec. of State, to Mr. French, Aug. 27,
IIXK), 247 MS. Dom. Let. 3.55. For the modus vivendi, see supra, § 107.
See an article on Natural-born citizens of the United States, and
EliKil'ility for the office of President, by Alex. Porter Morse, in GG
Albany Law Journal (April, 1904) 99.
" It results from inquiry that John Peter Harboro was born in
Phihidelphia, November 17, 1852, and that his father
Variant construe- ^y.j^^ j^q^ naturalized until November G, 18G0. The
tions. . .
14th amendment to the Constitution declares that
' all persons born or naturalized in the United States and subject to
the jurisdiction thereof, are citizens of the United States,'
" This is simply an affirmance of the common law of England and
of this country, so far as it asserts the status of citizenship to be fixed
by the place of nativity, irrespective of parentage. The qualification,
' and subject to the jurisdiction thereof,' was probably intended to
exclude the children of foreign ministers, and of other persons who
may be within our territory with rights of extraterritoriality. It is,
indeed, possible to read the language as meaning while or when they
are subject to the jurisdiction of the United States, but this would de-
nationalize all citizens, native or naturalized, the moment they entered
a foreign jurisdiction. A contemporaneous exposition of this amend-
meut was given by the 3d section of the act of Congress of July 27,
18()8 (ISStat. 224)."
Mr. Fish, Sec. of State, to Mr. Marsh, May 19, 1871, MS. Inst. Italy, I. .350.
See, to the same effect, Mr. Fish. Sec. of State, to Mr. Ellis. April 14,
1873, 98 MS. Dom. Let. .385: to Mr. Van Horn, .Tune 13. 187.3, 102 MS.
Dom. I.,et. 437.
See, however. Mr. Evarts, Sec. of State, to Mr. Willins, March 14, 1879,
127 MS. Dom. Let 178, and Mr. F. W. Seward, Act. Sec. of State, to
Mr. Fish, Auj?. 20, 1878, MS. Inst. Switz. I. 4.59, in both of which
uncei'tainty is indicated as to the construction to be given to the
meaning of the phrase " subject to the jurisdiction thereof."
Ludwig ITausding was born in the United States, but during in-
fancy was removed by his father, who was a Saxon subject, to Saxony,
where he ever afterwards remained. The father subsequently be-
came a citizen of the United States by naturalization. In 1884
Ludwig applied to the American legation in Berlin for a passport,
but the legation refused to gi-ant it on the groinid that lie was born
of Saxon subjects, who were only temporarily in the United States,
§ 373.] CITIZENSHIP BY BIRTH. 279
and was never " dwelling in the United States.*"' either at the time of
or since his parent's naturalization, and was not naturalized by force
of section 2172, Revised Statutes. AVith reference to this decision the
Department of State said : " Not being naturalized by force of the
statute, Ludwig Hausding could only assert citizenshij) on the ground
of birth in the United States; but this claim would, if presented, be
untenable, for by section 1992, Revised Statutes, it is made a condition
of citizenship by birth that the person be not subject to any foreign
power. . . . Sections 1992 and 1993 of the Revised Statutes clearly
show the extent of existing legislation: That the fact of birth, under
circumstances implying alien subjection, establishes of itself no right
of citizenship; and that the citizenship of a person so born is to be
acquired in some legitimate manner through the operation of statute."
Mr. Frelingbuyseii, Sec. of Stnte, to Mr. Kussou, iiiiu. to Geruuiny. Jan. !.">,
1885, For. Kel. 1885, 394.
A youth applied to the American legation in Berne, Switzerland,
in 1885, for a passport as a citizen of the United States. He was
born in New York September 7, 18()(), and was described as the
illegitimate son of a widow originally from Switzerland, who ap-
peared to have been residing in New York at the time of his birth.
AVhether her late husband was a citizen of the United States was un-
certain, but when she returned to Switzerland, four years after her
illegitimate son's birth, she obtained a passport from the American
legation as a citizen of the United States. She resided in Switzerland
till her death, and her son had also continued to live there up to the
time of his application for a passport. The Department of State said
that he was " so far a citizen of the United States '' that he might,
on reaching his majority, "■ elect which nationality he will adliere to,
the United States or Switzerland,'' and that he was meanwhile to
be considered as an American citizen residing in Switzerland, enti-
tled to the protection of the United States and consequently to a
passport.
Mr. Frelinghuysen, Sec. of State, to Mr. ("raiuer. niiii. to Switzerland.
Feb. 13, 1885, For. Uel. 1885, 7!>4.
No iiKjuiry seems to have been made in tbis case as to wbetber tbis ille-
gitimate child, born in the United States, was. under the circum-
stances stated, in any sense a citizen of Switzerland under the laws
(»f that country.
Richard Greisser was born in the United States in 1809. His
father, a German subject, came to America in 1867, and in 1868
married there a Swiss lady, but in 1870, without having become a
citizen of the United States or declared his intention to do so,
returned to Germany, taking with him his wife and child. The
280 NATIONALITY. [§ 373.
Department of State said : " Richard Groisser was no doubt born in
the Ignited States, but he was on his birth ' subject to a foreign
power' and 'not subject to the jurisdiction of the United States.'
He was not, therefore, under the statute [act of 1860, R. S. § 1992]
and the Constitution | XlVth Amen(hnent | a citizen of the United
States by birth; and it is not pretended that he has any other title
to citizenship,"
Mr. Bayard, See. of State, to Mr. Winehester, rain, to Switzerland,
Nov. 28, ism. For. Kel. 188.5. 814, 81.'). See, also, p. 81.3.
A child l)orn in the United States, whose parents, though of Chi-
nese descent and subjects of the Emperor of China,
Decision of Supreme -i • ^^ i • J.^ tt 'i. i Oi. j. • 'j.* n i-u
„ ^ are domiciled in the United States, is a citizen ot the
Court. . ....
United States by birth, within the meaning of the
Fourteenth Amendment.
United States v. Wong Kim Ark (1898), 169 U. S. 649.
For a review of the prior judicial dicta, to the effect that the phrase
" subject to the jurisdiction thereof " included not only the
children of diplomatic agents, but also children who bore a foreign
allegiance jure .sanguinis, see Moore's Am. Notes, Dicey's Conflict
of Laws, 201. In the case of In re Look Tin Sing, 21 Fed. Re]>.
905, however, it was held that a child born in the United States to
alien Chinese parents, who could not themselves become naturalizcnl.
was nevertheless a citizen by birth ; and, if this were so, the child
born of parents who were subject to no disability would a fortiori
be a citizen. The decision of the Supreme Court in the ca.se of
Wong Kim Ark, affirming the principle laid down in the ca.se of
Look Tin Sing, authoritatively settles the question as to the children
of domiciled aliens.
See, also. Gee Fonk Sing r. United States, 49 Fed. Rep. 146; Benny v.
O'Brien (N. J.), 32 Atl. 696; Ex parte Ching King, 35 Fed. Rep. 354;
Mr. Wharton, Act. Sec! of State, to Mr. Johnson, July 24, 1891, 182
MS. Dom. Let. 583; Mr. Gresham, Sec. of State, to Mr. Runyon,
ami), to Germany, April 19, 1895, For. Rel. 1895, I. 5.36; Mr. Day,
Sec. of State, to Mr. Denby, min. to China, May 26, 1898, For. Rel.
1898, 203.
The laws restricting the inunigration of Chinese are inapplicable to
ixjrsons of Chinese descent who are, by birth in the United States,
citizens thereof. (86 Fed. Rep. 558.) See, however, infra, § .570.
In a memorandum of April 16, 1901, the Imperial German em-
bassy drew attention to a decision of the Treasury Department of
February 28, 1899, which seemed to be in conflict with the previous
determinations of the Department of State, of the Attorney-General,
and of the Supreme Court. By this decision it was held that a child
born in the United States of unnaturalized aliens and taken abroad
by its father should, upon his return to the United States, be con-
§ 373.] CITIZENSHIP BY BIRTH. 281
sidered an alien immigrant. In a memorandum of May 27, 1901,
the Department of State replied that the decision of the Treasury
Department had been overruled by the district court of the United
States for the southern district of New York, which decided that
the two American-born children of certain Italians were, as citizens
of the United States, entitled to admission into the country. It was
added that the Secretary of the Treasury had accepted the decision of
the court as binding upon his Department.
For. Rel., 1901, 175, citing 9.S Fed. Rep. 059. For the Treasury Depart-
ment's prior opinion see decision No. 20747, Feb. 28, 1899.
Jules Michot applied to the legation of the United States at Berne
for a passport. While it was declared in his appli-
0 a oun - ^j^^JQj-^ ^i^^j- Y\Q was a native citizen of the United
Img.
States, born in the city of Philadelphia, it was also
stated that he knew nothing of his origin except what was set forth
in the petition presented by his adopted mother, Rosalia Michot,
to the court of common pleas No. 3, in Philadelphia, for his adoption,
which was duly granted. The petitioner swore that the child was
left with her near Philadelphia wdien it was about three months old,
and that she knew nothing of its parentage or place of birth.
Michot thought that the woman was really his mother, but of this
there was no evidence, except that of filial association with her.
But on the strength of " the presumption that the child was born
in the country where its existence first became known,'' it was held
that upon the circumstances set forth the applicant was entitled to
be treated as a native citizen of the United States and to receive a
passport accordingly.
Mr. Hay, Sec. of State, to Mr. Leishman, min. to Switzerland, July 12,
1899, For. Rel. 1899, 7G0.
" The complainants are both citizens of France. The fact that
one of them was born in Peking, China, does not
Children of dipio- change his citizenship. His father was a Frenchman,
and by the law of France a child of a Frenchman,
though born in a foreign country, retains the citizenship of his
father. In this case, also, his father was engaged, at the time of the
son's birth, in the diplomatic service of France, being its minister
plenipotentiary to China, and by public law the children of am-
bassadors and ministers accredited to another country retain the
citizenship of their father."
Geofroy v. Riggs (1890), 13.3 U. S. 258, 204.
Mr. Mazel was born in the United States Sept. 17, 18^0. His
father was then Dutch minister at Washington and had married an
282 NATIONALITY. [§ 374.
Amorican woman. In 1871 the family ivmovod to Europe, and
afterwards resided at various capitals, where the father served in a
diplomatic capacity. In 1891 the sou desired to come to the United
States and exercise the privileges of citizenship. The Department
of State expressed the opinion that he could do so only after bein^
natiu'alized, since a child born in the United States to a diplomatic
officer was not "subject to the jurisdiction thereof" in the sense of
the Fourteenth Amendment.
Mr. Wharton. Act. Sec. of State, to Mr. Grant, niin. to Aust-Hung.. Aug.
10, 18«J1, For. Rel. 1891, 21.
(2) BY RIGHT OF BLOOD.
§ 374.
By section 1903 of the Revised Statutes of the United States,
incorporating the provisions of the act of February 10, 1855, "All
children heretofore born or hereafter born out of the limits and juris-
diction of the United States, whose fathers were or may be at the time
of their birth citizens thereof, are declared to be citizens of the United
States; but the rights of citizenship shall not descend to children
whose fathers never resided in the United States."
See Ludlam r. Ludlani, 20 N. Y. .3,50; Albany r. Derby. W Vt. 718;
Ware v. Wisner, 50 Fed. Rep. .310.
Children born abroad of persons once citizens of the United States,
but who have become citizens or subjects of a foreign power, are not
citizens of the United States, nor entitled to protection as such.
Williams. At. Gen., 1873, 14 Op. 295.
" The fourteenth amendment to the Constitution declares that —
" 'All persons born or naturalized in the United States, and subject
lo the jurisdiction thereof, are citizens of the United States.' . . .
" It is provided by the act of 1855 (10 Stat, at Large, p. 004) that
persons born out of the limits and jurisdiction of the United States,
whose fathers at the time of their birth are citizens of the United
States, shall be deemed and considered to be citizens of the United
States, provided that the right of citizenship shall not descend to per-
sons whose fathers never resided in the United States.
" I will presently refer to this proviso.
" Within the sovereignty and jurisdiction of the United States the
persons contemplated by the act are entitled to all the privileges of
citizenship; but while the United States may by law fix or declare the
conditions constituting citizenship within its own territorial jurisdic-
tion, and may confer the rights of American citizenship everywhere
upon persons who are not rightfully subject to the authority of any
§ 374.] CITIZENSHIP BY BIRTH. 283
foreign coiintrv or goverjiiuent, it may be safely assumed that Con-
;;^ress did not contemplate the conferring of the full rights of citizen-
ship upon the subject of a foreign nation who had not come within
our territory, so as to interfere with the just rights of such nation to
the government and control of its own subjects.
" It is a well-established principle of public law that the municipal
laws of a state have no etfect within the limits of another power,
beyond such as the latter may think proper to concede to them.
" No foreign state can by its municipal legislation release from his
obligation to the United States a person born within its territory and.
its jurisdiction who has continued from his birth to reside therein;
and while he resides therein, and if, by the laws of the country of their
birth, children of American citizens born in such country are subjects
of its government, the legislation of the United States should not be
construed so as to interfere wdth the allegiance which they owe to the
country of their birth while they continue within its territory, or until
they shall have relieved themselves of that allegiance and have as-
sumed their rights of American citizenship, in conformity with the
laws and Constitution of the country, and have brought themselves
personally wdthin its jurisdiction.
" I have above referred to the proviso to the act of 1855. It is evi-
dent from this that the law-making power not only had in view the
limit (above referred to) to the efficiency of municipal law in foreign
jurisdiction, but intended that a distinction be observed between the
right of citizenship, declared by the act of 1855, and the full citizen-
ship of persons born within the territory and jurisdiction of the
United States, for those declared to be citizens by the act could not
transmit citizenship to their children without having become resi-
dents within the United States; the heritable blood of citizenship
was thus associated unmistakably with residence within the country,
which was thus recognized as essential to full citizenship.
" The provisions of the fourteenth amendment of the Constitution
iiave been considered. This amendment is not only of more recent
date. l)ut is a higher authority than the act of Congress referred to,
and if there be any contiict Ix'tween them, or any difference, the Con-
stitution must control, and that makes the subjection of the person of
rhe individual to the jurisdiction of the (Jovernment a reijuisite of
citizenship.
" It does not necessarily follow from this that the children of Amer-
ican parents born abroad nuiy not have the rights of inheritance, and
of succession to estates, although they may not reside within or ever
come within the jurisdiction of the United States. That question is
not within the present consideration."
Mr. Fish. Sec. of State, to Mr. Wiishburiie, luiii. lo France. .Tune '2H, 187.3,
For. Rel. 1873. I. 2r)().
284 NATIONALITY. [§ 374.
" Your lottor in ropird to the possibility of a claim on the part of
the French (lovernnient to exact military service of your son, Caspar
Schuyh'r Crowninshield, on the ground of his birth in P'' ranee and
personal residence there, has been received.
" The clause of the P^rench law of nationality which the secretary
of embassy seems to suppose applicable to your son's case (article 8)
reads as follows : ' These are French ...
"4. Any person born in France of foreign parents and who at the time of
his majority is domiciled in France, unless within the year following such
majority, as fixed by French law, he has declined French nationality and proved
that he has retaineti the nationality of his parents by means of an attestation
in due form from his Government, which attestation shall remain attached to
his declaration, and by producing, besides, if there is occasion to do so, a cer-
tificate showing that he has complied with the call to perform military service
in accordance with the military laws of his country.
" This provision appears to concern those persons who, being born
in France of foreign parents, continue to dwell there during minority,
and treating them as invested with a dual status, gives them one year
after attaining majority within w^hich to elect either French nation-
ality or that of their parents. It does not appear to affect those^
who, like A^our son, have been removed from France soon after birth
and thereafter dwell and come of age in the country of their parents'
allegiance. Your son, born at Nice, June 1, 1871, was taken thence
by his parents a few weeks later, July 4, 1871, and never returned to
France until last October, when, being over 23 years of age, he went
to Paris as an art student.
" No claim to your son's military service appears to have been made
by the French authorities, but a copy of your letter and of this reply
will be sent to the United States ambassador at Paris, and Mr. Eustis
will he instructed that, in the event of any such claim, this Govern-
ment would hold that your son, being born a citizen of the United
States, under our laws has conserved his status and perfected it, as
against any conflicting claim on the part of France, by continuous
domicil in the United States during minority and entrance upon all
the rights of American citizenship on attaining majority.
" Without discussing the hypothetical question whether, in such a
case, option and declaration are required in France within the year
after attaining majority, it is clear that the year having elapsed
without your son having been within French jurisdiction no retro-
active declaration can now be demanded of him. He is to be regarded
as having precisely the same status in France as any other adult
citizen of the United States visiting that country; and Mr. Eustis
will be instructed to attest the fact of such citizenship by the issuance
of a passport to him on the usual evidence of right thereto."
§ 374.] CITIZENSHIP BY BIRTH. 285
Mr. Greshaiu, Sec. of State, to Captain Crbwninshiekl, U. S. N., Feb. 23,
1895, For. Rel. 1895, I. 420.
As stated in bis letter. Captain Crowninshield, at tbe time of bis son's
birth, was serving on a U. S. inan-of-war and bis wife was residing
temporarily at Nice.
See, as to another case of a child born to American parents temixjrarily
abroad, Mr. Hill, Act. Sec. of State, to Mr. White, No. 1210, June 14,
1901, MS. Inst. Germany, XXI. 298.
T., a native of Germany, was naturalized in the United States in
1887. In 1889, while on » visit with his wife to Germany, a son was
born to him. The child was soon afterwards brought to the United
States. In 1901 T., who contemplated sending his son to Germany
for purposes of study, sought the interposition of the United States
in order that he might be assured that the American citizenship of
his son would be recognized by the German Government. The Ger-
man foreign office stated that there was nothing to prevent the
American citizen in question from making a prolonged stay in
Germany.
For. Rel. 1901, 179.
A person born on board of a United States vessel, of parents who
are citizens of the United States, but who are, at the time, in a foreign
country, not with the design of removing thither, but only having
touched there in the course of a voyage which the father has made as
captain of the vessel, is to be regarded as a citizen of the United
States.
United States v. Gordon, 5 Blatch. 18.
Under § 1993 nationality is not inherited through women; and an
illegitimate child born abroad to an American
egi imacy. ^yoniau is not a citizen of the United States.
Opinion of Mr. Lowndes, for the Commission. United States and Span.
Claims Com. (1871), Moore, Int. Arbitrations. III. 24(52 ; Mr. Whar-
ton, Assist. Sec. of State, to Mr. Lewis, Dec. 24, 1891, 184 MS. Dom.
Let. 497.
July 30, 1901, the Swiss legation at Washington made an inquiry as
to the nationalit}' of Louis Rover, who was born out of wedlock in
France, in 1888, his father being Leon Jean Rover, a native citizen
of the United States, and his mother a French wonuin. The parents
were married in 1891, in London, but tliev afterwards separated, the
child being left with the mother. The legation inquired Avhether
by the laws of Nev/ York he was legitimatized by the marriage of
his parents and had thus become an American citizen. The Depart-
ment of State replied:
286 NATIONALITY. [§ 374.
" The attornov-jjcncral of the vStatc of New Yoi'k, under date of
the IGtli instant, declares it to be liis opinion that by section 18
of the domestic regulations law of the State of New York, chapter
'J72 of the laws of 1890, as amended by chai)ter 7*25 of the laws of
181)9, ' an illegitimate child, whose parents have m)t heretofore inter-
married or shall hereafter intermarry, shall thereby become legitima-
tized and shall become legitimate for all purj)oses, entitled to all the
rights and ])rivileges of a legitimate child ; but an estate or an interest
vested or trust created before the marriage of a parent of such child
shall not be divested or affected bv reason of such child being legiti-
matized.'
" Section 1993 of the Revised Statutes of the United States provides
that ' all children heretofore or hereafter born out of the limits and
jurisdiction of the United States whose fathers were or may be at the
time of their birth citizens thereof are declared to be citizens of the
United States ; but the rights of citizenship shall not descend to chil-
dren whose fathers have never resided in the United States,' and sec-
tion 1992 declares all persons born in the United States and not sub-
ject to any foreign power, excluding Indians not taxed, to be citizens
of the United States.
" Assuming that the father of Louis Rover, Leon Jean Rover, who
was born in New York, had never renounced his American citizenship
acquired by his birth, it is the opinion of the Department that Louis
Rover, born in France in 1888 of a French mother, became a citizen
of the United States by the subsequent marriage of his parents in
1891, in pursuance of section 18 of the domestic relations law of New
York, cited at the beginning of this note."
Mr; Hay, Sec. of State to Mr. Lardy, Swiss charge, Aug. 23, 1901, For.
Rel. 1901, 512.
In the case of a person born in China whose father was a citizen of
the United States and whose mother was a Chinese woman, it was
held that as the " father was an American citizen the nationality of
his mother previous to marriage would make no difference in the son's
nationality, provided he was legitimate, unless the father was a citizen
of one of the States which prohibit marriage with Chinese, of which
there is no allegation in the present instance."
Mr. Bayard, Sec. of State, to Mr. Smithers, chargt^ at Peking, May 4,
1885, For. Rel. 1885, 171.
Accompanying tliis instruction tliere is an opinion of Dr. Francis Whar-
ton, law officer of the Department of State, dated April 29, 188.5. As
the facts were reported to the Dei)artnient of State it was not clear
whether the son was lx»rn in wedlock. On this question a further
Investigation was dire<'t(Hl to he made, hut it was remarked hy Dr.
Wharton in his rejK)rt that " the rule of law undouhtedly is that, in
doul)tful cases, the presumption in favor of legitimacy is to control."
(For. Rel. 1885, 172.)
§ 374,] CITIZENSHIP BY BIRTH, 287
Half-castes born in Samoa, of American fathers by Samoan women,
with whom the fathers lived " fa 'a Samoa," are not citizens of the
United States.
Mr, Rives, Assist. Sec. of State, to Mr. SewjiU. consul-general at Apia,
April 2(J, 1888, S. Ex. Doc, 31, 50 Cong. 2 sess. 55, 125 MS. Inst. Con-
suls, 118 ; supra, § 234.
Mr. F. W. Seward, in reply to a question as to tlie nationality of Sauioan
half-castes, born of American fathers and native mothers, gave an
answer based on the assumption that S1993 applied to such offspring
and that they had a double Uiitionality. It seems, however, that his
attention was not drawn to the nature of the I'elatious between the
parents In such cases, nor was anything said by him on the subject.
(Mr. F. W. Sewai'd, Assist. Sec. of State, to Mr. Coe, connnercial
agent at Apia, Feb. 11. 18(>7, 45 MS. Desp. to Consuls, 03.)
See Mr. Adee, Act. Sec. of State, to Mrs. Forsayth, Oct. 25, 1890, 179 MS.
Dom. Let. 497.
" The law officers have . . . reported with reference to inquiries
made ... by certain half-castes residing in Fiji, as to the pro-
tection which could be granted to them on account of their British
origin, in connection with the establishment of a de facto government,
that the half-castes in question appear to be illegitimate children of
Fiji women, and to have been born in Fijian territory, and that, con-
sequently, their nationality is not British, and that they are not
entitled to British protection,"
Circular of Lord Kimberley to the governors of Australian colonies, Aug.
14, 1872, Blue Book, C. 983, April, 1874, pp. 22, 23.
As has been seen, by § 1993 the children of fathers who never
Continuous nation- I'^^ided in the United States are not American
aiity. citizens,
Mr. Adee, Act. Sec. of State, to Mr. Torres, No. 141, Sept. 25. 1893, MS.
Inst. Hayti, III. 34G.
" The Department recently made a careful and thorough exami-
nation of the question of the status of citizens of the United States
who are members of continuous connnunities of American nation-
ality existing in Turkey for business or religious i)uri)()ses, . , .
"(1) Persons who are meuibers in Turkey of a counnunity of citi-
zens of the United States, of the character above described, do not
lose their domicil of origin, no matter how long they remain in
Turkey, i)rovi(led that they remain as citizens of the United States,
availing themselves of the extraterritorial rights given by Turkey
to such coninnmities, and not merging themselves in any way in
Turkish domicil or nationality.
"(2) The American domicil they thus retain they impart to their
descendants, so long as such descendants form ])art of such dis-
tinctive American connnunities, subject to the above proviso.
288 NATIONALITY. [§ 374.
"(3) Section 11)5)3 of tlu« Revised Statutes, providing that 'the
rights of citizenship shall not descend to children whose fathers
never resided in the United States,' does not apply to the descend-
ants of citizens of the United States, inenilx'rs of such communities.
Such descendants are to be regarded, through their inherited extra-
territorial rights recognized by Turkey herself, as born and continu-
ing in the jurisdiction of the United States. That this is the con-
i-'truction to be given to section 4125 of the Revised Statutes, coupled
with our treaty of 1830 with Turkey, is fully shown by the above-
mentioned instruction of April 20, 1887, to which I again refer as
binding you in this relation."
Mr. Porter, Act. Sec. of State, to Mr. Emmet, consul at Smyrna, Aug. 9,
1837, For. Rel. 1887, 1125; approved in Mr. Bayard. Sec. of State,
to Mr. Straus, min. to Turkey, Aug. 11, 1887, For. Kel. 1887,
1120-1125.
For the instruction of April 20, 1887, see For. Rel. 1887, 1094; and infra,
§ 870.
See Mr. Porter, Act. Sec. of State, to Mr. Emmet, No. 14, March 30, 1887,
120 MS. Inst. Consuls, 638.
" I have now to add that the Department considers as citizens of
the United States all non-Mahometans descended from citizens of
the United States (not naturalized Turks) whose parents or prior
ancestors settled in Turkey for religious or business purposes, and
who themselves remain non-Mahometans, retain and proclaim their
American nationality, and are recognized by Turkish authorities as
citizens of the United States."
Mr. Rives, Assist. Sec. of State, to Mr. Emmet, No. 30, Jan. 11, 1888, 123
MS. Inst. Consuls, 584.
" The purpose of this statute [§ 1993] was to define and limit the
rights of citizenship of children of citizens of the United States
born out of the limits and jurisdiction thereof, in order that such
rights might not be abused. It is, however, believed that the limi-
tations of the act do not apply to a country like Samoa, where citi-
zens of the United States, although beyond the limits thereof, are
not outside of its jurisdiction, but subject thereto under express
conventional provisions. As citizens of the United States in such a
country are expressly exempt from the o[x>rati()n of the local laws
and are answerable only to the laws of their own country, no con-
flict of laws can arise, and registration in the United States consu-
late may be regarded as sufficient election of American citizenship.
" Of course there is nothing in the laws of the United States to
prevent a citizen of the United States from expatriating himself
and assuming allegiance to any government of which he may desire
to become a citizen, and should it appear in any case that a citizen
§§375,370.] NATURALIZATION: REVOLUTION. 289
of the United States, who had been under your protection, had
expatriated himself, you would decline further to treat him as an
American citizen."
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-geueral at Apia
No. 28, Jan. G, 1888, 123 MS. lust. Consuls, 532.
2. By Naturalization.
§ 375.
Citizenship may be acquired after birth by naturalization. So, also,
nationality may be changed, as the result of a shifting of sovereignty,
without the acquisition of full rights of citizenship in the sense of the
municipal law of the new sovereign. Again, in this sense, nation-
ality and citizenship are not necessarily coextensive terms. A sepa-
rate place will therefore be here given to naturalization, as affecting
both nationality and citizenship.
3. By Revolution.
§ 376.
On the execution of the treaty of 1783, acknowledging the inde-
pendence of the United States, all persons, whether born in the United
States or otherwise, who adhered to the United States, were absolved
from their allegiance to Great Britain, while those who adhered to
Great Britain were British subjects.
Mcllvaine v. Coxe's Lessee, 4 Crancli, 209.
See, also, Dawson v. Godfrey, 4 Cranch, 321 ; Fairfax v. Hunter. 7 Cranch,
603; Blight v. Rochester, 7 Wheat. 535; Contee r. Godfrey, 1 Cranch
C. C. 479.
By an act of the 4th of October, 1770, the State of \ew Jersey
asserted its right to the allegiance of all persons born and then resid-
ing within the territory of the State. Therefore, one who was born
there, and continued to reside there till 1777, was a citizen of the State;
i;iid his leaving the State afterwards, and actually adhering to the
; ide of the Crown, did not render him an alien, nor did the treaty of
l)eace of 1783 have that effect.
Mcllvaine v. Coxe's Lessee, 4 Cranch, 209.
" But it is Insisted that the treaty of peace, operating upon his condition at
that time, or afterwards, he became an aliew to the State of Now Jer-
sey in coiise<iuence of his election then made to become a subject of
the King, and his snl)sc(iuent condui-t confirming that election. In
vain have we searched that instrument for some clause or expression
which, by any implication, could work this effect. It contains an
acknowledgment of the independence and sovereignty of the United
H. Doc. 551— vol 3 19
290 NATIONALITY. [§ '^'^^'•
States ill tlioir pnlitical capacitios. and a rolinquishinont on tlio part
of His ISritaiinic Majosty of all claiui to the Kovcriiiuciit, jiroprirty
and territorial rifilits of the saino. Those concossions aniountod, no
doubt, to a formal ronuiK-iation of all claim to the alloKiance of the
citl/.ens of the TTiiited States. But the (luestion who were at that
IKM-iod citizens of the UnittHl States is not decidetl, or in the slijjhtest
degree allude<l to, in this instrument ; it was left necessarily to
depend upon the laws of the respective States, who, in their sover-
eign capacities, had acted authoritatively iipcm the subject. It left
all such i)ersons in the situations it found them, neither making those
citizens who had, by the laws of any of the States, been declared
aliens, nor releasing from their allegiance any who had become, and
were claimed as, citizens. It repeals no laws of any of the States
which were then in force and operating upon this subject, hut, on
the contrary, it recognizes their validity by stipulating that Congress
should recommend to the States the reconsideration of such of them
as had worked contiscations. If the laws relating to this subject
were, at that period, in the language of one of the counsel, tempo-
rary and funetl officio, they cei'tainly were not rendered so by the
terms of the treaty nor by the political situation of the two nations,
in consequence of it. A contrary doctrine is not only inconsistent
with the sovereignties of the States, anterior to and independent of
the treaty, but its indiscriminate adoption might be productive of
more mischief than it is possible for us to foresee.
" If, then, at the period of the treaty, the laws of New Jersey, which
had made Daniel Coxe a subject of that State, were in full force, and
were not repealed or in any manner affected by that instrument; if
by force o£ these laws he was incapable of throwing off his allegiance
to the State and derived no right to do so by virtue of the treaty,
it follows that he still retains the capacity, which he i)ossessed before
the treaty, to take lands by descent in New Jersey, and, consequently,
that the lessor of the plaintiff is entitled to recover." (Gushing, J., in
Mcllvaiue v. Coxe's Lessee, 4 Crauch, 214, 215.)
Persons born in the colonies before the Declaration of Independ-
ence had a right to elect whether they would retain their native
allegiance to the British Crown or would become citizens of one of
the several States. The rule as to the point of time at which Ameri-
cans, born before the Declaration of Independence, ceased to be
British subjects differed in England and in the United States,
England taking the treaty of peace in 1783; the United States, the
date of the Declaration. It was not necessary that the election
should have been manifested by any act prior to, or on or about, the
4th of July, 1T7G. Persons remaining here after that day were, prima
facie, to be deemed American citizens, but this presumption was sub-
ject to rebuttal by showing adhesion to the British Crown during the
struggle.
Inglis V. Trustees, 3 Pet. 99.
See the case of Andrew Allen, IVToore. Int. Arbitrations, I. 290.
§ 376.] EFFECT OF REVOLUTION. 291
A resident of New York, who, independently of any act of the
legislature of the State which might affect his status, had elected to
be an alien, was not made a citizen of the State by the resolution of
the convention of New York of the lOth of July, 1770, " that all
persons abiding within the State of New York, and deriving protec-
tion from the laws of the same, owe allegiance to the said laws, and
are members of the State ;" he being then within the British lines and
under the protection of the British army, manifesting a full deter-
mination to continue a British subject. But if he had ever owed any
allegiance to the State, it was held that he Avould have been released
from it by a. subsequent bill of attainder by which he was declared to
be forever banished from the State, and adjudged guilty of treason
should he be found therein.
Inglis V. Trustees. 3 Pet. 99.
See, as to the case of Bishop Inglis, before the commission under Art, VI.
of the Jay Treaty, Moore, Int. Arbitrations, I. 288.
An infant who was born in America before the Declaration of
Independence and resided in New York with his father, a British
partisan, during the subsequent conflict, and went with him to,
England shortly before the evacuation of the city by the British in
November, 1783, and never returned, must be deemed to have followed
the condition of his father and to have adhered to the Crown.
Inglis V. Trustees, 3 Pet. 99.
" The doctrine of perpetual allegiance is not applied by the British
courts to the American ante nati. This is fully sliown by the late case
of Doe V. Acklam, 2 Barn. & Cresw. 779. Chief Justice Abbott says:
' James Ludlow, the father of Frances May, the lessor of the plaintiff,
was undoubtedly born a subject of Great Britain. lie was born in a
part of America which was at the time of his birth a British colony,
and parcel of the dominions of the Crown of Great Britain ; but, upon
the fact found, we are of oi)inion that he was not a subject of the
Crown of Great Britain at the time of the birth of his daughter. She
was born after the independence of the colonies was recognized by the
Crown of Great Britain, after the colonies had become United States,
and their inhabitants generally citizens of those States. And her
father, by his continued residence in those States manifestly became
11 citizen of them.' He considered the treaty of peace as a release
from their allegiance of all British subjects who remained there.
A declaration, says he, that a state shall be free, sovereign, and inde-
pendent, is a declaration that the i)eo[)le composing the state shall
no longer be considered as subjects of the sovereign bv whom such
a declaration is made. And this court, in the case of Blight's Lessee
V. Rochester, 7 Wheat. 544, adopted the same rule with respect to the
292 NATIONALITY. [§ 376.
right of British subjects here : That although l)orn l^efore the Revolu-
tion, they are equally incapable with those boru subsetjuent to that
event of inheriting or transmitting the inheritance of lands in this
country. The British doctrine, therefore, is that the American ante
7iaff, by remaining in America after the treaty of peace, lost their
character of British subjects. And our doctrine is, that by withdraw-
ing from this country and adhering to the British Government, they
lost, or, perhaps more praperly speaking, never acquired, the charac-
ter of American citizens.
" This right of election must necessarily exist in all revolutions like
ours, and is so Avell established by adjudged cases that it is entirely
unnecessary to enter into an examination of the authorities. The only
difficulty that can arise is to determine the time when the election
should have been made. Vattel, b. 1, c. 3, § 33; 1 Dall. 58; 2 Dall.
234 ; 20 Johns. 332 ; 2 Mass. 179, 236, 244, n. ; 2 Pickering, 394 ; 2
Kent's Com. 49.
" I am not aware of any case in the American courts where this
right of election was denied, except that of Ainsley -v. Martin, 9
Mass. 454. Chief Justice Parsons does there seem to recognize and
apply the doctrine of perpetual allegiance in its fullest extent. He
then declares that a person born in Massachusetts, and wdio, before
the 4th of July, 1776, withdrew into the British dominions and never
since returned into the United States was not an alien ; that his alle-
giance to the King of Great Britain was founded on his birth within
his dominions, and that that allegiance accrued to the Commonwealth
of Massachusetts as his law^f ul successor. But he adds wdiat may take
the present case even out of his rule : ' It not being alleged,' says he,
' that the demandant has been expatriated by virtue of any statute or
any judgment of law.' But the doctrine laid down in this case is cer-
tainly not that which prevailed in the supreme judicial court of Mas-
sachusetts both before and since that decision, as will appear by the
cases above referred to of Gardner r\ Ward, 2 Mass. 224, n., and Kil-
ham 'IK Ward, 2 Mass. 236, and of George Phipps, 2 Pickering,
394, n."
Thonipson, J., in luglis v. Trustees, 3 Pet. 120 et seq.
" The American States [during the. Revolutionary War] insisted
upon the allegiance of all born within the States respectively, and
Great Britain asserted an equally exclusive claim. The treaty of
peace of 178'i acted upon the state of things as it existed at that
period. It took the actiuil state of things as its basis. All those,
Avhether natives or otherwise, w^ho then adhered to the American
States were virtually absolved from all allegiance to the British
Crown. All those who then adhered to the British Crown were
deemed and held subjects of that Crown. The treaty of peace was
§ 376.] EFFECT OF REVOLUTION. 293
a treaty operating between the states on each side and the inhabit-
ants thereof. In the language of the seventh article, it was a firm
and perpetual peace between His Britannic Majesty and the said
States, ' and between the subjects of the one and the citizens of the
other.' Wlio were then subjects or citizens was to be decided by the
state of facts. If they were originally subjects of Great Britain,
and then adhered to her, and were claimed by her as subjects, the
treaty deemed them such. If they were originally British subjects,
but then adhering to the States, the treaty deemed them citizens.
Such, I think, is the natural, and, indeed, almost necessary meaning
of the treaty; it would otherwise follow that there would continue
a double allegiance of many persons, an inconvenience which must
have been foreseen, and would cause the most injurious effects to
both nations. ... It does not appear to us that her situation
as a feTYie covert disabled her from a change of allegiance. British
femes covert^ residing here with their husbands at the time of our
independence, and adhering to our side until the close of the war,
have been always supposed to have become thereby American citi-
zens and to have been absolved from their antecedent British alle-
giance. The incapacities of femes covert^ provided by the common
law, apply to their civil rights, and are for their protection and
interest. But they do not reach their political rights, nor prevent
their acquiring or losing a national character. Those political rights
do not stand upon the mere doctrines of municipal law, applicable
to ordinary transactions, but stand upon the more general principles
of the law of nations. The case of Martin v. The Commonwealth,
1 Mass. Rep. 347, turned upon very different considerations. There
the question was, whether a feme covert should be deemed to have for-
feited her estate for an offense committed with her husband, by with-
drawing from the State, &c., under the confiscation act of 1779; and
it was held that she was not within the purview of the act. The same
I'oniark disposes of the case of Sowell v. Lee, 0 Mass. Rep. 303, where
(he court expressly refused to decide whether the wife, by her with-
drawal with her husband, became an alien. But in Kelly v. Harri-
son, 2 Johns. Cas. 29, the reasoning of the court proceeds upon the
supposition that the wife might have acquired the same citizenship
with her husband, by withdraAving with him from the British
dominions. See also Bac. Abridg. Alien, A; Cro. Car. GOl, C)02; 4
Term. Rep. 300; Brook's Abr. Denizen, 21; Jackson v. Lunn, 3
Johns. Cas. 109."
story, .T.. in Shanks r. Dnniont. :\ IVt. 242, 247, 248.
By Art. II. of the Jay treaty, which provided for the withdrawal
of the British forces from all j)laces still hehl by them witliin the
boundaries of the United States, it was stipulated that all settlers and
294 NATIONALITY. [§ '^''^^•
traders within such places ini^lit renuiin there, but shouhl not Imj com-
pelled to become citizens of the rnited States or to take any oath of
allej;iance to that Government; that they slioidd, however, Ije at
lilx'Hy to do so, and shoukl " make and dechire tlieir election " withiii
a year after the evacuation ; and tliat if they reniained after the expi-
ration of the year, without having dechired their intention of continu-
ing to be Britisli subjects, they should be " considered as having
elected to become citizens of the United States." It was advised that,
by so remaining, a British subject did not ipno facto become a citizen
of the United States, but could become so only by naturalization in
accordance with sec. 2 of the act of Jan. 2i), 1795, 1 Stat. 414.
Wirt, At.-Gen., 1819, T} Oi». TIC. Appendix.
" The foreigners, therefore, who, during the existence of the Articles
of Confederation, became inhabitants, or, taking the expression in its
most limited sense, were admitted citizens of any State, Ixicame thereby
entitled to the privileges of citizens in the several States, and were,
to all intents and purposes, citizens of the United States at the time
of the adoption of the Constitution of the United States. The con-
trary opinion would lead to the extraordinary conclusion that the
several thousand foreigners naturalized under the laws of the States
prior to the adoption of the Constitution of the United States, not
being then deemed citizens of the United States, would be forever
ineligible, whilst those naturalized under the acts of Congress subse-
quent to the adoption of the Con.stitution would, as citizens of the
United States, become eligible to either House of Congi-ess."
Mr. Gallatin to Mr. Lowrie, Feb. 10, 1824, 2 Gallatin's Writings, 287.
Under the constitution of Texas of 1836, which identified as citi-
zens only those who resided there on the day of the declaration of
independence or who should be naturalized, and which provided that
no alien should hold land in Texas except by titles emanating from the
Government, and under the act of 1840 adopting the common law of
England, one who removed from Texas to Mexico during the revolu-
tion and before the declaration of independence, and remained in
Mexico, is an alien, and can not inherit in Texas.
Mc-Kinnoy r. Saviofjo, 18 How. 21^.
As to the terms of naturalization in Texas, see Moore, Int. Arbitrations,
III. 2541.
Wliere a person, born in Texas when it was a part of the Republic
of Mexico, the place of birth being also the domicil of her father and
mother until their deaths, was removed to Mexico at the age of four
years, before the declaration of Texan independence, and there re-
mained, it was held that she was an alien, and could sue in the courts
of the United States.
Jones V. McMasters, 20 How. 8.
§ 376.] EFFECT OF REVOLUTION. 295
A\Tiile, by Art. IX. of the treaty of i^eace between the United States
and Spain, Dec. 10, 1898, it was dechired that Congress should deter-
mine the civil rights and political status of the native inhabitants of
the territories ceded to the United States, nothing was said as to the
status of the native inhabitants of Cuba, Avhich was to be occupied by
the United States only provisionally. As Spain relinquislied her
sovereignty over the island, such inhabitants ceased to be subjects of
Spain, but they did not immediately gain another definite status.
Under these circumstances it was held that during the American
occupation they might, while " temporarily sojourning " in a foreign
country, be " protected through the exercise of good offices by the rej)-
resentatives of the United States in case of need upon due establish-
ment of their nativity and of their merely temporary absence from
Cuba and intention to return to and permanently reside in that island."
The diplomatic and consular officers of the United States were there-
fore authorized to register in their offices the names of native inhabit-
ants of Cuba who might be temporarily sojourning ^yithin their
jurisdiction, and to exercise their good offices for such as might seek
protection for well-established cause, it appearing that they had not
lost the quality pf native inhabitants of Cuba by naturalization in
any other country or by assuming therein obligations inconsistent
with their original allegiance.
Mr. Hay, Sec. of State, to the diplomatic and consular officers of the
T'nited States, circuhir, IVIay 2, 1899, For. Rel. 1900, 894.
This circular applied to Cubans in Spain. (Mr. Ilay, Sec. of State, to Mr.
Storer, niin. to Spain, No. 182, June 4, 19<:K), 23 MS. Inst. Spain, 28.)
The statutes of the United States permit, but do not require, American
consuls to administer oaths, take acknowledgments, and do other
notarial acts for the "legalization" of documents; but it was not
competent for the Government of the United States, by order or dec-
laration, to require documents drawn in foreign countries for use in
Cuba to be legalized before an American diplomatic or consular repre-
sentative. (Mr. Hay, Sec. of State, to Sec. of War, March IG, 1899,
235 MS. Dom. Let. 490.)
The circular of May 2, 1899. did not apply to minor children who. although
they were natives of Cuba, resided with their parents in Spain, where
the latter were apparently domiciled. (Mr. Adee, Act. Sec. of State,
to Mr. Storer, No. 51, Aug. 12, 1899, 22 MS. Inst. Spain, (H)7. See also,
Mr. Adee, Act. Sec. of State, to Mr. Storer, min. to Spain, No. 54.
Aug. 18, 1899, 22 MS. Inst. Spain, 009, enclosing copy of Departmenfs
No. 10, Aug. 18, 1899, to Mr. Lay, consul-general at Barcelona, in
reply to the latter's No. 18 bis, July 20, 1899.)
Moreover, the circular, as its title indicates, was intended to cover only
tiutivc inhabitants of the territory ceded or relinquished. So far as
concerned children born abroad to natives of Cuba prior to .Vpril 11,
1899, the date of the exchange of ratifications of the treaty of peace.
it was intimated that they " might very justly be held to be Spanish
subjects." while it '* might be i)roi)er to extend the i)rovisions of the
circular so as to include children of native Cubans born abroad after
296 NATIONALITY. [§ 37G.
April 11. IS!)!);" hut tiic Dcpartiiient was of opinion that, instead of
enlart:in>r tlio terms of the ciivular, " it would ho more prudont to take
up and decide in each individual ease whether the person is entitled
to prote<tion." (Mr. Ilay, Sec. of State, to Sec. of War, Dec. 28, 1900,
250 MS. Doiu. Let. 13.)
An inquiry havino; boon made in May, 1900, as to what steps, if
any, could be taken by a citizen and resident of Venezuela to i)re-
serve the original or the Cuban nationality of a child, a native of
Cuba, whom he had adopted eight years previously, the Depart-
ment of State iei)lied that the (juestion would be '" one for the deter-
mination of the Cuban authorities when a definitive govemmeut shall
be established in Cuba."
Mr. Hay, Sec. of State, to M;*. Looniis, niin. to Venezuela, June 8, 1900,
For. Kel. 1000, 954.
The capture of Charleston. S. C by the British forces in May, 1780. did
not jH'rniancntly change the allcKiJince or the national character of
the inhabitants. (Slianks t'. Dupont, 3 Pet. 242.)
In reply to an inquiry whether in case of " trouble " in Caracas
Cubans might hoist the United States flag for protection, the De-
partment of State said : " Flag should onl}^ be shown by citizens.
You may notify authorities of any menaced Cuban property and use
good offices for them."
Mr. Adee, Acting Sec. of State, to Mr. Russell, charge at Caracas, tel.,
Sept. 19, 1899, For. Rel. 1899, 790.
Benito Llaveria y Pascual was born in Havana, Cuba, June 24,
1875, his parents being natives of the province of Tarragona. In
1895 he went to Barcelona, Spain, where his father had resided for
three years. In March, 1898, he was conscripted. He applied for ex-
emption, on the ground that he and his father were only tempora-
rily residing in Barcelona. This application was denied ; and it
was held, besides, that he had incurred certain penalties by his fail-
ure previously to be enrolled on first becoming liable to service. He
failed, however, to report, and on April 1, 1898, returned to Havana.
In June, 1899, he returned to Spain, bearing a Cuban passport issued
b}' the United States military authorities and a certificate of identity
and residence issued by the municipal authorities of Havana; and
with these papers he was registered in the United States consulate-
general at Barcelona as a Cuban citizen. In January, 1901, he was
again drawn for duty, and his petition for exemption was rejected,
the military authorities holding that, even assuming that he had
lost his Spanish nationality, he was obliged to fidfill the obligation
of service previously incurred. This conclusion appearing to be in
accordance with the Spanish law, it was accepted by the United
States.
§ 377.] NATURALIZATION. 297
Mr. Hay, Sec. of State, to Mr. Storer, niin. to Si)i'in, April 8 and .Tune 1,
llJOl, For. Rel. IJM)!, 4(5!), 470.
In the instruction of April 8, Mr. Hay said: " If, under the Spanish law.
Mr. lilaveria was liahle to military service when he was enrolled
in Mafch, 1808, the Department is inclined to think that the Spanish
view is correct. A suhseiiuent clianj^e of nationality would not oper-
ate to dischar;;e the ohligation. You may e.xamine this question. The
Department's circular of May 2, 1891), only authorizes our dii)lomatic
and consular ollicers to exercise good oHices for the protection of
'native inhabitants of Cuba temporarily residing abroad.' The
consul at Barcelona has protested against the action of the Spanish
authorities In this case. The Department will therefore take no
further action oh it until it shall have received a report from you
on the point above referred to." (For. Kel. 1SX)1, 4(50.)
Mr. Storer having,, i^-eported that the conclusion of the military author-
itf^s appeared to be in conformity with the Spanish law, Mr. Hay,
in his Instruction of June 4, said: "You state that you have reiuiied
the conclusion thiit Mr. Benito Llaveria Pascual was by Spanish
law donuciled in Barcelona at the time of his enrolment for the
army in 1898; that he was of proper age to be enrolled, and that his
failure to present himself for such purpose places him entirely
under the penal sections cited by the connnission. You add that
you have advised the United States consul-general at Barcelona
of your conclusions. In rei>ly I have to say that the Department
approves your action." (For. liel. 1901, 470.)
Congress having declared by resolution that the people of the island
of Cuba " are and of right ought to be free and independent," and the
status of the island in this regard not having been changed by the
treaty with Spain of December 10, 1898, a citizen of Cuba is a citizen
of a foreign state, within the act of Congress of 1887 giving the
circuit court of the United States jurisdiction of controversies "be-
tween citizens of a State and foreign states, citizens, or subjects."
Betaueourt v. Mutual Reserve Fund Life Association, 101 Fed. Rep. 305.
III. NATURALIZATION.
, 1. Legislativk and Conventional Regulation.
§ 377.
Beginning with the act of March 20, 1790, 1 Stat. 103, Congress,
in the exercise of its power to establish an uniform rule of natural-
ization, has passed various statutes for the admission of aliens to
citizenship of the United States. References to these statutes are
given below. Reconunendations for their auiendment have from time
to time been made. See, in this rehition, the report of Messrs. Purdy,
Hunt, and Campbell to the President, under Executive order of
March 1, 1905, on the subject of naturalization and neetled amend-
ments of the law. (II. Doc. 4(), 59 Cong. 1 sess.)
298 NATIONALITY. [§ 377.
Naturalization has also been regulated to some extent by treaty.
The United States has concluded treaties on the subject with the
following countries: North German Union, Feb, 22, 1808; Bavaria,
May 20, 1808; Baden, July 19, 1808; Hesse, Aug. 1, 1808; Belgium,
Nov. 10, 1808; Sweden and Norway, May 20, 1869; Great Britain,
May 18, 1870; Austria-Hungary, Sept. 20, 1870; Ecuador, May 0,
1872; Denmark, July 20, 1872; Hayti, March 22, 1902.
Although a fraudulent certificate of naturalization may be taken
up by a diplomatic representative of the United States and sent to
the Department of State, yet " tlje record of the court in which the
fraudulent naturalization occurred remains, and duplicate certificates
are readily obtainable ... I earnestly reciHnmend further legis-
lation to punish fraudulent naturalization find to secure the- ready
cancellation of the record of every naturalization made in fraud."
President Grant, annual message, Dec. 7, 1874, For. Rel. 1874, xi.
The revision of tlie naturalization laws, especially so as to prevent frauds,
is strongly recoumiended by President Roosevelt in his annual mes-
sage of Dee. G, 1004.
See, also, his special message of Dec. .''), 1905, transmitting to Congress
the rei)ort of the Connnission on Naturalization (Messrs. Purdj',
Hunt, and Campbell) of Nov. 8, 1905, with drafts of bills on the
subject. (H. Doc. 4G, 59 Cong. 1 sess.)
" The numbers of persons of foreign birth seeking a home in the
United States, the ease and facility with which the honest emigrant
may after the lapse of a reasonable time become possessed of all the
privileges of citizenship of the United States, and the frequent occa-
sions which induce such adopted citizens to return to the country of
their birth, render the subject of naturalization and the safeguards
which experience has proved necessary for the protection of the hon-
est naturalized citizen of paramount importance. The very sim-
plicity in the requirements of law on this question affords oppor-
tunity for fraud, and the want of uniformity in the proceedings and
records of the various courts, and in the forms of the certificates of
naturalization issued, affords a constant source of difficulty.
" I suggest no additional requirements to the acquisition of citizen-
ship beyond those now existing, but I invite the earnest attention of
Congress to the necessity and wisdom of some provisions regarding
uniformity in the records and certificates, and providing against the
frauds which freque^itly take place, and for the vacating of a record
of naturalization obtained in fraud.
"These provisions are needed in aid and for the jirotection of the
honest citizen of foreign bii-th, and for the want of which he is made
to suffer not infrequently. The United States has insisted ujion the
right of expatriation, and has obtained after a long struggle an
§ 377.] NATURALIZATION. 299
admission of the principle contended for by acquiescence therein on
the part of many foreign powers and by the conchision of treaties on
that subject. It is, however, but justice to the government to w^hich
such naturalized citizens have formerly owed allegiance, as well as
to the United States, that certain fixed and definite rules should be
adopted governing such cases and providing how expatriation may
be accomplished.
" While emigrants in large numbers become citizens of the United
States, it is also true that persons, both native-born and naturalized,
once citizens of the United States, either by formal acts or as the
effect of a series of facts and circumstances, abandon their citizenship
and cease to be entitled to the protection of the United States, but
continue on convenient occasions to assert a claim to protection in the
absence of provisions on these questions."
President Grant, annual message, Dee. 5, 1876, For. Rel. 187G, ix.
" Our existing naturalization laws also need revision. Those sec-
tions relating to persons residing within the limits of the United
States in 1705 and 1798 have now only a historical interest. Section
2172, recognizing the citizenship of the children of naturalized par-
ents, is ambiguous in its terms and partly obsolete. There are special
provisions of law favoring the naturalization of those who serve in
the Army or in merchant vessels, while no similar privileges are
granted those who serve in the Navy or the Marine Corps.
" 'An uniform rule of naturalization,' such as the Constitution con-
templates, should, among other things, clearly define the status of per-
sons born within the United States subject to a foreign power (section
1092) and of minor children of fathers who have declared their inten-
tion to become citizens but have failed to perfect their naturalization.
It might be wise to provide for a central bureau of registry, wherein
should be filed authenticated transcripts of every record of naturali-
zation in the several Federal and State courts, and to make provision
also for the vacation or cancellation of such record in cases where
fraud had been practiced upon the court by the applicant himself or
where he had renounced or forfeited his acquired citizenship. A just
and uniform law in this respect would strengthen the hands of the
Government in protecting its citizens abroad, and w^ould pave the
way for the conclusion of treaties of naturalization with foreign
countries."
President Arthur, annual message, Dec. 1, 1884, For. Rel. 1884, x.
" The inadequacy of existing legislation touching citizenship and
naturalization demands your consideration. While recognizing the
right of expatriation, no statutory provision exists providing means
300 NATIONALITY. [§377.
for renouncing citizenship by an American citizen, native-born or
naturalized, nor for terminating and vacating an improper acquisi-
tion of citizenship. Even a fraudulent decree of naturalization can-
not now be canceled. The privilege and franchise of American citi-
zenship should he granted with care, and extended to those only who
intend in good faith to assume its duties and responsibilities when
attaining its privileges and benefits; it should be withheld from those
who merely go through the forms of naturalization with the intent of
escaping the duties of their original allegiance without taking upon
themselves those of their new status, or who ma}'^ acquire the rights
of American citizenship for no other than a hostile purpose towards
their original governments. These evils have had many flagrant
illustrations. I regard with favor the suggestion put forth by one
of my j)redecessors, that provision be made for a central bureau of
record of the decrees of naturalization granted by the various courts
throughout the United States now invested with that power."
President Cleveland, annual message, Dec. 8, 188.5, For. Rel. 1885, xv.
" I renew the recommendation of my last annual message, that existing
legislation concerning citizenship and naturalization he revised. We
have treaties with many states jn-oviding for the renunciation of
citizenship hy naturalized aliens, hut no statute is found to give
effect to such engagements, nor any which provides a needed central
bureau for the registration of naturalize<l citizens." (President
Cleveland, anniial message, Dec. 6, 188G, For. Rel. 188G, xi.)
" With the rapid increase of immigration to our shores and the
facilities of modern travel, abuses of the generous privileges afforded
by our naturalization laws call for their careful revision.
" The easy and unguarded manner in which certificates of American
citizenship can now be obtained has induced a class, imfortimately
large, to avail themselves of the ojiportunity to become absolved from
allegiance to their native land and yet by a foreign residence to
escape any just duty and contribution of service to the country of
their proposed adoption. Thus, while evading the duties of citizen-
ship to the United States they may make prompt claim for its
national protection and demand its intervention in their behalf.
International complications of a serious nature arise, and the cor-
respondence of the State Department discloses the great niunber and
complexity of the questions which have been raised.
" Our laws regulating the issue of passports should be carefully
revised, and the institution of a central bureau of registration at the
capital is again strongly recommended. By this means full par-
ticulars of each case of naturalization in the United States would
be secured and properly indexed and recorded, and thus many cases
of spurious citizenship would be detected and unjust responsibilities
would be avoided."
§ 377.] NATUKALIZATION. ' 301
President Clevelaud, aunual message, Dec. 3, 1888, For. Rel. 1888, I.
xvii-xviii.
" Our naturalization laws should be so revised as to make the in-
quiry into the moral character and good disposition towards our
Government of the persons applying for citizenship more tliorough.
This can only be done by taking fuller control of the examination,
by fixing the times for hearing such applications, and by requiring
the presence of some one who shall represent the Govermnent in
the inquiry. Those who are the avowed enemies of social order, or
who come to our shores to sw^ell the injurious influence and to extend
the evil practices of any association that defies our laws, should not
only be denied citizenship but a domicile."
President Harrison, annual message, Dec. .3, 1889, For. Rel. 1889, xvi.
*' I beg to renew my rocoinniondatlon that the laws be so amended as
to require a more full and seiirching inquiry into all the facts neces-
sarj' to naturalization before any certificates are granted. It cer-
tainly is not too much to^ require that an application for American
citizenship shall be heard with as much care and recorded with as
much formality as are given to cases involving the pettiest property
right." (President Harrison, annual message, Dec. 1, 1890, For. Rel.
1890, xiii.)
See infra, § 384.
"Another consideration of cognate character presents itself. In
the absence of a naturalization convention, some few states hold self-
cxpatriation without the previous consent of the sovereign to be pun-
ishable, or to entail consequences indistinguishable from banishment.
Turkey, for instance, only tacitly assents to the expatriation of
Ottoman subjects so long as they remain outside Turkish jurisdic-
tion. Should they return thereto their acquired alienship is ignored.
Should they seek to cure the matter by asking permission to be
naturalized abroad, consent is coupled with tlie condition of non-
return to Turkey. It is the object of a naturalization convention to
remedy this feature by placing the naturalized alien on a parity with
the natural-born citizen and according him due recognition as such."
Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17,
1902, For. Rel. 1902, 910. 911.
" The Government of the United States regards the conclusion of
conventions of this character [naturalization conventions] as of the
highest value, because not only establishing and recognizing the
right of- the citizens of the foreign state to expatriate themselves
voluntarily and acquire the citizenship of this country, but also
because establishing beyond the pale of doubt the absolute equality
of such naturalized persons with native citizens of the ITnited States
in all that concerns their relation to or intercourse with the country
of their former allegiance. . . .
302 NATIONALITY. [§ 378.
" In some instances other <jovernnients, takinjif a less broad view,
regard the rights of intercourse of alien citizens as not extending to
their former subjects who may have acquired another nationality.
So far as this position is founded on national sovereignty and asserts
a claim to the allegiance and service of the subject not to be extin-
guished save by the consent of the sovereign, it finds precedent and
warrant which it is inmiaterial to the purj)ose of this instruction to
discuss. Where such a claim exists, it becomes the province of a
naturalization convention to adjust it on a ground of common advan-
tage, substituting the general sanction of treaty for the individual
permission of expatriation and recognizing the subject who may have
changed allegiance as being oji the same plane with the natural or
native citizens of the other contracting state."
Mr. Hay, See. of State, to Mr. Wilson, miii. to Koumania, No. 14, July 17,
1902, For. Rel, 1902, 910.
In the negotiation of a naturalization treaty, no clause could be
admitted that implied assent to the imposition by the country of
origin upon any class of persons, by reason of their creed, of " such
legal disability ... as may impair their interests in that coun-
try or operate to deny them the judicial remedies there which all
American citizens may justly claim in accordance w'ith the law and
comity of nations."
Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17,
1902, For. Rel. 1902, 910, 914.
In the negotiation of a naturalization treaty no clause could be
admitted that implied an obligation to receive and convert into citi-
zens persons falling within any of the categories of jjrohibited
immigrants.
Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17,
1902, For. Rel. 1902, 910, 914.
2. Voluntary Individual Action.
§ 378.
July 31, 1840, the Peruvian Government issued to the prefects and
to the superior courts of justice a circular order, say-
ing : " The 168th article of the Constitution provides
that foreigners who acquire real estate are ipso facto naturalized."
The clerks were therefore forbidden to draw up any instrument for
the alienation of the right and title or the usufruct of any lands or
real estate to any foreigner, without inserting an express renunciation
of his foreign citizenship, as well as an express submission, as a nat-
§ 378.] NATURALIZATION. 303
uralized Peruvian, to the laws of the country. Besides, wherever,
either judicially or extrajudicially, a foreigner, in consequence of a
lien or mortgage, acquired an interest in real estate, the official draw-
ing up the sentence or instrument was required to insert like clauses.
Mr. Pickett, charge d'affaires of the United States at Lima, pro-
tested against the order, on the ground that, while aliens might be
prevented from holding real estate, to treat them as citizens merely
because they had bought it was to lay a snare for them. The Peru-
vian Government defended its action, but afterwards stated that the
order would not be construed to operate retroactively. With refer-
ejice to this concession Mr. Pickett expressed the opinion that the
measure would be '* abandoned piecemeal " until it became " unob-
jectionable " or a " dead letter," though it might not be formally
repealed.
Mr. IMckett to Mr. Forsyth, Sec. of State, No. 19, Aug. 10, 1840 ; No. 35,
Feb. 17, 1841, 5 MS. Desp. from I'eru ; Mr. Pickett to Mr. Webster,
No. 51, Nov. 12, 1841, G MS. Desp. from Peru.
" These and other parts of the j)roclamation [of October 21, 1817]
exhibit very clearly its intent that there was no dis-
Mr. Webster's position on the part of the Spanish authorities to
opinion on domicili- • ,, /./. -ii t ••tj.- £
^ exercise the power oi lorcibly domiciliating loreign-
ation, . ■*■ '' o o
ers, even if such power were not contrary to all nat-
ural law. . . . Change of allegiance, which is manifested by the
voluntary action and usually by the oath of the party himself, ought
always to be accomplished by proceedings which are understood on
all sides to have that effect. It is certainly just that acts which are to
be regarded as changing the allegiance of American citizens should
be distinctly understood by those to whom they are applied as having
that effect; that the practical as well as the theoretical construction
of such acts should be unequivocal and uniform, and that no acts
should be deemed acts of expatriation except such as are openly
avowed and fully understood."
Mr. Webster, Sec. of State, to Mr. Sharkey, consul at Havana, July 5,
1Sr,2, Moore, Int. Arbitrations, III. 2701, 2702, 2703.
See, however, Mr. Seward, Sec. of State, to Mr. Dayton, min. to France,
July 20, 1803. Dip. Cor., 1803, I. G84, quoted infra, § 405.
A law by a foreign state providing that all j)ersons visiting such
state are to be regarded as citizens or subjects will not be regarded
as internationally binding.
Mr. Fish. Sec. of State, to Mr. Russell, niin. to Venezuela, Feb. 22, 1875,
MS. Inst. Venez. II. 28:1
See. to the same eifect, lilack. At. (Jen., 18.W. 0 Op. 3.50.
The (piestion of citizenship will not be determined e.\ parte on the api)li-
cation of a foreign government. (Mr. Bayard. Sec. of State, to Col.
Frey, Swiss min.. May 20, 1887, MS. Notes to Switz. I. 158.)
804 NATIONALITY. [§ 378."
The constitution of Mexico, of 1857, Title I.,sec. 2, art. 30, provides:
" They are Mexicans : . . . III. Foreigners who
nes ion as o .^(.(,j,jj.g j.^^^ estate in the Republic, or have Mexican
Mexican law. . .
children; Provided, always, they do not manifest
their resolution to preserve their nationality." Various cases involv-
ing the interpretation and effect of this provision came before the
mixed connnission under the convention Ix'tween the Unitetl States
and Mexico, of July -l, 18G8. The best known of these cases w^as that
of Fayette Anderson and William Thompson, citizens of the United
States, Avho made a claim against the Mexican Gov'ernuient on
account of acts committed in 1867. It appeared that in 18G3 they
went to Mexico and bought, land. The case was referred to the
umpire. Dr. Lieber, who said : " This law clearly means to confer a
benefit uj^on the foreign purchaser of land, and equity would assur-
edly forbid us to force this benefit upon claimants (as a penalty, as
it were, in this €ase), merely on account of omitting the declaration
of a negative ; that is to say, they omitted stating that they preferred
remaining American citizens, as they w^ere by birth — one of the
very strongest of all ties. . . . The umpire . . . decides
that they were citizens of the United States, and that they have a full
right, under the convention, to present their claims to the joint
United States and Mexican Commission."
Moore, Int. Arbitrations, III. 2479-2481.
Sir Edward Tliornton, who succeeded Dr. Lieber as umpire, followed tlie
same rule of decision in such cases. (Id. 2481-2482.)
See the argument of Mr. Ashton, agent and counsel of the ITnited States,
on the above-cited provision of the Mexican constitution, and also
his reference to the decree of I'resideut Comoufort, of February 1,
1856. (Id. 2408-2477.)
By the hnv of February 1, 185G, article 8, it is f)rovided that aliens
who have acquired real })r()perty in Mexico may become citizens of
the Republic by making a declaration of their wish to be naturalized
before the civil authorities of the place of their residence, and that, on
the presentation of this declaration at the ministry of foreign affairs,
accompanied with a proper petition, " their letter of citizenship shall
be issued to them."
Chapter T., article 1, section 10, of the law of May 28, 188G, c<m-
cerning alienage and naturalization, declares to be Mexicans '' aliens
acquiring real estate in the Republic, provided they do not declare
their intention of retaining their nationality." By the same section
the alien is required at the time of accjuiring the i)roperty to declare
" to the officiating notary or judge whether he does or does not wnsh
to acquire the Mexican nationality granted him by section 3 of
article 30 of the constitution," and his decision on the point is required
to appear in the document.
§ 378,] NATURALIZATION. 305
By Chapter III., article 19, it is provided that aliens who come
Avithin section 10 may petition the department of foreign relations
for their certificate of naturalization within the time allowed for that
purpose, namely, one year, and they are required to annex to their
petition a document proving that they have acquired the real estate.
By Chapter III., sections 14 and 16, the petitioner is required in the
course of the process to renounce all submission, obedience and fealty
to every foreign government, and especially to that of which he was
a subject.
For. Rel. 1895, II. 1013, 1015.
" The attention of the Department has recently been drawn to a
' Notice to Americans ' published by the legation of the United States
in Mexico, in August last, and of which the following is a copy :
" 'Americans are hereby notified that, in conformity with Article I.,
Chapter V., of the Law of Foreigners of June, 1880, foreigners who
may have acquired real estate or have had children born to them
within (the) Republic will be considered by the Mexican Government
as Mexican citizens, unless they officially declare their intention to
retain their own nationality and to that effect obtain from the depart-
ment of foreign affairs a certificate of nationality on or before
December 4, 1886.
" ' Said certificates may be obtained for Americans through the
legation of the United States, in this city. Applications for same
must be accompanied by one dollar for the necessary revenue stamps.
"'(Signed): Legation of the United States, Mexico, August 20,
1886.'
"A copy and a translation of the law in question were transmitted
to the Department in Mr. Jackson's No. 241, of the 21st of June last,
but as the dispatch contained copies and translations of other Mexi-
can laws, to which specific references were made for the Department's
guidance, the provisions of Article I. of Chapter V. of the Law of
Foreigners, to which no reference was made, were overlooked, until
the notice above quoted, which was not submitted nor connnunicated
to the Department, was subsequently and only incidentally brought
to its attention. A comparison of the notice with the law shows that
there are certain provisions of the latter to which the notice does not
refer; but they do not in any way tend to remove, but rather to
increase, the dissent of this Government from the position of ^Mexico
as disclosed in the notice. The law in question, having been adopted
for the purpose of denationalizing certain classes of foreigners in
that country, unless they take some affirmative action to preserve
their nationality, contains a principle which this Government is com-
pelled to regard as inadmissible.
H. Doc. 551— vol 3 20
306 NATIONALITY. [§ 378.
" The United States, while churning for aliens within its jurisdic-
tion, and freely conceding to its citizens in other jurisdictions, the
right of expatriation, has always maintained that the transfer of
allegiance must be by a distinctly voluntary act, and that the loss of
citizenship cannot be imposed as a penalty nor a new national status
forced as a favor by one government upon a citizen of another.
" Not only is this believed to be the generally recognized rule of
international law, but it is pertinent to notice that it was accepted
and acted upon by the mixed commission under the convention of
July 4, 1808, between the United States and Mexico. The first um-
pire of that commission, Dr. Francis Lieber, held, and the commis-
sioners subsequently followed his decision, that a law of Mexico declar-
ing every purchaser of land in that country a Mexican citizen unless
he expressed a desire not to become so, did not operate to change,
against their will, the national status of citizens of the United States
who had purchased land in Mexico, but who had omitted in so doing
to disclaim an intention to transfer their allegiance.
" The notice in question is not interpreted by the Department as an
admission by the legation of the defensibleness, on generally accepted
principles of international intercourse, of legislative decrees chang-
ing the national status of foreigners without their consent. Ameri-
cans are notified that, unless they do certain things, they ' will be
considered by the Mexican Government as Mexican citizens.' This,
it is to be observed, does not assert or imply that the legation acceded
to the Mexican position. But in order to avoid any question of this
kind hereafter you will take occasion to make known to the Mexican
Government that this Department does not regard the publication of
the notice above referred to as admitting the doctrine of involuntary
change of allegiance, or that the same can be held conclusive upon
our citizens ; and that this Government is constrained to withhold its
assent from that doctrine, as embodied in Article I., Chapter V., of
the law referred to."
Mr. Bayard, Sec. of State, to Mr. Manning, min. to Mexico, Nov. 20, 1886.
For. Rel. 1880, 723.
The views set forth in the foregoing instruction were duly communicated
to the Mexican Government. (Mr. Manning, Am. min., to Mr. Maris-
eal, min. of for. aff., Nov. 30, 1886, For. Rel. 1887, 672.)
The Mexican Government declined to discuss " the right which Mexico
has to issue laws that emanate directly from the provisions of its
constitution, unless some practical case arises to give occasion to such
debate." (Mr. Mariscal to Mr. Manning, Dec. 1, 1886, For. Rel., 1887,
678.)
See, also, Mr. Manning to Mr. Bayard, Dec. 11, 1886, and Mr. Bayard to
Mr. Manning, .Jan. 18, 1887, For. Rel. 1887, 681, 684.
By an act of the Mexican Congress of May .30, 1887, the time designated
in Art. I., Chap. V., of the law of May 28, 1886, for making the decla-
§378.] NATURALIZATION. 307
ration with regard to nationality, was extended for eight months.
(Mr. Manning to Mr. Bayard, April 15 and June 7, 1887, For. Rel.
1887, 712, 7.31.)
Mr. Bayard, while expressing appreciation of the disposition shown by the
Mexican Gov-ernniont to afford to all who desired to do so an opportu-
nity to make the prescribed regulation, still expressed " dissent from
the position that foreigners who have purchased land or had children
born to them in Mexico may, from time to time, by a nnniicipal stat-
ute, be deprived of their nationality xiuless they take some affirma-
tive step to preserve it." (Mr. Bayard to Mr. Manning, April 27,
1887; Mr. Manning to Mr. Mariscal, June 7, 1887, For. Rel. 1887, 717,
732-733.)
See, in the same sense, Mr. Bayard, Sec. of State, to Mr. Whitehouse,
charge, Nov. 14, 1888, MS. Inst. Mexico XXII, 300.
In 1895, the Mexican Government declined to extradite Chester W.
Rowe, a fugitive from the justice of the United States, on the ground
that he had acquired Mexican nationality by the purchase of real
estate. Circumstances indicated that Rowe had sought Mexican
nationality in this manner after he had taken refuge in Mexico, with
a view to secure protection against the demand for his extradition.
On this ground the United States raised the question whether his
naturalization was valid, and expressed a desire that this question
should be judicially determined. The Mexican Government dis-
claimed the power to institute judicial proceedings on itsown motion
for this purpose, but stated that the Mexican courts would be pre-
pared to pass upon the question if the United States should institute
proceedings. In the course of the diplomatic discussions, the Depart-
ment of State of the United States said : " It is not Avithiii the prov-
ince or intent of this Department to find fault with the laAvs of
Mexico, nor to deny the effect attributed to them by Mr. Mariscal in
this case."
Mr. Olney, Sec. of State, to Mr. Ransom, min. to Mexico, Dec. 13, 1895,
For. Rel. 181>5. 11. 1008.
The ;M('xican laws concerning naturalization and the law tinder which
foreigners, by accpiiring real estate in the Republic, are invested with
Mexican nationality, may be found in For. Rel. 1895, II. 1011-1018,
See, also, Mr. Olney. Sec. of State, to Mr. Ransom, min. to Mexico,
No. 123, Nov. 22, 1805, MS. Inst. Mex. XXlV. 21.
February 19, 1890, Mr. Blaine, in an instruction to (he minister of
the United States at Rio de Janeiro, stated that at-
tention had been attracted to a decree of the provi-
Brazil. . « -r-w
sional government of December 15, 1889, the first
article of which declared that all foreigners who were residing in
Brazil on November 15, 1889, the date of the advent of the Republic,
Avould be considered as Brazilian citizens, unless within six months
from the publication of the decree they should make a declaratiori to
308- NATIONALITY. [§ 37S.
the contrary before the proper juithorities of the municipalities in
which they respectively were domiciled; while, by the second article
of the decree, it was declared that all foreigners who should thereafter
reside in the country for t*^n years should be (considered as Brazilian
citizens,, unless they made the declaration provided for in the first
article. Ml*. Blaine stated that the principle of the decree was not
entirely novel, but that it was not known to have been accepted by
foreign governments when brought to their attention. In this rela-
tion he referred to the Mexican law of 1886 and to the representations
made by the United States with regard to.it. To hold that the mere
residence of an individual in a foreign country was conclusive evi-
dence of his desire and intention to become one of its citizens would,
declared Mi". Blaine, involve an assumption of a most violent charac-
ter. In a matter of such vital importance as that of citizenship it
was, he said, necessary to preserve fundamental principles, and espe-
cially was this so in the case of commercial nations into whose territory
foreigners came to reside for purposes of lawful enterprise, wholly
disconnected from any desire to participate in political atfairs. It
was scarcely compatible with this beneficial state of intercourse to
attribute to such persons political aspirations and compel them to
make a disclaimer in order to preserve their nationality. For these
reasons the United States was unable, said Mr. Blaine, to concede
that the decree in question might have the effect of denationalizing
citizens of the United States residing in Brazil.
In consequence of communications made at Washington, the lega-
tion at Rio de Janeiro was directed not to present the foregoing
instructions to the Brazilian Government till further advised.
In a circular of May 23, 1890, the Brazilian ministry of foreign
affairs stated that the provisional government had no intention of
imposing Brazilian citizenship on the foreigners to whom the decree
referred, but that to some governments, and especially to the French
Republic, it had seemed that this was the case. The French Govern-
ment had therefore asked (1) what would be tlie opinion of the
provisional government if a Frenchman should insist that, as he had
not made the necessary declaration before the 15th of June, he did
not cease to be a French citizen, and (2) what would the provisional
government think of the case of a Frenchman who, after taking
advantage of the decree, should return to France and sedv the assist-
ance of the Brazilian legation to protect him against a charge of
desertion. The ministry of foreign affairs said it had answered the
first question by stating that the decree was intended to admit into
the Brazilian communion all who desired to euter it without any
constraint, and that if a Frenchman who had not taken advantage of
the privileges allowed by the decree insisted on not being naturalized,
his protest would be respected. To the second inquiry, the ministry
§ 378.] NATURALIZATION. 809
of foreign affairs replied that the Brazilian legation would not pro-
test against the decision of the French Government in the case men-
tioned. The ministry of foreign affairs also stated that by a decree
of May 15, 1800, the Government allowed the declaration to be made,
not only before the municipal chambers, but also before notaries
public and before the diplomatic or consular representative of the
interested party, and that the Government would also grant an exten-
sion of the time allowed for making it.
In view of these statements as to the interpretation and enforce-
ment of the decree, the legation of the United States was instructed
September 5, 1890, that the Department of State, while entertaining
no doubt as to the correctness of the principles previously enunciated
by it, was of opinion that it would be advisable for citizens of the
United States to make the desired declaration before the American
diplomatic or consular officers. Other governments, said the Depart-
ment, were known to have advised their citizens to take this course,
W'hich seemed to be dictated by a just consideration for their con-
venience, and security. At the same time, the legation, in acquainting
the Brazilian Government with the nature of these instructions, was
to add that, although the Government of the United States had
counselled its citizens to make the declaration, it could not admit that
a failure to make it prevented such citizens from, appealing to their
Government in case of necessity, or estopped that Government from
affording them relief and protection.
October 21, 1890, the American legation issued an instruction to
the consular officers of the United States in Brazil to receive the
declarations of citizens of the United States, and on the '2-tth of the
same month the legation made a communication on the subject to
the ministry of foreign affairs.
In a memorandum presented to the Department of State, October
9, 1890, the Brazilian legation at Washington, after referring to
the i^rovisions in the codes of various nations, under which, par-
ticularly in cases of double allegiance, the election of nationality
may be inferred from the silence of the individual, said : " The
Brazilian decree does not impose nationality, and the Government
has given all facilities for its execution. It has been made known
that any claim ])resented through diplomatic or consular agency
would be favorably received if the claimant had not enjoyed any of
the rights granted ; that the declaration required in the decree can
be made either before the muni('i})al and police authorities or before
the diplomatic or consular agent of the res])ective nation ; that the
term for the declaration [has been] enlarged up to the 81st of Decem-
ber, 1890; and, finally, the constitution, which has just been issued,
extends still more that term, allowing six months to be reckoned from
the date of the execution of the constitution. From these considera-
310 NATIONALITY. [§ 378.
tions it folknvs: (1) That the provisional government have exercised
Iheir right and have not gone beyond it. (2) That their nationality
having not been made compulsory on foreigners residing in the
Republic, they do not violate the hitters' rights nor cause them any
loss. (3) That the protest of the Italian Government has no foun-
dation. (4) That the clahn that the decree be revoked or modified
4s contrary to the sovereignty and dignity of Brazil. The Govern-
ment of Brazil therefore is bound not to accede to that claim."
Mr. Blaine. Sec. of State, to Mr. Adams, min. to Brazil, Jan. 7, Feb. 19,
^ March (>, and March 22, 18i)0, MS. Inst. Brazil, ;XVII. 427, 441, 452,
• 457 ; Mr. Ia>c, charge, to Mr. lilainc. Sec. of State, May 9, and May
27, 18iH», 4!) MS. Desp. Brazil; Mr. Blaino, Sec. of State, to Mr. Lee,
charge. .Tnnc ;i, 1890, MS. Inst Brazil, XVII. 4G1 ; Mr. Wharton, Act.
Sec. of State, to Mr. Lee, charge, Sept. 5, 1890, id. 473; Mr. I./ee,
charge, to Mr. Blaine, Sec. of State, Oct. 24, 1890, 50 MS. Desp. Brazil ;
Mr. Blaine, Sec. of State, to Mr. Conger, min. to Brazil, Dec. 3, 1890,
MS. Inst. Brazil, XVII. 490, enclosing copy of a memorandum by Mr.
Valente, Brazilian min., Oct. 9, ISiX), and a " reply of Mr. Blaine, of
De<'. 2, 18J)0." The " ivply " of Mr. Blaine does not appear, however,
to have been sent to ^Ir. Valente. An endorsement on Mr. Valente's
memorandvnn, " ans'd Dec. 2, 1890," is crossed out, indicating that
the answer was written, but was at the last moment withheld. A
copy probably was transmitted to Mr. Conger, in accordance with
a direction previously given and by oversight not afterwards counter-
manded. See, in this relation, Mr. Blaine, Sec. of State, to Mr.
Mendonca, Brazilian min., Nov. 4, 1890, enclosing copy of Mr. Blaine's
instruction to Mr. Adams, of Feb. 19, 1890, the delivery of which was
" by request " withheld from the Brazilian Government, and stating
that " all further consideration of the subject " would at Mr.
Mendonf;a's " earnest request " be postponed till after the hitter's
return from a journey which he was about to make to Rio de Janeiro.
(MS. Notes to Brazil, VII. 91.)
March 20, 1800, the Haytian Government issued an invitation to
" all men of African origin who are willing to share
Case of Haytian ^,,,j. foptAines " to purchase land and settle in that
igran s. country. It was stated that permission would be
granted to immigrants to buy land on their making a declaration that
they wished to become Ilaytians, and on their renouncing every other
nationality. It was stated that any of the immigrants destined to a
religious career would be exempt from military service, but that no
exception would be nuide in the case of those who were engaged in
secular pursuits. All immigrants who complied with the conditions
were, after a settlement of a year and a day in the Republic, to
enjoy all the privileges of Haytian citizens. This invitation was
accepted by various persons in the United States, who went to
Hayti and obtained grants of land thereunder, upon their becoming
citizens. On the subsetjuent claim of some of these persons to exemp-
§379.] COLLECTIVE NATURALIZATION. 311
tion as citizens of the United States from military service, the De-
partment of State said : "As the immigration of the persons in ques-
tion and the acceptance by, them of a hind grant from the Haytian
Government appears to have been expressly conditioned upon their
becoming citizens of Hayti, the transaction must be regarded as a
voluntary contract whereby the immigrant settler renounced his
American citizenship and became merged in the body politic of the
Haytian Republic. You will test each individual case by this rule
and act accordingly, withholding the passport if the fact of the
acquisition of Haytian citizenship appear."
Mr. Hay, Sec. of State, to Mr. Towell, min. to Hayti, Dec. 1, 1899, For.
Rel. 1899, 403.
In a pi'evious instruction to Mr. Powell, Sept. 2, 1899, Mr. Hay said :
" It appears that the persons you describe are either persons who
have emigrated from the Southern States of the Union as settlers
in Hayti under grants of land, or the children of such settlers horn
in Hayti. It therefore becomes pertinent to ascertain, if possible,
whether the grants to these colonists were conditioned upon the
assumption by them of full or qualified Haytian allegiance. Such
a condition is common in grants of land to immigrant settlers.
If these persons immigrated to Hayti and took up land under a con-
tractual teiuire, whereby they shared in the political concerns of the
Republic, that circumstance would, prima facie, establish an adop-
tion of a new status and an abandonment of their original status,
which would operate to give their children born in Hayti the
character of Haytian allegiance, but to what extent, if at all, would
depend upon the terms of their grants." (For. Rel. 1899, 400.)
In resix)nse to this instruction Mr. Powell sent the information on
which the instruction of December 1, 1899, was based.
3. CoLLECTi\'E Naturalization.
(1) BY POLITICAL INCORPOKATION.
§ 379.
The " nationality of the inhabitants of territory acquired by con-
quest or cession becomes that of the government under whose do-
minion they pass, subject to the right of election on their part to
retain their former nationality by removal or otherwise, as may be
provided."
Opinion of Ch. Jus. Fuller, concurred in by .Tustices Blatchford. Bradley.
Lamar, and Brewer, Boyd r. Thayer, 143 U. S. 13,"), citing United
States V. Ritchie, 17 How. 525, 539; Inglis v. Trustees, 3 Pet. 99; Mcll-
vaine v. Coxe's Lessee, 4 Cranch, 209 ; Shanks v. Dupont, 3 Pet. 242 ;
Crane v. Reeder. 25 Mich. 30.3.
For exami>les of the collective naturalization of American Indians, see
Elk V. Wilkius, 112 U. S. 94.
312 NATIONALITY. ['§ '"^^O.
On the transfer of territory by one sovereign to another, it has
never been held that the rehitions of the inhabitants with each otlier
undergo any change. Their relations with their former sovereign
are dissolved, and new relations are created between them and the
Government which has acquired their territory. The same act which
transfers their country transfers the allegiance of those who remain
in it, and while the law^ which may be denominated political is neces-
sarily changed, that Avhich regulates the intercourse and general con-
duct of individuals remains in force until altered by the newly-
created powder of the state.
Americau Ins. Co. v. Canter, 1 Pet. 511, 542; United States v. Repen-
tigny, 5 Wall. 211.
As to the annexation of territory, see supra, § 83 et seq.
See, also, Morse, Status of Inhabitants of Territory acquired by Discovery,
Purchase, Cession, or Conquest, according to the Usage of the United
States, 39 Am. Law Reg. (June, 1900), 332.
By a principle of international law, on a transfer of territory by
one nation to another, the political relations between the inhabitants
of the ceded country and the former Government are changed, and
new ones arise between them and the new Government. The manner
in which this is to be effected is ordinarily the subject of treaty.
The contracting parties have the right to contract to transfer and
receive, respectively, the allegiance of all the native-born citizens;
but the naturalized citizens, who owe allegiance purely statutory,
are, when released therefrom, remitted to their original status.
Tobin V. Walkinshaw, McAllister, 186.
" In truth, we must divide the people of the United States into two
classes: those in the full enjoyment of all the rights of citizenship,
and those deprived of some or all of those rights ; and then we must
distinguish between such of the inhabitants of the country as are
citizens, and such as are subjects only, and whether capable or not of
becoming citizens, yet not so at the present time. I allude, in the
latter case, to the Indians, who, in some of the States, are the subjects
of the State in which they exist, but who are in general subjects of
the United States ; and to the Africans or persons of African descent,
who, being mostly of servile condition, are of course not citizens,
but subjects, in reference as w^ell to the respective States in which
they reside as to the United States."
Gushing, At. Gon., Oct. 31, 1850, 8 Op. 139, 142.
Many illustrations "from the practice and legislation of Great Britain and
other foreign countries might be adduced to show that the status
of the islanders as nationals, but not as citizens, has in it nothing
anomalous, and that it is far more logical, as well as more just and
expedient, to consider them as such rather than to treat them as
§ 379.] COLLECTIVE NATURALIZATION. 313
aliens. The Attorney-General of the United St.ites in his argument
in the Insular Cases suggested and al)ly maintained that the island-
ers were American subjects. That term, however, is one which is
foreign to our legal system and alien to our trend of political
thought. The term ' national ' fits the case more accurately and
bears with it no unpleasant inference of political inferiority or servi-
tude to an individual." (Frederic R. Coudert, jr., Our New Peoples:
'Citizens, Subjects, Nationals, or Aliens ; Columbia Law Review,
January, 1903.)
On the admission of a State into the Union, as has been done in
various cases, " a collective naturalization may be effected in accord-
ance with the intention of Congress and the people applying for
admission."
Opinion of Fuller, C. J., concurred in by .Tustlces Blatchford, Lamar, and
Brewer, Boyd v. Thayer, 143 U. S. 135, 170, citing Minor v. Happersett,
21 Wall. 102, 107.
See also State v. Boyd, 31 Neb. 082.
As to the annexation and admission of Texas, see infra, § 103.
Inhabitants of the Territory of Nebraska at the time of its admis-
sion as a State into the Union, who had jjreviously declared their
intention to become citizens of the United States, were by the
enabling act admitted to such citizenship.
Bahuaud v. Bize (1901), 105 Fed. Rep. 485, citing Boyd v. Thayer, 143
U. S. 135.
By Art. III. of the treaty of April 30, 1803, by which France
ceded Louisiana to the United States, it was stipu-
lated that " the inhabitants of the ceded territory "
should " be incorporated in the Union of the United States, and
admitted as soon as possible, according to the principles of the Fed-
eral Constitution, to the enjoyment of all the rights, advantages and
immunities of citizens of the United States."
By this stipulation, citizenship of the United States was conferred
on the inhabitants of the territory.
Opinion of Fuller. C. J., concurred in by .Justices Blatchford, Lamar, and
Brewer. Boyd r. Thayer, 143 U. S. 135, 104, citing Dred Scott r. San-
ford, 19 How. 393, 525; Desbois' Case, 2 Martin, 185; United States
V. Laverty, 3 Martin, 733.
As to the annexationof Louisiana, see supra. § 101.
All persons, inhabitants of the Territory of Orleans, at the time of
its admission as a State into the Union, became thereby citizens of
Louisiana and of the United States. Desbois' Case, 2 Martin, 185;
United States i\ Laverty, 3 Martin, 733.
Henuen's La. Dig., ed. 1801, I. 240.
314 NATIONALITY. {§ 370.
" This form relates only to those born in some foreign country
who claim to be citizens solely by virtue of a residence in Louisiana
at the time of the cession, or at the period when the Constitution
was adopted, leaving the cases of citizenship by nativity in the
Unitetl States, in Louisiana, before the cession, with residence after-
wards, and by naturalization, to be proved in such other manner
as may be legal and satisfactory to the public agent whose protec-
tion is required."
Mr. Livingston, Sec. of State, to Mr. Robertson, consul at Tampico, June
29, 1831, enclosing a notice in regard to the issuance of evidences
of citizenship. (3 MS. Desp. to Consuls, 341.)
By Art. VI. of the treaty of Feb. 22, 1819, by which certain cessions
of territory were made by Spain to the United States,
ea y. -^ ^^^^ stipulated that the " inhabitants " of the ceded
territories should be " incorporated in the Union of the United States,
as soon as may be consistent with the principles of the Federal Con-
stitution, and admitted to the enjoyment of all the privileges, rights,
and immunities of the citizens of the United States."
See, as to the effect of this stipulation, Am. Ins. Co. v. Canter, 1 Pet. 511 :
Contested Elections, 18.34, 1835, 38 Cong. 2 sess. 41 ; Boyd v. Thayer,
143 U. S. 135, 108.
As to the annexation under the treaty of 1819, see supra, § 102.
All persons who were citizens of Texas at the date of annexation,
viz, December 29, 1845, became citizens of the United
Annexation of gtates by virtue of the collective naturalization ef-
fected by the act of that date.
Akerman, At. Gen.. 1871, 13 Op. 397.
As to the annexation of Texas, see supra, § 103.
A person born in Texas and removing therefrom before the separa-
tion from Mexico remains a citizen of Mexico, though a minor when
the separation took place.
Jones V. McMasters, 20 How. 8.
Inhabitants of Texas who, at the time of the annexation, were not
citizens thereof, could thereafter become citizens of the United States
only by the usual process of naturalization. This rule was held to
apply to a minor alien, a German subject, residing in Texas at the
time of the annexation, who, although he was separated from his
parents, had not become a citizen of the State; and, as it did not
appear that he was afterwards naturalized as a citizen of the United
States, it was held that he could not assert a claim in that character.
Contzen v. United States (1900), 179 U. S. 191, affirming the judgment of
the court below.
§379.] COLLECTIVE NATURALIZATION. 315
The constitution of Texas i)rovitles tliat " all persons (Africans, the
descendants of Africans, and Indians excepted) who were residing
in Texas on the day of the declaration of independence shall be con-
sidered citizens of the reinil)lic." The date of the declaration of
independence was March 2, 1836. Held, that an alien who became
a resident in 1845, a few months before the annexation of Texas to
the United States, did not thereby become a citizen of the United
States. (Contzen v. United States, 33 Ct. CI. 475.)
By section 4 of the act of Congress of April 30, 1900, " to provide
a government for the Territory of Hawaii," " all per-
Annexation of i •,• ^ ^^i t-> it j! tt
„ .. sons who were citizens or the Kepublic or Hawaii on
Hawaii. *^
August 12, 1898," the day of the formal transfer of
sovereignty to the United States, were " declared to be citizens of the
United States and citizens of the Territory of Haw^aii ; " and it was
further provided that " all citizens of the United States resident in
the Hawaiian Islands who were resident there on or since August 12,
1898, and all the citizens of the United States who shall hereafter
reside in the Territory of Hawaii for one year, shall be citizens of the
Territory of Hawaii."
31 Stat. 141.
By section 100 of the same act, the naturalization laws of the United
States are extended to Hawaii.
Under sec. 4 of the act of April 30, 1900, Chinese persons born or
naturalized in the Hawaiian Islands previously to Aug. 12, 1898,
and who have not since lost their citizenship, are citizens of the United
States; and the wife and children of such persons are entitled to
enter the United States by virtue of the citizenship of the husband
and father.
Griggs, At. Gen.. .Tan. Ifi, 1001, 23 Op. .345; Griggs. At. Gen., .T:in. IG. 1901,
23 Op. .352.
This opinion is followed in Mr. Ilay, Sec. of State, to Mr. Conger, min. to
China, Dec. 21, 1901, For. Rel. 1901. 130-1.32.
By Art. IX. of the treaty of peace between the ITnited States and
Spain of Dec. 10, 1898, it was provided that ''the
Porto Bico and the ••! •!> i Ti- ij. ij^i ^- • i i -j.
„^.,. . Civil riglits and political status or the native inhal)it-
Fbilippines. T i • • i i ^ • ^
ants of the territories hereby ceded to the United
States shall be determined by the Congress."* Pending legislation by
Congress on the subject, it was held that native inhabitants of Porto
Rico temporarily sojourning abroad might be registered as such in
the legations and consulates of the Thiited States, and were when so
registered entitled to " official protection " " in all matters where a
citizen of the United States similarly situated would Ix^ entitled
thereto," care being taken to have it appear that they were " protected
.8a.'6 NATIONALITY. i[§ 379.
as native inhabitants of Porto llico and not as citizens of the United
States."
Mr. Hay, Sec. of State, to the diplomatic and consular officers of the
United States, circular. May 2, 1809, For. Rel. 1!)()0, 81M.
See Mr. Hay, Sec. of State, to Mr. Miranda. .Tune 10, lSt)0, 2:}7 MS. l>oni.
Let. 40(5; Mr. Cridler, 3d Assist. Sec. of State; to Mr. Macallister, No.
4.3, April 14, 1899, 1(50 MS. Inst. Consuls, (530 ; Mr. Cridler to Mr.
.Tohnson. No. 50, Auj;. 23, 1899, 109 MS. Inst. C^onsuls, .38.
Under this circular, native inhabitants of Porto Rico were entitled to the
official intervention of the Unitetl States in respect of losses sus-
tained during x'evolutions in Venezuela. (Mr. Hay, Sec. of State, to
Mr. Loomis, min. to VenezAiela, No. 314, Dec. 23, 1899, 4 MS. Inst.
Venezuela, 080.)
The circular of May 2, 1899, was applicable to Spain. (Mr. Hay, Sec. of
State, to Mr. Storer, min. to Spain, No. 182, .Tune 4, 1900, MS. Inst.
Spain, 28.) See supra, p. 29.j.
While Porto Rico, after annexation, and pending legislation by
Congress, was under military government, it seemed to be unobjection-
able, so far as international relations were concerned, for the military
commander to offer to foreign residents, identified by domicil or busi-
ness with local interests', an opportunity to vote at municipal elec-
tions; but until Congress should have determined, pursuant to the
treaty of peace, the political status of the native inhabitants of the
island, and have provided in substance and form for their acquisition
of citizenship, it did not appear to be within his province to establish
any formality, directly or indirectly, contemplating the future nat-
uralization of foreigners residing there.
Mr. Hay, Sec. of State, to See. of War, Jan. 27, 1900, 242 MS. Doni. Let.
430.
See, also, Mr. Hay, Sec. of State, to Mr. Cambon, French amb., April 10,
1900, No. 294, MS. Notes to French Leg. XL 3.3.
" This Department concurs in the view expressed in the communi-
cation of the Secretary of State and Government of Cuba that, under
international law and the treaty of peace with Spain [of Dec. 10,
1898], the native inhabitants of Puerto Rico ceased to be Spanish
subjects upon the ratification of the treaty."
Mr. Hay, Sec. of State, to Sec. of War, Jan. 29, 1900, 242 MS. Dom. Let.
443.
The treaty of Dec. 10, 1898, did not make the inhabitants of the
ceded territory citizens of the United States.
Goetze v. United States, 103 Fed. Kep. 72.
But they ceased to be " aliens," in the sense of the immigration
• laws.
Gonzales v. Williams (1904), 192 U. S. 1, reversing In re Gonzales, 118
Fed. Rep. 941.
§ 379.] COLLECTIVE NATURALIZATION. 317
By the act of April 12, 1900, in relation to the government of
Porto Rico, all inhabitants of the island continuing to reside therein,
who were Spanish subjects on April 11, 1899 (the day of the exchange
of ratifications of the treaty of cession), and who then resided in
Porto Rico, and their children subsequently born, were declared to
be " citizens of Porto Rico, and as such entitled to the protection of
the United States," except such as should have elected to preserve
their allegiance to the Crown of Spain on or before April 11, 1900,
in conformity with Art. IX. of the treaty of cession.
" The undisputed attitude of the executive and legislative depart-
ments of the Government has been and is that the native inhabitants
of Porto Rico and the Philippine Islands did not become citizens of
the United States by virtue of the cession of the islands by Spain by
means of the treaty of Paris. It was not the intention of the com-
missioners who negotiated the treaty to give those inhabitants the
status of citizens of the United States. The act for the temporary
government of Porto Rico did not confer upon the native inhabitants
of that island Federal citizenship, but denominated them citizens of
Porto Rico."
Griggs, At. Gen., Jan. 23, 1901, 23 Op. 370.
" Passports are issued by the Department to persons entitled
thereto, declaring that they are citizens of Porto Rico, and as such
entitled to the protection of the United States."
Mr. Adee, Act. Sec. of State, to Mr. Vilas, Aug. 30, 1000, 247 MS. Dom.
Let. 448.
"A Porto Rican is entitled under the law to the fullest protection.
The legation should see that the applicant enjoys every right and
that no obstacle be placed in the way of his contemplated departure
from Chile for Porto Rico."
Mr. Hill, Act. Sec. of State, to Mr. Lenderinli, charge in Chile, April 29,
1901, For. Rel. 11X)1, 32.
It will be observed that natives of the Philippines Avere not men-
tioned in the circular of May 2, 1899, supra. They Avere not so
included because the question Avas complicated in those islands by the
existence of native insurrection. In the case, hoA\'ever, of tAvo young
Filipinos, aged 15 and 14, attending school in Switzerhmd, who bore
a " cedula personal " as citizens of Manila temporarily residing in
that country, the legation at Berne AA-as authorized to state " that
they are natiA^es of the Philippine Islands temporarily residing in
SAvitzerland, and as such are entitled to the protection of the United
States."
Mr. Ilay. Sec. of State, to Mr. Lelslmian. luin. to Switzerland, l>ec. 2S,
1900, For. Rel. 1900, 905.
318 NATIONALITY. [§380.
Pending legislation by Congress, it was held l)y the Department of
State that Filipinos were not subject to the extraterritorial judicial
jurisdiction of United States consuls in China.
Mr. Cridler, Third Assist. Sec. of State, to Mr. Johnson, consul at Anioy,
No. <«, July 2.3, 1900, 173 MS. Inst. C'onsuls, 44(5; to Mr. Gooduow,
consul gen. nt Shanghai, No. 205, July 24, 1900, 173 MS. Inst. Con-
suls, 4G5; to Mr. Johnson, consul at Amoy, No. G5, Aug. 20, 1900, 174
MS. Inst. Consuls, 2.
" With reference to the question asked in two memoranda from the
British embassy, dated May 26 and August 13, 1900, Avhether Fili-
pinos regularly shipped on British merchant vessels are regarded by
the Government of the United States as citizens of the United States,
so that when the British vessels upon which they have shipped touch
at ports of the United States the Filipino seamen have the right to
demand to be discharged although the voyage for which they have
shipped may not be ended, the Attorney-General, to whom the ques-
tion w^as referred, holds, in his opinion dated February 19, 1901, that
seamen born in the Philippine Islands ' are not citizens of the United
States within the meaning of any statutes concerning seamen or any
other statute or law of the United States.' "
Memorandum of the Department of State, Feb. 28, 1901, For. Kel. 1901,
200.
In a previous memorandum of July 19, 1900, on the same subject, the
Department of State said: "A man may be a citizen in one sense of
the word, or from certain points of view, or for certain purposes, yet
not in every sense nor for all purposes." (For. Rel. 1901, 199.)
By the act of July 1, 1902, all inhabitants of the Philippine Islands
continuing to reside therein who were Spanish subjects on April 11,
1899, and their children subsequently born, are declared " to be
citizens of the Philippine Islands and as such entitled to the protec-
tion of the United States, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with the pro-
visions of [Art. IX. of] the treaty of peace."
32 Stat. I. 692.
(2) PROVISION FOB INDIVIDUAL ELECTION.
§ 380.
By the treaty of peace between the United States and Mexico,
Feb. 2, 1848, Art. VIII., it was stipulated that Mexi-
Treaty of Ouada- ^^^^ ^^j^^ preferred to remain in the territories ceded
upe 1 a go. ^^ ^j^^ United States might " either retain the title
and rights of Mexican citizens, or accjuire those of citizens of the
United States," but that they should be obliged " to make their elec-
§ 380.] COLLECTIVE NATURALIZATION. 319
tion " within a year from the date of the exchange of ratifications of
the treaty, and that those who should remain after the year without
having " declared their intention to retain the character of Mexi-
cans," should be " considered to have elected to become citizens of
the United States."
By Art. IX. it was stipulated that Mexicans who should not pre-
serve their Mexican nationality should be " incorporated into the
Union of the United States, and be admitted at the jDroper time (to
be judged of by the Congress of the United States) to the enjoyment
of all the rights of citizens of the United States according to the
principles of the Constitution."
See, as to the annexation of the Mexican territories, supra, §§105, 106.
■ As to the effect on the citizenship of the inhabitants, see McKinney v.
Saviego, 18 How. 235 ; Cryer v. Andrews, 11 Tex. 170 ; Barrett v.
Kelly, 31 Tex. 47G ; Boyd v. Thayer, 143 U. S. 135.
As to the declaration of intention to elect American citizenship under the
treaty of 1848, see Quiutara v. Tomkins, 1 N. M. 29 ; Carter v.
Territory, 1 N. M. 317.
" It is possible that there may be Mexicans in Upper California,
who were there at the period of the conclusion of the treaty, who
may have availed themselves of the privilege of retaining their
nationality Avhich that instrument secured to them. There are no
doubt others who were tliM-e at that time who, voluntarily or involun-
tarily, have become citizens of the United States, pursuant to the
terms of the article referred to. It is presumed that it is not in
behalf of the latter that Mr. Larrainzar solicits the protection of
this Government."
Mr. Marcy, Sec. of State, to Mr. Larrainzar, April 28, 1853, MS. Notes to
Mex. Leg. VI. 348.
There is no provision in the acts of Congress relative to the ad-
mission of California as a State, whereby alien residents of the terri-
tory were admitted to citizenship on its admission to the Union.
Mr. Hunter, Act. Sec. of State, to Mr. Nones, May 12, 1852, 40 MS. Dom.
Let. 123.
" The inhabitants of the ceded territory, according to their choice,
reserving their natural allegiance, may return to Rus-
Alaskan cession. -ii • xi i j. •-£ ii i i i j: j.
sia Within three years; but ir tliey should prefer to
remain in the ceded territory, they, with the exception of uncivil-
ized native tribes, shall be admitted to the enjoyment of all the rights,
advantages, and immunities of citizens of the United States. . . .
The uncivilized tribes will be subject to such laws and regulations as
320 NATIONALITY. [§ 380.
the United States may from time to time adopt in regard to aboriginal
tribes of that country."
Art. III., treaty between the United States and Russia, Murcll 30, 1867,
(•odinj; AJaslva to tlie United States.
As to tlie cession of Alaslca, see supra, § 107.
" Who are citizens of tlie United States in Alaslia, under article 3 of the
treaty of 1807, may be a didicult question to determine. The treaty
furnishes the law, but the ditnculty, if any, will arise in tlie api)llca-
tion of it." (Deady, J., Kie v. Uniteil States (1880), 27 Fed. Ilepw
351.)
" Whether any proceeding in tlio nature of naturalization is requisite,
and, if so, where it is to be had, are l^gal (juestions which this Depart-
ment nuist refer to your own investigation. ... If the original
Russian sul)ject desires a passport for the purpose <»f returning to
Russia, and has not been naturalized l)y the order of some competent
court, the question wliether lie brings liimself within tlie terms of the
treaty as one of those who ' prefer to remain in the ceded territory '
will deserve serious consideration." (Mr. J. C. B. Davis, Act. Sec. of
State, to Mr. Solomon, July 5, 1870, 85 MS. Dom. Let. 227.)
H., a resident of Alaska at the time of annexation, some months
afterwards left the country and took up his residence in Russia,
where, in order to qualify himself to contract marriage with a lady in
the titled class, he bought an estate, the possession of which he sup-
posed to carry with it the title of " Prince '' ; but, after he became
engaged to the lady in question he was denounced to the police, by
the person who had sold him the estate, as the claimant of a title to
which he had no right. He received a w^arning on the subject, and,
disregarding it, was thrown into prison, where he was afterwards
detained on suspicion of being an escaped Siberian convict. It seems
that a passport was issued to him in 1872, just prior to. his arrest, by
the American legation at St. Petersburg, " on the faith of a passport
granted him in Alaska." It was " doubtful if American citizenship
was ever acquired " by II. ; " but, supposing it true that he had been
naturalized, it is plain that his course in Russia . . . was of a
nature to expatriate him, and to render him again a subject of the
Russian Empire."
Mr. Evarts, Sec. of State, to Mr. Stoughton, niin. to Russia, No. 33, Oct.
29, 1878, MS. Inst. Russia, XVI. 05.
" By Article II. of the treaty of Frankfort, of May 10, 1871, be-
tween France and Germany, it was provided that
ea y 0 ran . pp^.j^^i^ subjects born in Alsace-Lorraine, and actually
domiciled therein, who desired to preserve their French nationality,
should be allowed till October 1, 1872, to declare their intention to do
so, before competent authority, and to remove their domicil to
France."
Mr. Moore, Asst. Sec. of State, to Mr. Schmidt, May 11, 1898, 228 MS.
Dom, Let. 414.
§ 380.] COLLECTIVE NATURALIZATION. 321
Art. IX. of the treaty of peace between the United States and
Spain, of Dec. 10, 1898, provides: "Spanish sub-
Treaty with Spam, jects natives of the Peninsula,'' residing in the ceded
or relinquished territory, who remain in such terri-
tory, " may preserve their allegiance to the Crown of Spain by mak-
ing, before a court of record, within a year from the exchange erf the
ratification of this treaty, a declaration of their decision to preserve
such allegiance; in default of which declaration they shall l)e held to
have renounced it and to have adopted the nationality of the territory
in which they may reside."
The phrase, " Spanish subjects, natives of the Peninsula,"' includes
natives of the Balearic and Canary Islands, the word " Peninsula "
" being taken to refer to the political kingdom and not to the geo-
graphical territory."
Mr. Hay, Sec. of State, to Duke of Arcos. Spanish inin.. Nov. 27, 1899.
MS. Notes to Span. Leg. XI. 465. See, to the same effect, Mr. Hay,
Sec. of State, to Mr. Storer, min. to Spain, No. 1U2, Nov. 29, 1899,
MS. Inst. Spain, XXII. 643.
See Mr. Hill, Act. Sec. of State, to Sec. of War, Oct. 6, 1899, 240 MS.
Dom. Let. 404.
The phrase in question does not include " Spanish subjects born
of Spanish parents in Venezuela and Chile."
Mr. Hay, Sec. of State, to Sec. of War, April 10, 1900, 244 MS. Dom. Let.
268.
Obviously it does not include natives of Cuba. (Mr. Hill, Act. Sec. of
State, to Mr. Storer, min. to Spain, No. 297, Feb. 21, 1901, MS. Inst.
Spain, XXIII. 108.)
July 11, 1899, the United States military authorities in Cuba
issued an order stating that Spanish subjects, natives of the Peninsula
of Spain, who resided in Cuba and were desirous of i)reserving their
Spanish nationality, might declare their intention before the mayor
of the municipality in which they lived within one year from April
11, 1899. The order contained instructions as to the form in which
the declaration should be draAvn up. A similar system of registration
was put in force in Porto Rico and the Philippines. On request
of the Spanish minister at Washington, the military authorities
in Cuba were instructed to send lists of the registration to the con-
sulate-general of Spain at Havana. In December, 1899, the Span-
ish minister at AVashington requested an extension of the time pro-
vided by the treaty, on the ground that no effective machinery
existed either in Cuba, Porto Rico, or the Philippines for recording
the options of Spanish subjects. The Department of State replied
that it was not in the power of the Executive to extend the treaty
period, and that the Secretary of War had stated that as the declara-
H. Doc. 551— vol 3 21
322 NATIONALITY. [§ 380.
tion of election could be made "■ l)efore any court of record, it is in
the power of Spanish subjects to avail themselves of the privilege
granted by the treaty at any time within the period j)rescrilx'!d." The
Spanish minister, however, took the ground that, as the treaty pro-
vided that the declaration might Ix^ made " within one year after the
exchange of the ratifications," it was the evident intention of the
contracting parties to allow an eiTective year, and that as the order of
the military authorities in Cuba was issued only on July 11, 1890,
and the registration offices were opened only on the 18th of the same
month, the full opportunity required by the treaty had not been
allowed in Cuba. He also stated that the corresponding order in
Porto Rico bore date August 21, but was not officially published until
the 13tli of the following month, while the registration offices were
not opened till some time later. In the Philippines the opportunity
had been even less, and he concluded that the then existing condition
of things Avas tantamount to an annulment of the privilege granted by
the treaty. The Department of State, in its reply, pointed out the
ami:)le opportunity afforded to all Spaniards in Cuba and in Porto
Rico for making the declaration, the United States having thrown
open the alcaldias of every town and hamlet for the purpose, instead
of limiting the registration to courts of record, thus furnishing to each
declarant the facility of registration almost at his door. The creation
of a special machinery for registration was a special favor shown by
the United States, there being no requirement of it in the treaty, so
that the whole conventional opportunity had been fully given lx)th
in Cuba and in Porto Rico. As to the Philippines, the case was
thought to be different, and it was considered just that the period
should be extended by a new treaty for six months from April 11,
1900, unless it should be proved that before that time all the Peninsu-
lar Spaniards residing in those islands had in fact had a full oppor-
tunity to make the optional declaration which the treaty allowed.
For. Rel. 1899, 715, 716, 717-718, 719-720.
By a protocol signed at Washington March 29, 1900. the period of a year
fixed by Art. IX. of the treaty of peace between the United States
and Spain of Dee. 10, 1898, during which Spanish sulijects, natives of
the Peninsula, residing in the territory ceded or relinquished by
Spain, might declare their intention to retain their Spanish nation-
ality, was extended as to the Philippines for six months from April
11. 1900.
This protocol was duly ap{)roved by the Senate. (Mr. Hay. Sec. of State,
• to Sec. of War, April 28. 19(K), 244 MS. Dom. Let. .".(;(;.)
"An exanfination of Article IX. of the treaty of Paris shows that
Spaniards residing in the ceded or relinciuishetl territories were to
have a year within which to make up their minds whether to pre-
serve— not acquire — Spanish nationality, and I think there is no
doubt that a Spaniard born in the Peninsula who died in Cuba
before the expiration of that year was, in the contemplation of the
§ 380, I COLLECTIVB NATURALIZATION. 323
treaty, a Spanish subject at the time of his death." (Griggs, At.
Gen., April 26, 1900, For. Rel. 1901, 226, 227.)
" Article 1. Natives of the territories ceded or relinquished by
Spain by virtue of the treaty of peace with the United
Eoyai Decree, May States of the 10th of December, 1898, who at the date
' ■ of the exchange of ratifications of said treaty were
residing in said territories and have lost their Spanish citizenship (la
nacionalidad espaiiola), may recover it in accordance with the provi-
sions of article 21 of the civil code prescribed for Spaniards who have
lost their nationality by acquiring citizenship in a foreign country.
" Nevertheless, persons referred to in the paragraph above, who
were holding public office, civil or military, employment, or appoint-
ment by nomination of the Spanish (lovernment, and who continued
to exercise their official functions in the service of Spain, shall be held
to haA'e retained their Spanish nationality.
" Art. 2. Natives of the territories ceded or relinquished, Avho at the
date of the exchange of ratifications of the treaty of the 10th of
December, 1898, as aforesaid, were residing outside of the country of
their birth, and who at the time of the promulgation of this decree
are found to be inscribed in the registers of the legations or consulates
of Spain abroad, or who were holding public office under the Spanish
administration, or who Avere domiciled within the actual dominions
of Spain, shall be held to have retained their Spanish citizenship,
unless within the period of a year from this date they shall make an
express declaration to the contrary before the proper authorities.
" The persons referred to in the paragraph above, who at the time
of the promulgation of this decree do not fall within any of the cate-
gories above mentioned, have lost their Spanish nationality. They
may recover the same in accordance with the provisions of the above-
mentioned article 21 of the civil code.
" Art. 3. Spanish subjects born outside of the territories ceded or
relinquished, who were residing therein at the date of the exchange
of the ratifications of the treaty of the 10th of December, 1898, and
would have lost their Spanish citizenship by not exercising within the
proper period the right of option set forth in article 9 of said treaty,
may recover the same by leaving said territories and complying with
the formalities established in the second paragraph of article 19 of
the civil code.
"The persons referred to in the present article who, contrary to
their wishes, have not been permitted to inscril)e themselves as Span-
iards in the municipal registers, may do so within the period of one
year from this date before the Spanish consular registrars, making a
note of the inscription which was denied to theui in the nnmicipal
registrars. Those who fulfill this requirement shall be held to have
324 NATIONALITY. [§ 380.
retained without interruption their Spanish citizenship. Neverthe-
less, the persons referred to in the first paragraph of this article who
reside in the ceded or relinquished territories by reason of public
office, military or civil, employment, or appointment, the functions of
which they were discharging at the time and which they continued
to discharge in the service of Spain, shall be held not to have lost their
Spanish citizenship.
" Art. 4. The persons referred to in this decree who, subsequently to
(he exchange of ratifications of the treaty of peace with the United
States, shall have held public office or taken part in the municipal,
provincial, or general elections of the territories ceded or relinquished
by Spain, or who shall have exercised in said territories any of the
rights j^ertaining to citizenship therein, shall not be granted an option
in favor of or a recovery of their Spanish citizenship, except as pro-
vided in article 23 of the civil code."
"Art. 5. Spanish citizenship retained or recovered by virtue of the
provisions of this decree can not be set up as against the governments
or authorities of the ceded or relinquished territories in which the
parties concerned were born or reside, except by the express consent
of said governments or by virtue of a stipulation in an international
treaty.
"Art. 6. The persons who (in accordance with the prescriptions of
this decree) would have lost their Spanish citizenship and conse-
quently the right to draw any retiring fund or pension whatsoever,
whether the same may haveljeen actually granted or not, shall recover
said rights at the same time with the recovery of Spanish citizenship
in the following cases and subject to the following conditions:
" First. The payment of any retiring fund or pension necessarily
demands the residence of the beneficiary within the actual dominions
of Spain and submission to the regulations which govern or in the
future may govern said pensions.
" Second. All restorations or rehabilitations for the purpose of
<lrawing retiring funds or pensions must be preceded by an examina-
tion and revision of the claims upon which it might have been granted.
Said rehabilitation will be subjected in the various cases to the
following rules :
"A. The persons referred to in the first paragraph of article 1 and
m the second paragraph of article 2 of this decree nuiy draw the retir-
ing funds or pensions to which they .are entitled, provided they
recover Spanish citizenship within the period of one year from this
0 Article 23 of the civil code provides that " any Spaniard vi'ho loses his nation-
ality by accepting enii)loynient of any other Government, or by entering the
firmed service of a foreign power without the King's permission, shall not
recover Spanish citizenship without previously obtaining the royal author-
ization."
§ 380.] COLLECTIVE NATURALIZATION. ^25
date; the right to draw said pension, however, commencing from the
date of the presentation of a petition requesting the examination and
revision of their claims.
" B. Those persons referred to in the first paragraph of article 8
who within the period of two years shall recover Spanish citizenship
in the manner therein prescribed, shall be completely restored to the
enjoyment of their respective retiring funds or pensions.
"Art. 7. The persons referred to in article 4, no matter what be the
manner in which they may have recovered Spanish citizenship, shall
in no case be restored to the enjoyment of the retiring funds or
pensions to which they might have been entitled.
"Art. 8. The persons referred to in this decree who, in accordance
with the provisions of the same, shall have lost the right to any retir-
ing fund or pension whatsoever, shall, nevertheless, be entitled to
petition the Government to grant them, for special services rendered
to the cause of Spain, pensions as a reward therefor, in accordance
with the prescriptions of the law of the 12th of May, 1837, it being
further permissible in such a case to waive the residence in Spanish
territory which is prescribed as a condition to their enjoyment.
"Art. 9. The ministry of state, grace and justice, hacienda, and
gobernacion shall draw up the necessary provisions for the applica-
tion of this decree in their respective departments. Given at the
palace the 11th of May, 1901.
" Maria Christina.
" The president of the council of ministers,
" Praxedes Mateo Sagasta.
'''' Appendix.
" I. Article 19 of the civil code prescribes that children of a for-
eigner born in Spanish dominions who desire to acquire Spanish
citizenship shall, Avithin the year following their majority or emanci-
pation, make a declaration to that effect.
" Those who are in the Kingdom should make this declaration
before the official in charge of the civil registry of the town in which
they reside; they who reside in a foreign country, before one of the
consular or diplomatic agents of the Spanish Government, and they
who are in a country in which the Government has no agent, should
address the Si)anish minister of state.
" II. Article '21 provides that : 'A Spaniard who loses his citizen-
ship by acquiring naturalization in a foreign country, can recover it
on returning to the Kingdom by declaring before an official in charge
of the civil registry of the domicil which he elects that sucli is his
wish, in order that the official may make the corresponding inscrip-
tion therein, and by renouncing the protection of the flag of such
country.'' "
For. Kel. 1901, 475.
326 NATIONALITY. [§380.
In a report to the Queen Regent of the same date, accompanying the
royal decree. Premier Sagasta said:
" Since the 10th of December, 1898, when the treat" of peace with the
United States of America was signed, it has ijeen a subject of con-
stant preoccupation to the succeeding Spanish Governments to solve
in a just and tHpiitable way tlie iniix)rtant questions concerning the
nationality of the natives and inhabitants of the territories ceded
or relinquished by Spain arising in connection with the interpreta-
tion of tlie ninth article of tliat treaty. With this end in view the
former (Jovernnient entrusted the studj- of these inqwrtant questions
to a committee conqKjsed of learned functionaries from the minis-
tries of state, grace and justice, liacienda, and gobernaci6n, which
fulfilled its task bj' publishing a brilliant report wherein the various
delicate aspects of the question are treated with the greatest clear-
ness and accuracy.
" The Government, desirous of reconciling the interests of private indi-
viduals with its international obligations, without increasing unduly
the charges uiJon the national treasury, and at the same time attempt-
ing to harmonize the ix)litical and economical aspects of the question,
has come to the conclusion that while there can be no doubt as
regards the fact that natives and inhabitants of the territories ceded
or relinquished lost their Spanish citizenship the moment that the
sovereignty of Spain over those countries came to an end, neverthe-
less those persons who, while residing outside of the counti'y of their
origin, made a clear manifestation of their desire to retain their
Spanish citizenship, either by having themselves inscribe<l in a lega-
tion or consulate of Spain abroad, or by continuing to serve in the
administration, or by establishing themselves within the actual
dominions of Spain, deserve to be considered by the Government as
Spanish subjects so long as the acts which manifest their purpose
of retaining Spanish citizenship be not disavowed by the solemn
declaration of the party in interest made within a certain period
which will be fi'xetl for this purpose.
"A further ix)int of real importance is that in regard to the exact moment
when the fact of residing within or without the teiTitories ceded
or relinquished by Spain l)egan to be a determining factor. As to
this the Government takes the ground that it can be no other than
the moment at which the change of sovereignty was judicially
defined to have taken place, viz, the moment of the exchange of the
ratifications of the treaty of peace. Likewise it appears entirely
free from doubt that all the i)ei'sons who. while they may have been
born in the above-mentioned territories and living therein at said
date are. nevertheless, still discharging ofiicial functions by virtue
of apix)intuient or commission held from the Spanish Government,
should i)reserve their nationality.
" There remained another i)oint of great inq>ortance to be solved, viz. the
manner in which those who have lost their citizenship by not avail-
ing themselves of the opportunity provided in the first paragraph of
the nintli article of the treaty should recover the same, and nothing
can be more just than to facilitate the recovery of citizenship by
those who lost it in this maimer, and that they should recover it
by leaving said territories and fulfilling the requirements prescribed
in the second paragraph of article 19 (App. I., supra) of the civil
§ 381.] AMERICA]Sr NATURALIZATION. 327
code; provided, however, that said persons have not held public office
or taken part in the elections in the territories ceded or i-elinquished
by Spain, nor exercised therein any right pertaining to the new citi-
zenship since the extinction of the Spanish sovereignty, since such
acts would prevent their being recognized as Spanish subjects, unless
it be in the manner set forth in article 21 (App. II., supra) of the
civil code." (For. Rel. 1901, 474.)
The roj^al decree of Spain of May 11, 1901, in relation to the effect
of the treaty of peace of Dec. 10, 1898, on the citizenship of the
inhabitants of the territories thereby ceded or relinquished by Spain,
does not violate the rights of the United States or the provisions of
the treaty.
Opinion of Mr. Magoon, law officer. Division of Insular Affairs, approved
by the War Department, and accepted by the Department of State.
Magoon's Reports, 17.3.
IV. AMERICAN NATURALIZATIOX.
1. Regulated by Congress.
§381.
By the 14th Amendment to the Constitution of the United States
" all persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside."
Behrensmeyer r. Kreitz, 135 111. 591, 20 N. E. 704. See. also, as to the
law previously, Osborn v. United States Bank, 9 Wheat. 7.38.
The power to pass naturalization laws is exclusively vested in
Congress.
Ignited States r. Villato. 2 Dallas, 370; Chirac v. Chirac, 2 Wheat. 259:
Thurlow r. Massachusetts, 5 How. 573, 585 ; Norris r. Boston, 7
How. 518; (lolden r. Prince, 3 Wash. C. C. 314. Compare Collet r.
Collet. 2 Dall. 294 ; Dred Scott r. Sandford, 19 How. 393.
See the Legislative History of Naturalization in the United States. 177(1-
1795, by F. (4. B^ranklin, Ph. D., Ann. Report of the Am. Hist. Associ-
ation, 1JK)1, I. .301-317.
The following statutes of the United States relate to citizenship and
naturalization: March 2(i, 1790 (1 Stats, at Large, 103) ; January 29.
1795 (1 Stats, at Large, 414) ; June 18, 1798 (1 Stats, at Large, 5fi(>) ;
April 14, 1802 (2 Stats, at Large, 1.53) ; March 20, 1804 (2 Stats, at
Large, 292) ; March 3, 1813 (2 Stats, at Large, 811) : July .30. 1813
(3 Stats, at Large, ,53) : March 22. 1810 (3 Stats, at Large, 2.58) ;
May 20. 1824 (4 Stats, at Large. (i9) : May 24. 1828 (4 Stat;? at
Large, 310) : June 20, 1848 (9 Stats, at Large. 240) : February 10.
18.55 (10 Stats, at Large. 004) : July 17. 1802 (12 Stats, at I-arge.
597) : April 9. 1800 (14 Stats, at Large. 27) : July 27, 18(58 (15 Stats.
at Large, 223) ; sec, 5, June 17, 1870 (10 Stats, at Large, 154) ; July
328 NATIONALITY. [§382.
14, 1870 (10 Stats, at Large, 2.>4) ; sec. 29, .Tune 7. 1872 (17 Stats, at
Large, 2«'>8) ; Hevisetl Statutes, s«'<'tioiis 1t>!)2-2f)C)l, 21Cm-2174, 4075-
4078, 4740. 5424-5420; February 18, 1875 (18 Stats, at Large, 318) ;
February 1, 1870 (10 Stats, at Large, 2) ; sec. 14, May 0, 1882 (22
Stats, at Large, 01) ; .July 20, 1804 (28 Stats, at Large, 12.*?, 124).
See, as to naturalization, Behrensnieyer r. Kreitz, 1.35 111. .501.
" Our courts admit aliens to citizenship upon compliance with the require-
ments of our naturalization laws without regard to any claims upon
them of the country of their origin." (Mr. Hay, Sec. of State, to
Mr. Harris, min. to Austriii-IIungary, May 10, 10(X), For. Rel. 10(X>,
30, 31.)
By the act of April .30, 1000, to provide a government for the territory of
Hawaii, the naturalization laws of the United States were declared
to be applicable to persons in the islands.
See For. Rel. 1800> .387, for an act of the legislature of the Republic of
Hawaii, ai)proved June 15, 1890, " to prescribe the procedure in pro-
ceedings for naturalization of aliens."
2. Ck)MMITTED TO THE CoURTS.
§ 382.
Xaturalization is a judicial act, whicli must be performed by the
court.
The Acorn, 2 Abb. 434; Matter of Clark, 18 Barb. 444; McCarthy v.
Marsh, 1 Seld. (N. Y.) 203; Green r. Salas, 31 Fed. Rep. 100; In re
Coleman. 15 Blatch. 40(i, 420; In re An Alien, 7 Hill. 137; Behrens-
nieyer r. Kreitz, 135 111. 591, 20 N. E. 704; In re Bodek, 03 Fed. Rep.
813 ; Cowan i;. Browse, 93 Ky. 150.
As to the practice in the superior court of the city of New York, in 1870,
see Judge I'reedman to Mr. Evarts, Sec. of State, March 5, 1879,
MS. Misc. Let.
•' The executive branch of the Government can not prescribe the action
of any court on a given apidication." (Mr. Bayard, Sec. of State,
to Mr. Stuart, Sept. 9, 1885, 157 MS. Dom. Let. 93.)
The declaration of intention may be made before the clerk of the court.
(Act of Feb. 1, 1870, 19 Stat. 2.)
Residence in the United States 18 j^ears, and payment of taxes,
and voting, do not of themselves constitute citizenship of the United
States, which can be acquired only in the manner prescribed by the
naturalization laws.
Mr. Bayard, Sec. of State, to .Air. Arakelyan, May 20, 1885, 155 MS. Dom.
Let. 488.
Naturalization maj'^ be performed by " a circuit or district court
of the United States, or a district or supreme court of the Territories,
or a court of record of any of the States having conunon-law jurisdic-
tion, and a seal and clerk."
Rev. Stats. § 2105; Ex parte McKenzie (So. Car. 1897). 28 S. E. 4(58.
§383.] AMERICAN NATURALIZATION". 329
The St. Louis court of appeals, wliich has common-law jurisdiction, is
competent to naturalize aliens. (Levin v. United States (1904), 128
Fed. Rep. 820, G3 C. C. A. 470.)
It is not necessai-y that the State court should possess full commou-law
jurisdiction. (United States v. Power, 14 Blatch. 22.3, citing 8. Met.
HyS; 2 Curt. 98; 50 N. H. 245; 39 Cal. 98; 3 Pet. 433, 44G.)
But the mere fact that a court may he authorized to do certain
things that pertain to courts having common-law jurisdiction does
not suftice. (Ex parte Tweedy, 22 Fed. Rep. 84.)
The umnicipal court of Biddeford, Me., since it has no " clerk," is incom-
petent to grant naturalization. (In re Dean, 83 Me. 489, 22 Atl. Rep.
385.)
Certificates of naturalization issued by competent State courts are not
within the purview of the circular of Jan. 10, 1871, directing that
certificates of citizenship by State, municipal, or local officials are
to be treated as invalid. (Mr. Fish, Sec. of State, to Mr. Jay,
March 18, 1872, MS. Inst. Aust. II. 61.)
The State courts are not obliged to exercise the power conferred by
§2105. (In re Naturalization, 5 Pa. Dist. R. 597, 27 Pitts. li. J.
(N. S.) 121.)
The State legislatures may regulate the proceedings of the State courts
in such matters : e. g., by forbidding them to grant naturalization
within a certain time preceding an election (Rushworth r. Judges
(N. J.), 32 Atl. Rep. 743.) ; by forbidding any but certain courts
to do so. (In re Gilroy, 88 Me. 199, 33 Atl. Rep. 979.) See. also,
- Ryan r. Egan, 15(5 111. 224.
Courts in annexed territory do not possess power to naturalize till Con-
gress confers it. (Mr. Hay, Sec. of State, to Mr. Sewall, No. 99,
Dec. 21, 1899, ^IS. Inst. Hawaii, III. 48(5.)
The courts maintained by the ministers and consuls of the United
States, in countries where they exercise, by hnv and treaty, judicial
powei"s, are not authorized to naturalize aliens.
Mr. Gresham, Sec. of State, to Mr. Terrell, min. to Turlvcy, Nov. 2, 1893,
For. Rel. 1893, 701.
The process of naturalization nuist be ]ierformed in the United States.
(Mr. Frelinghuysen. Sec. of State, to Mr. Kasson. min. to (Jermany,
Jan. 15, 1885, For. Rel. 1885, 394, 395.)
'• 3. Persons Cai'Abi.k of Naturai,tz.\tiox.
§ 383.
By the acts of 1802 and 1824, only " free white persons " were
capable of naturalization. By the act of 1870, the benefits of the law
were extended to "aliens of African nativity and to persons of African
descent." The law, as consolidated in the Revised Statutes, thus
stands, embracing only '* white persons " and persons of African
descent.
Acts of April 14. 1802, 2 Stat. 153; May 20, 1824, 4 Stat. 09; July 14.
1870. 10 Stat. 254; Feb. 18, 1875. IS Stat. 318; Rev. Stats. § 2109. See
Moore, American Diplomacy, 193.
330 NATIONALITY. [§383.
Chinese, since they are neither of the " white " (Caucasian), nor of
the African, race, are not within the general statutes
Chinese. i ,. , , t -•
relatnig to naturalization.
In re Ah Ynp, 5 Sawyer C. C. 155, followed in Mr. Evarts, Sec. of State,
to Mr. Ilolconibe, No. 250, Oct. 20, 1878. MS. Inst. China, II. 574;
State V. Ah Chew, IG Nev. 50, 01; Mr. Olney, Sec. of State, to Mr.
Ritter, Sept. 20, 1895, 205 MS. Doni. Let. 8.
It may be observed that the courts In the United States possess no
inherent power to naturalize aliens, and therefore they can exercise
the power of naturalization only so far as it is given to them by
statute.
By the act of 1882, the courts are expressly forbidden to naturalize
Chinese.
Sec. 14, act of May 6, 1882, 22 Stat. 61 ; In re Hong Yen Chang, 84 Cal.
163 ; In re Gee Hop, 71 Fed. Rep. 274 ; Fong Yue Ting v. United
States, 149 U. S. 698, 716; Olney. At. Gen., 1894, 21 Op. 37; McKenna,
At. Gen., 1897, id. 581 ; Mr. Adee, Second Assist. Sec. of State, to Mr.
Wilson, April 20, 1898, 227 MS. Dom, Let. 483.
Art. 5 of the treaty between the United States and China, signed at
Washington, July 28, 18(38, commonly called the Burlingame treaty,
declared : " The United States of America and the P>mperor of China
cordially ivcognize the inherent and inalienable right of man to change
his home and allegiance." The language is similar to that used in the
act of July 27, 18(58, as to the right of expatriation.
Expatriation includes not only emigration, but also naturalization.
(Black, At. Gen., 9 Op. .'{56.)
A certificate of naturalization issued to a Chinaman is void on its
face.
In re Gee Hop, 71 Fed. Rep 274; In re Hong Yen Chang, 84 Cal. 163;
McKenna, At. Gen., 1897, 21 Op. 581. See, also. In re Yamashita
(1902), m Wash. 2.34, 70 Pac. Rep. 482.
As the act of 1882 forbids the naturalization of Chinese, and as
passports can be legally issued only to citizens of the United States,
the Department of State, which is bound to observe the law, declines
to recognize a certificate of naturalization of a Chinese person as a
basis for granting a passport.
Mr. Wharton, Act. Sec. of State, to Mr. Heitmann, Aug. (], 1890, 178 MS.
Dom. Let. 515; Mr. Blaine, Sec. of State, to Mr. Rockwell, Dec. 12,
1890, 180 id. 157 : Mr. Gresham, Sec. of State, to Mr. Ilein, Aug. 30,
♦ 1893, 193 id. 287.
The provision of section 4 of the act of Congress of April 30, 1900,
entitled "An act to provide a government for the Territory of Ha-
waii," that " all persons who were citizens of the Republic of Hawaii
on August 12, 1898, are hereby declared to be citizens of the United
f
§ 383.] AMERICAN" NATURALIZATION. 331
States and citizens of the Territory of Hawaii," applies to Chinese
persons who were citizens of the Republic of Hawaii by naturaliza-
tion at the time mentioned.
Mr. Hay, Sec. of State, to Mr. Conger, inin. to China, Dec. 21, 1901, ap-
proving an instruction of Mr. Conger to Mr. Goodnow, consul-
general at ShaTighai, Nov. 1. 1001, For. Rel. 1001, l.'?0-l,32.
This instruction is in conformity with the oi)inions of Griggs. At. Gen.,
tool, 23 Op. :U."), .3.^>2. and Knox, At. Gen., 1!K»1. 2.3 Op. 500.
For numerous instances of collective naturalization, see Boyd r. Thayer,
143 U. S. 135.
Naturalization has been refused to Japanese, on the ground that
they are not " white " persons.
other races.
In re Saito, 62 Fed. Rep. 12G, criticised in 28 Am. Law Rev. 818; In re
Yamashita (1902), 30 Wash. 2,34, 70 Pac. Rep. 482.
Burmese, being of the Mongolian race, are not capable of natural-
ization.
In re Po, 7 N. Y. S. 383, 7 Misc. 471.
The opinion was expressed that a native of Hawaii, being neither of the
" Caucasian " or white, nor of the African, race, was ineligible to
citizenship ; but it was also held that he did not possess sufficient
education and general intelligence to be admitted. (In re Kanaka
Nian, 6 Utah, 2.50, 21 Pac. Rep. 90.3.)
Native citizens of Mexico are capable of naturalization.
In re Rodriguez, 81 Fed. Rep. 337.
American Indians are not within the general statutes relating to
naturalization.
Elk V. Wilkins, 112 U. S. 04.
Nor is a person of half white and half Indian blood. (In re Caniille, G
Sawyer C. C. 541.)
Indians are capable of naturalization by special law or by treaty, and have
often been so naturalized. (Elk v. Wilkins, 112 IT. S. 04; Royd r.
Thayer, 143 IT. S. 135; Wiggan r. Conolly. 1<!3 U. S. 50.)
As to who are Indians, see Nofire v. United States, 104 U. S. (>57. 17
Supreme r\. Rep. 212: Stiff r. McLaughlin (Mont.). 48 Pac Rep- 2.32.
An Indian, though born in British Columbia, can not be admitted
to naturalization in the United States.
In re Burton (1000). 1 Alaska, 111.
"An alien woman may be naturalized under the laws of the United
States in the same manner and under the same con-
ditions that pertain to the naturalization of an
alien man. Citizenship does not involve the electoral (lualification.
332 NATIONALITY. [§384.
The question is so well settled and the instances of women having
been naturalized are so numerous that it is deemed imnecessary to
cite you any particular cases."
Mr. P^varts, Sec. of State, to Mr. Hinton, Oct. 19, 1877, 120 MS. Dom.
Let. 232.
When an alien who has made a declaration of intention " dies
before he is actually naturalized, the widow and the children of such
alien shall Ix^. considered as citizens of the United States, and shall
be entitled to all rights and privileges as such, upon taking the oaths
prescribed by law."
Rev. Stats. § 21G8 ; act of March 2G, 1804, 2 Stat. 292.
4. Usual Legal Conditions.
§ 384.
The ordinary conditions of naturalization in the United States are:
1. A declaration of intention to become a citizen made at least two
years prior to admission to citizenship.
2. An oath of allegiance, made at the time of admission, and
renunciation of prior allegiance.
3. Residence in the United States of at least five years, and in the
State or Territory where the court is held of at least one year.
4. Behavior as a moral and orderly person during such residence.
5. Renunciation of hereditary title, or order of nobility, if any.
Rev. Stat. § 21G.") ; Bebrensnieyer r. Kreitz, 135 111. 591.
An applicant should be requiretl to show that he possesses education and
intelligence sufficient to qualify him for the exercise of the rights
and the discharge of the duties of citizenship. (In re Rodriguez,
81 Fed. Rep. 337; In re Bodek, (53 Fed. Rep. 813; Rushworth r.
Judges, 58 N. J. L. 97; In re Conway, .30 N. Y. S. 8.35. 9 Misc. 0.52;
In re Lab's Petition, 3 Pa. Dist. R. 728; In re Xorthumberland
County Naturalizations, 18 Pa. Co. Ct. 270; In re Naturalization,
5 Pa. Dist. R. .597, 27 Pitts. L. .1. (n. s.) 121.
But an alien, otherwise qualified for naturalization, should not be ex-
cluded from citizensbij) because, when personally (|uestion(Hl by the
court, he shows great ignorance of the laws and Constitution of
the I'nited States. (Ex ])arte .Johnson (1901). 79 Miss. i\:M. citing
In re Rodriguez, 81 Fed. Rep. 3.5.5.)
Conviction of perjury, during residence in the United States, dis-
qualifies for admission to citizenshij). (In re Si>enser, 5 Sawyer
C. C. 19,5.)
An applicant for naturalization should produce a voucher other than
one who hal)ituall.v, and for conii)ensation. api)ears as such. (In re
Lipshitz, 97 Fed. Rep. 584.)
§ 384.J AMERICAN NATURALIZATION. 333
' By sec. 21T1 of the Revised Statutes (acts of April 14, 1802, 2 Stat.
153, and July 30, 1813, 3 Stat. 53), no alien who is a native citizen or
subject, or a denizen, of any country with which the United is at the
time of his application at war, " shall be then admitted to become a
citizen of the United States."
" Sec. 39. That no person who disbelieves in or who is opposed to
all organized government, or who is a member of or affiliated with
any organization entertaining and teaching such disbelief in or oppo-
sition to all organized government, or who advocates or teaches the
duty, necessity, or propriety of the unlawful assaulting or killing of
any officer or officers, either of specific individuals or of officers gen-
erally, of the Government of the United States or of any other
organized government, because of his or their official character, or
who has violated any of the provisions of this Act, shall be natural-
ized or be made a citizen of the United States. All courts and tribu-
nals and all judges and officers thereof having jurisdiction of natural-
ization proceedings or duties to perform in regard thereto shall,
on the final application for naturalization, make careful inquiry into
such matters, and before issuing the final order or certificate of
naturalization cause to be entered of record the affidavit of the appli-
cant and of his witnesses so far as applicable, reciting and affirming
the truth of every material fact requisite for naturalization. All
final orders and certificates of naturalization hereafter made shall
show on their face specifically that said affidavits Avere duly made
and recorded, and all orders and certificates that fail to show such
facts shall be null and void.
"' That any person who purposely procures naturalization in viola-
tion of the provisions of this section shall be fined not more than five
thousand dollars, or shall be imprisoned not less than one nor more
than ten years, or both, and the court in Avhich such conviction is had
shall thereupon adjudge and declare the order or decree and all certif-
icates admitting such person to citizenship null and void. Jurisdic-
tion is hereby conferred on the courts having jurisdiction of the trial
of such offense to make such adjudication.
" That any person avIio knowingly aids, advises, or encourages any
such person to apply for or to secure naturalization or to file the pre-
liminary papers declaring an intent to become a citizen of the United
States, or who in any naturalization proceeding knowingly procures
or gives false testimony as to any material fact, or who knowingly
makes an affidavit false as to any material fact required to be j^roved
in such proceeding, shall be fined not more than five thousand dollars,
or imprisoned not less than one nor more than ten years, or both.
"The foregoing provisions concerning naturalization shall not be
enforced until ninety days after the approval hereof."
Act of March 3, 1903, 32 Stat I. 1222.
334 NATIONALITY. [§§ 385, 386.
6. Declabation of Intention.
(1) usual bequibembnt.
§385.
An alien, in order to be admitted to citizenship, must " declare on
oath . . . two years, at least, jjrior to his admission, that it is
bona fide his intention to Ixicome a citizen of the United States, and
to renounce forever all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty, and, particularly, by name, to the
prince, potentate, state, or sovereignty of which the alien may be at
the time a citizen or subject."
Rev. Stats., §21(!5.
(2) EXCEPTIONS.
§ 386.
Under Revised Statutes, § 2167, the making of a declaration of
intention two years previously to admission to citi-
immigration during 2enship is not required of an alien who has resided
minority. . ^ . ^
continuously in the United States five years, three of
which immediately preceded his coming of age ; but he must " make
the declaration required therein [i. e., in R. S., § 2165] at the time of
his admission," and, besides, " declare, on oath, and prove to the sat-
isfaction of the court, that, for two years next preceding, it has been
his bona fide intention to become a citizen of the United States; and
he shall in all other respects comply Avith the hnvs in regard to
naturalization."
Minneapolis v. Reum, 56 Fed. Rep. 576. 6 C. C. A, 31. See also State t'.
Maedonald, 24 Minn. 48; Ex parte Cregg, 2 Curtis, C. C. 98; State
V. Whittemore, 50 N. H. 245 ; Butterworth's case. 1 Wood, & M. 32.3 ;
Ex parte Randall, 14 Phila. 224 ; Ex parte Merry, 14 I'hila. 212.
With regard to the making in this case, on admission to citizenship, of
the "declaration " required in R. S., § 2165. it is to be observed that
the substance of that de<'Iaration is that it is " bona fide " the indi-
vidual's intention to become a citizen, while, on admission to citizen-
ship, he in fact swears that he will supjxjrt the Constitution and
renounces his original allegiance.
Where naturalization is performed under § 2167. the coiu't should exact,
in addition to the ai)plicant's oath, substantial proof of the requisite
previous bona fide intention to l)ecome a citizen. (In re Bodek, (^
Fed. Rep. 813) ; the vague oral statement of a single witness is not
enough. (In re Fronascone, !)9 Fed. Rej). 48.)
By the act of April .30. 1900. a previous declaration of intenticm was
dispensed with in the case of persons ajtplying to be naturalized in
Hawaii, who had resided there at least five years prior to the taking
effect of the act. The act took effect Juue 14, lUOU.
§ 386.] NATURALIZATION : DECLARATION OF INTENTION. 335
" The object of this provision [§ 2167] is to enable a person Avho
has resided in the United States five years, but who, from the fact
of being a minor, has not been competent to make a dechiration, to
make his declaration at the expiration of such five years, and be at
once naturalized, provided that, at the time of his application, he is
of full age. In such case his declaration is to be made ' at the time
of his admission ' to citizenship, which is to be construed as meaning
simultaneously with his naturalization.
" It is thus intended to offer the franchise of naturalization to all
persons who, on arriving at full age, have resided in the United
States five years before that period. And even were the question
doubtful, it is, as you are well aware, a familiar rule that in the con-
struction of grants of franchises, that construction is to be adopted
which is most favorable to the persons for whose benefit the franchise
is to be granted — in duhio mitivsy
Mr. Kayard, Sec. of State, to Mr. von Alvenslebeii, German niiu., Mar. 15,
188('), MS. Notes to Germ. X. 421.
See also Mr. Oluey, Sec. of State, to Mr. Hengelmiiller, Aust.-IIung. min.,
Dec. 5, 1895, MS. Notes to Aust. Leg. IX. 288.
It should be observed that the certificate of a person duly admitted to
citizenship under § 21(i7 does not, or at any rate should not, recite
that a prior declaration of intention under % 21<>5 was made.
A person naturalized under § 21(i7 is within the provisions of the treaty
with Austria-Hungary. (Mr. Oluey, Sec. of State, to Mr. Ilengel-
miiller, Dec. 5, 1895, MS. Notes to Aust. Leg. IX. 288.)
An alien, 2i j^ears old or upward, who enlists in the "' armies of the
United States," regular or volunteer, and is thereafter
Service in Army, i i i t i i p. ^ • i
honorably discharged, may, after one year s residence
in the United States, become a citizen without a previous declaration
of intention.
Rev. Stats. § 2166 ; act of July 17, 1862, 12 Stat. .597. The word " armies "
does not cover enlistments in the Navy. (In re Bailey. 2 Sawyer
C. C. 2()0; In re Chamavas, 21 N. Y. S. 1C)4. Gontra, In re Stewart,
7 Robertson (N. Y.) (i35.)
For a case inider § 21C>(;, see Mr. I'relinghuyscn, Sec. of State, to Mr.
Lowell, min. to England, April 2.5, 1882. For. Rel. 1882. 2.80.
The mere facts of enlistment and discharge do not confer citizen-
ship, but only enable the individual to apply to a com])etent court for
naturalization.
Mr. Seward, Sec. of State, to ^Ir, Strieby, March :?1. 18(!8. 78 .MS. Doni.
Let. 2«>9; Mr. Blaine. Sec. of State, to Mr. O'Neil. .\ov. 15. 1S81. 1.89
MS. Dom. Let. .572; Mr. liill. Assist. Sec. of State, to Mr. Koch. Feb. 1.
1900, 242 MS. Dom. Let. 480; Berry v. Hull, 6 N. M. 648, .80 I'ac.
Rep. 936.
33fi NATIONALITY. [§ 387.
An alien, 21 ycHrs old or upwards, who has onlistod in the United
States Navy or Marine Corps, and lias thereafter
Service in Navy or ^^^^.^.^^^^ ^^.^ consecutive vears in the Navy or one enlist-
orps. ,j,^,,j|^ j,j (Ijj, Marine Corps, may be admitted to citizen-
ship without a ])revious declaration of intention.
Act of .Inly 2<!, 1804, 28 Stats. 128, 124.
'' See. 100. That for the purposes of naturalization under the laws
of the United States residence in the Hawaiian
Special case in Ha- i^|.,jj^|^ p^.j^^j. t„ jj^p taking effect of this act shall be
deemed ecpiivalent to residence in the United States
and in the Territory of Hawaii, and the requirement of a previous
declaration of intention to l)ecome a citizen of the United States and
to renounce former allegiance shall not apply to persons who have
resided in said islands at least five years prior to the taking effect of
this act; but all other provisions of the laws of the United States
relatingto naturalization shall, so far as applicable, apply to persons
in the said islands.*'
Act of Congress of April 30. IftOO, 31 Stat. 161.
This act took effect .Tune 14, 1900.
(3) DOES NOT CONFER CITIZENSHIP.
§ 387.
The declaration of intention to become a citizen does not confer
Judicial decisions, citizenship.
Minneai>olis r. Keiini. 56 Fed. Rep. 576, 6 C. C. A. 31 : In re Moses, 83 Fed.
Rep. 995; White r. White. 2 Met. (Ky.) 185; Dorsey t'. Brigham, 177
111. 250, 52 N. E. 303, 42 L. R. A. 809. See Settegast v. Schrinipf, 35
Tex. 323.
Nor make a person a citizen within the meaning of the Indian depreda-
tions act. (Valk r. United States, 28 Ct. CI. 241.)
The declaration may he made only in a court competent to naturalize: hut
by the act of Feb. 1, 1876, it may he made hefore the clerk. (19
Stat. 2.)
It must he made in the clerk's office or in oi)en court. (In i-e liangtry, 31
Fed. Rep. 879 ; Scola's Case. 8 Fa. Co. Ct. Rep. 34-1. See Andres v.
.ludge of Ciriniit Ct. (Mich.) 43 N. W. 857.)
It caiHiot he made hefore a court having no clerk or prothoiiotary. (Ex
parte Cregg, 2 Curtis, 98.)
As to the declaration of intention and the location of mining claims, see
Croesus Mining Co. r. Colorado Land Co., 19 Fed. Rep. 78.
The proi)er evidence of the declaration of intention is the certificate of
the fact. (State r. Rarrett, 40 Minn. 65; Berry r. Hull (N. M.) 30
I'ac. Rep. 9.36.)
The declaration of intention by the parent does not make citizens
of his children in case he dies before completing his naturalization.
§ 387.] DECLARATION OF INTENTION. 387
On the contrary, sec. 2168, R. S., provides for the regular admission
to citizenship of the widow and chiklren of such a person.
Mr. Frelinghuysen. Sec. of State, to Mr. Kasson, mln. at Berlin, Jan. 15,
1885, For. Rel. 1885, 394, 395.
" Passports are only granted to citizens of the United States, and
as Mr. Hoesli has not yet complied with the requisi-
Execative action. , • x ii i. v i.- i £ i.i tt -i. j
tions or the naturalization laws ot the United
States his request can not be acceded to. No reason is perceived,
however, why a consul of Switzerland should not give him a passport
to his own country, as his certificate only shows his intention of
becoming a citizen of the United States, and in that event to renounce
his allegiance to Switzerland, which has not yet been done."
Mr. Upshur, Sec. of State, to Mr. Triechel, Nov. IG, 1843, 33 MS. Dom.
Let. 386.
A foreigner who has merely declared his intention to become an
American citizen, without having carried that intention into effect, is
not an American citizen.
Mr. Buchanan, Sec. of State, to Mr. Campbell, consul at Havana, July 26,
1848, 10 MS. Desp. to Consuls, 473.
Dominie Madini, an Austrian subject by birth, after having taken
part in the Lombard revolution in 1848, came to the United States
and made a declaration of intention to become a citizen. " In the
year 1852, and before he had been long enough in this country to be
entitled to naturalization, he returned to Europe and settled in Switz-
erland, where he has since resided, for the alleged purpose of collect-
ing his fortune, which he has some prosj^ect of being al)le to do, and
then he designs to return and reside in the United States. ... It
is admitted that Madini has not been in the United States for some
years. . . . The intention he may entertain, and which it is under-
stood he has declared, to return to the United States may be changed
at pleasure, and besides, such an intention, however sincere, is too
remote and uncertain to found ui)on it any obligation for protection.
. . . By Madini's departure from the United States before he was
naturalized, becoming domiciled in another country and entering into
business there, he relinquished all the advantages, whatever they
might be, which he had gained by his temporary residence in the
United States and placed himself in relation to this Government on
a footing with those foreigners who have never been within its
territory."
Mr. Marcy, Sec. of State, to Mr. Fay, No. 37, March 22, lS.-)6. MS. Inst.
Switz. I. 47.
See, also, Mr. Marcy, Sec. of State, to Mr. Clay, min. to lV>ru, Dec. 28,
1854, MS. Inst. Peru. XV. 150.
H. Doc. 551— vol 3 22
338 NATIONALITY. [§ 387.
"The more declaration of intention to Ixvonie a citizen does not
absolve the party from the alleg^iance which he owes to the (jovern-
nient of tlie country from whicli he comes, and leaves him free to
apply to any consul of that Ciovernment in this country for a permit
to return from whence he came."
Mr. Cnss. Seo. of State, t«» Mr. Washl»in-iie, March I), 18.57, 4<> MS. Doiii.
Let. ."iTn.
See, to tlio same effe<t. Mr. Cass, Sec. of State, to Mr. Smith, June 29,
1859, r»<l MS. Dom. Let. 441.
" AVith regard to the other castas, which the noble earl [Lord
Derby I has brought forward, I have no knowledge of them, or I
would have taken j)ains to in<piire into each of them. I certainly
do not recollect the case of any person being called on to take the
oath of allegiance to the United States, except one in which there
was some (piestion with Lord Lyons, and that Avas the case of a gen-
tleman who had given notice of his intention to become a citizen of
the United States. Now, a person wishing to become a citizen of the
United States gives notice that at a certain time — within three
months — he intends to ask leave to become a citizen of the United
States, AVhen the time arrives he must not only take an oath of alle-
giance to the United States, but he nnist forswear all other allegiance,
more especially to Her Majesty Queen Victoria. (Laughter.) This
gentleman who was arrested made an appeal to the British Govern-
ment, and the answer of Mr. Seward to the remonstrance addres.sed
to him was, ' This gentleman has renounced all allegiance, especially
to Her Majesty Queen Victoria.' The matter was further inquired
into, and it was found that Mr. Seward was wrong in his fact —
(hear, hear) — that this gentleman had given notice that he intended
to iKH-ome a citizen of the ITnited States, and to forswear all alle-
giance to Her Majesty, but he still remained a British subject. He
had thus placed himself in a position in which he could not claim the
protection of either one government or the other. (Laughter.)"
p]arl Russell, Foreign Secretary, in the House of Lords, Feb. 10, 1802, Dip.
Cor. 1802, 31.
This view evidently is different from that expressed l)y Mr. Cass, and is
not based on any legal effect of the declaration of intention.
'' The mere declaration of an intention does not make a person
born abroad a citizen. He might change his mind before the arrival
of the period for him to take the oath of allegiance, and the law of
the United States jirovides for the interval between the declaration
of intention and the final act of naturalization, in order that the
l)erson who proposes to Ih^couic naturalized should have leisure to
deliberate on the importance of the proceeding."'
Mr. Fish, Sec. of State, to Mr. de Luna, April 22, 1809, 81 Dom. Let. 7.
§ 387.] DECLARATION OF INTENTION. 339
See, to the same effect, Mr. Fish. Sec. of State, to Mr. Dunbar, April 19,
1869, 80 MS. Dom. Let. 594; to Mr. Bissell, Jan 19, 1870. 88 MS.
Dom. Let. 107; to Mr. Bennett, Dec. 24, 1872, 97 MS. Doni. Let. 73;
to Mr. Jay, Feb. 2, 1875, MS. Inst. Austria, II. 319.
Also, Mr. Bancroft Davis, Assist. Sec. of State, to Mr. Fox, consul at
Trinidad de Cuba, May 12, 1869, S. Ex. Doc. 108, 41 Cong. 2 sess. 202.
The fact that a person dying abroad has made a declaration of
intention to become a citizen of the United States affords no basis
for action by a consul of the United States in respect of the adminis-
tration of his estate.
Mr. Evarts, Sec. of State, to Mrs. Blacldock, Sept. 10, 1878, 124 Doui.
Let. 293. Continuing, Mr. Evarts said : " It is only when a citizen
dies abroad that the law requires a consul to administer on the
estate which he may have left in his district, so far as the local law
may allow."
" None but citizens can properly claim protection from the Government,
and your declaration to become a citizen does not confer upon you
that character." (Mr. Evarts, Sec. of State, to Mr. Glendenning,
June 7. 1878, 123 MS. Dom. I^t. 204.)
"A mere declaration of intention to become a citizen of the United
States does not change the nationality of the party making such
declaration ; he remains until final naturalization a subject or citizen
of his origin (sir). Consequently such declaration of intention
Avould avail you nothing," for purpose of protection in the country
of origin.
Mr. Frelinghuysen. Sec. of State, to Mr. Dunne, July 31, 18.S.3. 147 :MS.
Dom. Let. 595.
See, also. Mr. Frelinghuysen. Sec. of State, to Mr. Foster, n)in. to Spain.
April 2, 188.3. 146 MS. Dom. Let. 311 ; to Mr. de Bounder, Belg. Min..
April 23, 188.3, MS. Notes to Belg. Leg. VII. 311; to Mr. Randall,
M. C, March 14, 1884, 1.50 MS. Dom. Let. 276. In the letter to Mr.
Randall, which related to the arrest, on an American merchant ves-
sel at Sagua la Grande. Cuba, of a Spanish subject who had made a
declaration of intention. Mr. Frelinghu.vsen observed: "The case of
Koszta differs from this in that the Austrian officers attempted to
seize him upon the territory of a third iK)wer. not that of his origi-
nal allegiance." It will be seen, however, that Mr. Marcy's jus-
tification of the protection extended by Captain Ingraham to Ko!<zta,
even in the territory of a third ixjwer. was not based upon the fact
that he had made a declaration of intention. Infra. S 490.
Certain persons of Russian origin, who had made a declaration
of intention in the United States, and who afterwards settled iu
Palestine, claimed protection as American citizens. It was stated
that the Russian consular representative having declared that they
had lost their Russian citizenship, the Porte asserted that they nnist
be considered as " Turkish subjects." Mr. Frelinghuysen declined
340 NATIONALITY. [§ 387.
to adinit this olaim, observiiij; that the persons in question had
acquired by their declaration of intention '' a ({nasi right to j)rotec-
tion as against the claim of a third power to their allegiance," and
that " we would hold in case of dispute on this point that they
retain a future right to perfect their naturalization in conformity
with our laws." In a subsequent instruction he said that if the
question should arise, the United States would "claim that the per-
son alfected shall not be deemed to have become a subject of the
Porte until after he shall have had full option" to "complete his natu-
ralization." At the same time Mr. Frelinghuysen admitted that the
"declaration of intention is not of itself a renunciation of original
allegiance, but simply a record of declared intention to renounce
such allegiance on l)ecoming a citizen of the United States."
Mr. Frelinghuysen, Sec. of State, to Mr. Wallace, luin. to Turkey, March
1'5, 1884, and April 8, 1884, For. Rel. 1884, 551, 560.
The foregoing instruction, in connection with which the instructions of
Mr. Blaine to Mr. Ilicks, in 1890, infra, pp. 341-343, should be read,
bears date eleven days after the letter of Mr. Frelinghuysen to Mr.
Randall, supra. Mr. Marcys position in the Koszta case, as will
hereafter be shown, did not in the remotest degree rest ui)on the
strange theory that a person who has merely declared his intention,
and therefore has not become a citizen, may acquire an international
right to become a citizen by leaving the United States and going
to a country other than that of his origin. See, infra, §§ 490, 491.
Until a person has perfected his naturalization in due course of
law and obtained his final papers, he can not claim the protection of
the United States in case of his voluntary return to the country of
his origin.
Mr. Bayard, Sec. of State, to Mr. Crain, M. C, .Jan. 28, 1886, 158 MS.
Dom. Let. 573.
See, also, Mr. Bayard. Sec. of State, to Mr. Bendenli, May 13, 1885, 155
MS. Dom. Let. .3(U.
A declaration of intention does not entitle a person to be registered
as a citizen of the United States by the American consuls in China.
Mr. Bayard, Sec of State, to Mr. Denby, nun. to China, April 18, 1887,
For. Ucl. 1887, 210.
While the I'liitcd States minister in China might perhaps be justified
under some circumstances in using his "good offices" in behalf of a
person who had made a declaration of intention, it would seem that
.such a iKM-Koii. if he was a citizen or subject of a country with which
the United States had a formal treaty of naturalization, would be
excluded from such action. (Mr. Olney, Sec. of State, to Mr.
Denby, min. to China. .Tan. 1.3, 1897, For. Rel. 1896, 92, 93.)
An application was made to the Department of State by a citizen
of Philadelphia for a passport for a British subject, who had de-
§ 387.] DECLAKATIOISr OF INTENTION. 341
clared his intention to become a citizen of the United States.
Accompanying the application there was a letter from the British
consul at Philadelphia, which led the Department of State to say :
*' Her Britannic Majesty's consul . . . seems to be under the im-
pression that an alien, when making declaration of his intention to
become a citizen of the United States, abjures his original allegiance.
He does not, however, do so until he appears before the court to
perfect the final act of lawful naturalization, to which the first article
of the treaty of 1870, between this country and Great Britain, refers.
In bringing this matter to your attention it is not intended to raise
any question as to the effect of the declarant's act should he quit this
country before completing his lawful naturalization and under Brit-
ish protection. That is a matter for the court to adjudicate should
he return after such absence and allege that he quitted this country
temporarily and animo recertendi, without intention to abandon
whatever domicil he may have acquired or to interrupt the jiroba-
tionary period of residence."
Mr. Bayard. See. of State, to Mr. West, British niin., Oct. 17, 1885, MS.
Notes to Gr. Br. XX. \m.
" I have to acknowledge the receipt of your No. 70 of January 14
last, in which you inclose a copy of a certificate of protection which
you hav'e drawn with a view to its issuance to one William Gylling, a
Swedisli subject who, in 1881, declared his intention to become a
citizen of the United States, but never took the subsequent steps
necessary for admission to citizenship.
"A comparison of the certificate with your dispatch will disclose a
misapprehension in regard to the effect of Mr. Gylling's declaration
of intention. It is correctly recited in the certificate that Mr. Gyl-
ling ' declared his intention to become a citizen of the United States of
America and to renounce forever all allegiance and fidelity to all and
any foreign prince, potentate,' etc.
" In your dispatch you say : ' These men [of the class of Mr.
Gylling] are in a state which naturally excites their apprehension,
having renounced on oath all allegiance to their native land and not
having completed the fonnalities which entitle them to be classed as
full citizens of the land of their adoption.'
" This statement embodies a very prevalent misapprehension in
regard to the effect of a declaration of intention. That act, as its
description indicates, is merely expressive of a purpose and does not
have the effect either of naturalization or of expatriation. In the
case of Mr. Gylling the case is made doubly clear by the treaty of
naturalization between the United States and Sweden and Norway of
May 26, 18G9. By the first article of that treaty it is expressly pro-
vided that ' the declaration of an intention to become a citizen of the
342 NATIONALITY. [§ 387.
one or the other eouiitrv has not for either party the effect of citizen-
ship lepilly acciiiiretl.'
- This chuist' foUows the provision in the same article that change of
allegiance sliall he effected by a o years' residence and naturalization.
" The Department is therefore of the opinion that the certificate
should not Im> issued to Mr. (Jylling."
Mr. Blaino, Sec. of State, to Mr. llitks, niin. to Pern, Feb. 2(;, 1890, For.
Rel. 18SK), iV.H.
See, to tlie same effect. Mr. I?lnine, Sec. of State, to Mr. Thomas, June 4,
185K). 177 MS. ]>oiu. Let. (>4L
" The naturalization laws of the United States are framed upon
the theory that there is some connection between residence in a coun-
try and the ac(|uisiti()n of a right to its j)r()tection. Hence thcA' pro-
vide a j)r()bationary period during Avhich the applicant, bj' residence
in the land of intended adoption, by acquiring interests therein, by
good moral conduct, and by familiarizing himself with, and attach-
ing himself to, its constitutional methods, shall fit himself for a faith-
ful and loyal assumption of the duties of citizenship, and thus, as a
member of our free society, support the (lovernment whose protection
is in return extended to him. Accordingly, it is required that he shall
first make a declaration of intention to become a citizen and after-
wards undergo a probation, not oidy to ])repare him for naturaliza-
tion, but also to test the quality and steadfastness of his purpose be-
fore his admission to citizenship.
'' The object of the hiAV was to make citizenship a substantial
thing, and to rtHpiire the performance of acts indicative of true faith
and allegiance as the condition of its acquisition. The law is so clear
on this subject that there does not appear to be room for contro-
versy. And, in further execution of this purpose, it is provided that
passports shall not be granted or issued to, or verified for, any other
persons than citizens of the United States (Rev. Stats., sec. 4070).
It is not easy to discover, therefore, the grounds upon which the
privileges of citizenship can be claimed by persons who are not citi-
zens. The conditions of the acquisition of citizenship being clearly
stated in the law, the reason by which a person can claim the right
of citizenship when he has deliberately omitted to perform the condi-
tions is l)y no means apparent. Nor is it less difficult to perceive upon
what theory a (lovernment can be held bound to protect persons who
are not only not its citizens, but who have not exhibited a willingness
to live long enough within its jiu'isdiction to acquire its citizenship.
Wiiere a ])erson after making a declaration of intention, instead of
remaining in the Tniti'd States and becoming duly naturalized,
abandons the counti-y and remains abroad, it must be inferred that
he has also abandoned his intention. Take, for example, the case, of
§ 387.] DECLARATION OF INTENTION. 343
Gylling, out of which the present correspondence has grown. The
precise duration of his residence in the United States is not known,
but it was evidently short. He made his dechiration of intention in
1881, and not long afterwards appears to have left the United States.
Almost twice the probationary period required for admission to citi-
zenship after the date of first arrival in the United States has elapsed
since he made his declaration ; but he has never performed the condi-
tions of naturalization, and consequently has never been admitted as
a citizen. Indeed, by going and remaining abroad he continuously
disables himself from fulfilling those conditions. To say that such
a person is entitled to the protection of the United States is merely to
set aside the statutes and discard citizenship altogether as a test of
the right to claim protection. Those who refuse to attach themselves
to the United State.s can not complain if this Government does not
consider itself bound to exert its powder in their behalf. Professions
of allegiance, however ardent, have, it is prosper to say, little weight
where the conduct of the individual refutes them. The Department
IS at a loss to understand why persons in the position of Mr. Gylling
' naturally look,' as you observe, ' to the American legation for a
recognition of their citizenship,' when the piece of paper they carry
discloses that they are not American citizens and their conduct shows
that they are not endeavoring to become such.
" It is not deemed necessary to enter into the discussion of ques-
tions of domicil, or of the rights Avhich may pertain to that status.
The present observations are confined to the general class to which
your dispatch relates."
Mr. Blaine, Sec. of State, to Mr. Hicks, iiiin. to Peru, May 8, 1890.
For. Rel. 1890, 69.5.
A declaration of intention " has no international value whatever
in the event of the declarant returning, as he appears to have done,
to his native cpuntry."
Mr. Olney, Sec. of State, to Mr. Breckinridge, niin. to Russia, No. 109,
Jan. 27, 189G, MS. Inst. Russia. XVII. 400.
See, to the same effect. Mr. (JreHliani, Sec. of State, to Mr. Berkowitz,
.Tune 22, 189.-J, 192 MS. Doni. Let. 421; to Mr. Mason. Oct. 19. 1893.
194 id. 03; to Mr. Pena. Dec. 20, 1893. id. ()04 : to Mr. Watrous,
Jan. 23, 1895, 2(K) id. 34<>.
Mr. Olney, Sec. of State, to Mr. Ilargreaver, Sept. 17, 189."). 204 .MS. Doni.
Let. Oai; to Mr. Adadourian. Jan. 7. 18:m;. 207 id. 47; to .Mr. Cliand-
ler, Jan. 10, 1896, id. 209.
Mr. Moore. Act. Sec. of State, to Mr. Pashayan. Sei>t. 9, 1898, 231 MS.
Doni. I.rf>t. 292 ; Mr. Adee, Second Assist. Sec. of State, to Mr. Kara-
yanuoi)Oulos, Aug. 9, 1897, 220 id. 157.
344 NATIONALITY. [§ 387.
Under the act of June 8, 1896, making appropriations for defi-
ciencies of the fiscal year, the sum of $10,000 was
dues of Italians, ^^^^j^^ ^^^ ^j^^ Italian Government, out of humane con-
sideration, and without, reference to the questi(m of liability therefor,
as " full indemnity to the heirs of three of its subjects who were
riotously killed, and to two others who were injured," by lynchers in
Colorado.
Of the three who were killed, two had declared their intention to
l)ecome citizens of the TTnited States, but had not completed their
naturalization.
For. Rel. 180.1, II. 044-04."), 040; For.' Rel. 180G, 42G.
August 8, 1896, three Italian subjects, named Lorenzo Salardino,
Salvatore Arena, and Giuseppe Yenturella, were lynched in the jail
at Hahnville, Louisiana, while in the custody of the authorities of the
law. They were charged with committing or with being concerned
in the commission of two murders. On their first incarceration the
sheriff, in view of the prevailing excitement, placed an extra guard
around the jail, but later, believing that the excitement had subsided,
removed the extra guard and left the jail as usual in charge of the
jailer. Subsequently, on the night of the 8th of August, an armed
mob broke into the jail and committed the lynching. Three other
Italians, who were confined in the prison, were not molested. The
persons who composed the mob Avere unknown.
Xovember 27, 1890, Mr. Olney, as Secretary of State, communicated
certain facts to the Italian ambassador, Avith an expression of belief
that they would lead to a decided change in the attitude which his
Government had previously been disposed to assume. These facts
were to the effect that Salardino had lived for 12 years in Louisiana,
and had taken part in the civil affairs of the State by voting at
elections; that, Avliile measures Avere taken after his arrest to protect
him, the nnirder Avhich he had committed Avas peculiarly atrocious
and Avas clearly proAed : that Venturella and Arena had also resided
in Louisiana for several years and Aoted at elections, Arena having,
as Avas shoAvn, declared his intention to become a citizen of the United
States; that the crime Avith Avhich they Avere charged' Avas also pecu-
liarly atrocious and Avell established; that the attack on the jail Avas
unexj)ecte(l. and that its success Avas not due to any negligence or con-
nivance on the part of tlie authorities; and that although the lynching
had been investigated by a grand jury, it had been impossible to
obtain information Avhich could lead to the discovery and punishment
of the guilty parties. On these grounds it Avas contended by the
United States that the Italians in questicm Avere slain not because of
their nationality, but because of their apparent participation in
atrocious crimes; that there had been no Avillful denial of justice in
§387.] DECLARATION OF INTENTION. 345
the case, and that there was no reason to suppose that the incident or
its result would have been different had the supposed criminals been
citizens of the United States. Special stress was, however, laid upon
the point that the victims of the lynching were " not Italians tempo-
rarily residing in the United States;" that, while they were perform-
ing no duties as subjects of Italy and " were successfully evading the
burdens of her military service," they were apparently intending to
remain in the United States and adopt it as the place of their perma-
nent domicil ; that, although a declaration of intention had been
found only in the case of Arena, it had doubtless been made by the
others, since they could not have voted without proof of oaths to the
same effect ; and that, " by qualifying and acting as electors they had,
according to the constitution and laws of Louisiana, as interpreted by
its supreme court, become citizens of that State and eligible to hold
office." Under these circumstances the United States, while reserving
for the moment its decision in the matter, suggested for the considera-
tion of the Italian Government whether it had " any right or duty of
reclamation " as against the United States on account of the persons
in question. Pursuing this question further, Mr. Olney said :
" In obtaining indemnity for injuries inflicted upon a citizen the
Government presenting the claim is in truth that citizen's agent, and
any legal or equitable defense good as against the citizen himself is
equally good as against his representative. But an individual who
participates in making the laws and electing the officers of one Gov-
ernment must in every just view be held to estop himself from com-
plaining of that Government to any other. In point of principle
he is not distinguishable from, but is to be identified with the body
politic of which he becomes a member; he may not approve of a
particular act of that body, but he contributes to the power which
enables it to do any or all acts. As a matter of fact, indeed, his vote
may have brought about the very legislation or elected the very officer
responsible for the injury of which he complains. The soundness
of the jwsition, therefore, that an international reclamation will not
lie against a Government when the beneficiary of the claim by taking
part in the organization and administration of that Government
has in effect given his assent to its proceedings, seems to be supported
by every consideration of justice and equity. These considerations,
which go to the duty of the Italian Government in the promises,
are reenforced by the absence of any real interest on its part. The
wrongs d(me at Hahnville, on account of which its intercession is
asked, were to persons who had abandoned Italian soils and had
ceased to be part of the population of the kingdom, and who added
nothing to its productive capacity or to its military strength. To
intercede as asked, therefore, is to use the credit and prestige and
346 NATIONALITY. [§ 387.
power of the Italian (lovcrniiient on behalf of persons, or the rep-
resentatives of persons, whose fate and fortunes were at the time of
the infliction of the wrongs eoniphiined of no real concern to that
(it)verninent.
•• In bringing the Hahnville cases to the notice of the State Depart-
ment your exceUencv has evidently been under the impression that
they resemble in all substantial particulars the cases of certain Ital-
ians lynched in New Orleans in 1891, and of certain others lynched
at AValsenbur<i:, Colo., in 1894. But in the last-named cases there
was neither alle«>:ation nor jwoof that -the persons killed had ever
taken jjart in the political affairs of a State or of the United States
by qualifying as voters and actually voting at elections. In the
New Orleans cases, out of the eleven persons of Italian extraction
who were lynched, two were American citizens; five had declared
their intent to l)ec<)me United States citizens and had voted; of the
remaining four, three had neither voted nor declared their intent
to become United States citizens, while one had declared such intent,
but had not voted. To the four persons last mentioned the repre-
sentations of your (xovernment and its demands npon the United
States through you were expressly limited, as appears by reference
to the correspondence on the subject between yourself and the State
Department. It is true that the Italian consul at New Orleans, in
a note to the district attorney, argued that the Italian Government
could rightfully intervene on behalf of the five persons who had
declared their intent to become United States citizens and had voted,
and that the district attorney in a note to the Attorney-Cieneral con-
troverted that view. But no ])osition of the Italian consul, though
brought to your notice, was ever adopted by you — it was never
discussed l)etween the two Governments. The note announcing your
departure from Washington by order of your Government specifies
only four Italian subjects on account of whom demands had been
made u]K)n this (lovernment, and the incident, when settled, was
settled by the j)ayment of a lump sum, the application of which was
left wholly to the Italian (Jovernment. The result is that the sub-
ject to which the attention of the Italian Government is now invited
is one ujxju which the two Governments in their relations to each
other stand wholly uncommitted. It is not, therefore, permissible
to doul)t that the quest icm will be examined and passed upon by
each in an enlightened spirit and with a sincere purpose not only to
dispose of the particular matter in hand, but to ascertain and fix a
just and j)r<)per I'ule for the determination of all like ([uestions
hereafter arising,"
Baron Fava. the Italian ambassador, in reply maintained that
neither the position and responsibility of the persons nmrdered, nor
§ 387.] DECLAKATION OF INTENTION. 347
the apparent criminality of the persons lynched, could be considered
as important, the question at issue being the application of the fun-
damental principle of law and justice that the accused were to be
considered innocent till found guilty by judicial process. He also
affirmed that the evidence showed that the local authorities were
guilt}' of negligence both in failing to protect the prisoners, and in
failing to hunt out and prosecute the lynchers. He contended that
such proceedings as were taken could " not do otherwise than tend
to encourage similar outrages in future." Proceeding then to the
question of intervention, Baron Fava said :
" You inform me that the Federal Government, Avhile it reserves
its decision on the subject, is inclined to think that there are serious
reasons to doubt any right or duty on the part of the Italian Govern-
ment against that of the United States resulting from the lynching
at Hahnville.
"These reasons are the following: That one or perhaps all three
of the men lynched had taken out their first naturalization papers
(i. e., declared their intention to become naturalized) ; that all three
had voted in the State of Louisiana; that all three had resided unin-
terruptedly in the aforesaid State without any apparent fixed in-
tention to return to their native country. '
" You state these three reasons, and assert that, while the three
men lynched did not in any way contribute to the prosperity and
wealth of Italy, and while they even avoided obeying the laws relat-
ing to military duty, they took an active part in the political life of
this country, where, as electors, they had become, according to the
constitution and laws of Louisiana, as interpreted by that supreme
court, citizens of that State.
" I should extend this communication beyond the limits of a note
if I undertook to quote the laws in force here and the opinions of
American publicists in support of the principle that naturalization
in the United States can not be granted otherwise than by the Fed-
eral laws exclusively, and not by State laws. It is not, moreover,
for me to remind your excellency, who is so thoroughly versed in
legal affairs, of the universally accepted doctrine that ' mere declara-
tion of intention does not confer citizenship.'
" AVhatever were the laws of Louisiana on this subject; whether
they had taken out their first papers or not ; whether they had voted
as electors or not, Salardino, Arena, and Venturella were not citi-
zens of the United States. In order to become so they would have had
to comply with the provisions of section 2165 of the Revised Statutes,
which regulates, uniformly, the concession of naturalization which is
granted in the United States by the national legislative power ex-
clusively. I here cite the cases of Chirac v, Chirac (2 Wlieaton, p.
348 NATIONALITY. [§ 387.
2G0), and of Osborn r. The United States Bank (3 A\Tieaton, 26T),
in which Chief Justice Marshall e.xpressed himself as follows:
" * The j)()wer of naturalization, l)eing exclusively in Congress, cer-
tainly ought not to be controverted.'
" This view is fully stated in the legal memorandum which is
herewith inclosed. (Inclosure A.) In this paper, after examining
the question in the light of the constitution, laws, and jurisprudence
of the State of T^ouisiana, Lawyer Chiapella says:
'• * Tile alien elector has certain privileges in the matter of voting
in Louisiana and in a few other States, granted to him in anticipation
of a future naturalization which may never ripen into citizenship,
and that is all. But he has not yet crossed the Rubicon. He has not
been naturalized under the act of Congress. He is still under the
allegiance of the foreign Government, and competent to place himself
under the a>gis of its protection.'
" The foregoing is sufficient to show that Salardino, Arena, and
Venturella, not having met the requirements pf the provisions on
the subject of naturalization Avhich are contained in the Revised Stat-
utes, had preserved the jilentitude of their capacity as Italian sub-
jects, and that, I repeat, in virtue of the laws of the United States.
Nevertheless, but in a purely subordinate line, and without prejudice
to the^ncontestable Italian nationality of the three aforesaid indi-
viduals, I do not hesitate to enter, wnth your excellency, upon an
examination of the yther special points of your note, relative to the
status of the lynched persons.
" It is stated l>y the special agent of your Department that Salar-
dino, Arena, and Venturella had voted at the political elections in
Louisiana; that Arena had taken out his first naturalization papers,
while it is to be presumed that the two others had done the same, as
they also had presented themselves at the elections; and that all
three had definitely fixed their domicil in the United States.
" I do not know what were the sources of this information ; as,
however, they are wholly at variance with that furnished the authori-
ties of Louisiana, and with that which I have received from the
Italian consulate at New Orleans, I must beg your excellency to
inform me: (a) In what registers and under what date the three
Italians are inscribed as electors; (h) from which of the five Fed-
eral courts of Louisiana xVrena had received his first papers; (e)
when, aiul to whom, the thi-ee Italians had dechired that they had
fixed their domicil in the United States. . . .
"But even if Salardino, Arena, and Venturella had voted at the
elections, and even if the laws of Louisiana attached great impor-
tance to that fact, how could this affect the well-proved fact that
they were not American citizens?
§ 387.] DECLARATIOlSr OF INTENTION. 349
" The first, Salardino, had resided fully twelve years in Louisiana,
and even if he voted, he had not taken out either his first or second
naturalization papers. Arena, according to the special agent, had
only taken out his first papers, and his attempts to become an Ameri-
can citizen had stopped there. Venturella does not appear to have
done even this, as the said special agent could not find either his cer-
tificate of first declaration or that of Salardino. All three had had
time to ask for their first and second papers. Why did they not do
so? The mere fact of having voted would not have conferred upon
any of the three the right of citizenship, as is amply shown in the
inclosed memorandum ; and if they voted, they .voted illegally, and
probably because they had been misled by native politicians in search
of voters, legal or illegal.
" But there is more to be said. The four Italians who were
lynched at Walsenburg on the 14th of March, 1895, Francesco
Ronchietto, Stanislao Vittone, Pietro Giacobino, and Antonio Go-
bette, had solemnly declared their intention to become citizens of the
United States, and to renounce forever all submission and allegiance
to any foreign prince, potentate, state, or sovereignty, and especially
the King of Italy, and they all were in possession of their first natu-
ralization papers. Notwithstanding this, and in spite of those sol-
emn declarations, Avhen I informed the Federal Government of the
murders which had been committed, Mr. Uhl came to my house and
expressed the President's regret for that bloody act, and your hon-
orable predecessor and your excellency yourself, deeply impressed
with a sense of ihe duties which the Government of the Union has
assumed toward a friendly power by virtue of treaties, did not raise
the slightest objection; you all immediately recognized the Italian
nationality of the four victims, and a suitable indemnity, recom-
mended by your Department and by the President, was granted to
the bereaved families. In view of this precedent, it can hardly be
maintained that the subject to which you have now called my atten-
tion is one of those as to which the two Governments are entirely
uncommitted.
"And lastly, the fact tliat the three victims had been in the United
States for several years can not be cited as a proof of their deliberate
' aninuis manendi.' If they had not been residing here temporarily,
as asserted by your note, they would have sent for their families,
whom they had left in Italy, where they had their domicil, and
whom they supported from here by their labor, Venturella his wife
and seven children. Arena his wife and four-year-old son, and Sal-
ardino his old father, who was unable to earn his living. Under
these circumstances, and however long and continuous their absence
from Italy might have been, it can not be said that they had trans-
ferred their domicil to Louisiana, nor had they no intention of
350 NATIONALITY. [§ 387.
returninj? to thoir native land, nor that they were not contributing
to tlie resources and wealtli of their own country. They had come
here on business: that is to say, to provide by the fruits of their
hibor for the comfort of their wives, children, and parents, and they
were thus contributing to the Avealth of the country in which they
had their home.
'• Nor is the other assertion, that they had withdrawn from mili-
tary service, correct. By the two affidavits which I have the honor
to submit to you (inclosures 5 and 6) the signers declare under oath:
"(r/) That (liuseppe Venturella had performed his regular mili-
tary service in the artillery, and that he landed in the United States
with a regular passport in his possession.
''(A) That Salvatore xVrena had not performed any military serv-
ice, lx»cause, as an only son, he was enrolled in the third class, and that
when he arrived in the United States he was in possession of a regu-
lar j)assport.
''(c) And lastly, that Lorenzo Salardino had never performed
any military service, because he, too, as an only son, was enrolled in
the third class, and that he came to the United States with a regular
Italian passport.
" I can not follow yoiir excellency in the views expressed by you
as to a Government demanding indemnity for injuries inflicted upon
one of its own subjects, being the agent of said injured subject. In
that case the American Government would be, near that of the
Sultan, the agent of the missionaries, in behalf of whom it is now
demanding indemnities. Every Government owes it»to itself to pro-
tect, within the bounds of justice, its own subjects, however poor and
humble, and it would otherwise lose the respect of civilized nations.
'•• Referring to the other lynching which occurred in New Orleans
in 1891, and which you mention in your note, I must correct a state-
ment contained in that note, which- statement is absolutely and en-
tirely incorrect. Of the eleven persons who were victims of that
savage slaughter, two were American citizens, four were undoubtedly
Italian subjects, and the other five, Avho had only taken out their
first papei's, were justly regarded by the royal consul at New Orleans
as Italian subjects. By the pure, simple, and unreserved transmis-
sion to th(^ Department of State, in my note of March 25, of the
report of the said consul, I evidently and impliedly adopted his
views on the subject. Otherwise I would have kept his report to
myself. In conse(|uence of its having been remarked to me in per-
son at the Department of State that it was possible that those five
persons had also taken out their last papers, I requested the consul
to make new and closer investigations in the case. As the diplomatic
rupture lM;tween the two countries occurred a few days afterwards,
and as the consul's rej^lies did not reach me in time, I mentioned in
§ 387.] ■ DECLARATION OF INTENTION. 351
my note of March 31 only the four Italians who were imdoiibtedly
subjects of the King. But still I never had a thought of abandoning
the other five if it should be found that they had only their first
papers. In fixing the indemnity at $25,000 the United States Gov-
ernment must, therefore, certainly have admitted that those five per-
sons were Italian subjects, in spite of the fact that they had procured
their iirst naturalization papers.
" I think that I have shown by the foregoing remarks that the
particular points in your excellency's note, which I have examined
with all sincerity of purpose, are insufficient to induce my Govern-
ment to desist from taking that just action which is called for by the
murder of the Italian subjects at Hahnville; nor can they in any
way disprove the incontrovertible fact of the Italian nationality of
Arena, Venturella, and Salardino. Besides, this fact was immedi-
ately admitted by the judicial authorities of Louisiana themselves,
in their report of August 15, and, on the ground of that report, by
the Department of State in the telegram sent by it to the governor on
the 29th of August. Like the said five persons who were lynched at
New Orleans in 1891; like those of 1895 at Walsenburg, Arena,
Venturella, and Salardino were Italian subjects. And it was pre-
cisely owing to this undoubted personal status of theirs that I had
to insist in our interviews — and the high officials who took your place
temporarily last summer likewise adhered to them — that ' in dealing
with the present case the-^ew Orleans lynching of 1890 and the
Colorado murders of 1895 should serve as precedents.'
'" In view of the proven Italian nationality of the three subjects
of the King who were lynched at Hahnville, I do not see, in conclu-
sion, any other way of arriving at a legal, just, and final settlement of
the dispute than that indicated by the treaties, the only one consist-
ent with the dignity of great nations.
'' The entire solution of the difficulty is found in the treaty in force
between the United States and Italy; and by virtue of the treaty
itself, and with the confidence which I have long cherished of the
firm resolution of the President and the United States Government to
have international agreements strictly observed, I have the honor to
again present the request which I hnxe already repeatedly jn-esented
to your excellency, that the guilty parties be sought and brought to
justice; that steps be taken to prevent the repetition of such atro-
cious crimes, and that, at the same time, just and adequate compensa-
tion be made to the families of the victims."
In a subsequent note. Baron Fava said :
" I did not fail to draw the attention of my Government upon the
statement made in your note of November 27 ultimo that the three
Italian subjects lynched at Hahnville, La., ' by qualifying and acting
352 NATIONALITY. ' [§ 387.
as doctors had, a('cor(lin<jj to tlie constitution and laws of Louisiana
as interpreted hv its supreme court, become citizens of that State.'
" I j)remise that even if the three Italians had voted, which is not
yet proved, my Government hardly understands that they- could
lK>come citizens of a State of the Union without being citizens of the
United States. The Federal laws having prescribed a uniform rule
of naturalization, and tlie power of naturalization being exclu.sively
in Congress, the Italian Goverimient is entitled to think that the
laws of Louisiana, however peculiar they may be in respect to citi-
zenship, can not be recognized by a foreign power. Besides, the
very fact that the article 185 of the constitution of Louisiana says
that ' any foreigner may vote who has taken out his first papers,'
is conclusive proof that any foreigner who does so vote is still an
alien.
'' Moreover, you are aware, Mr. Secretary of State, that in the
tarly settlement of the Western States of the Union, many of the
legislatures expressly granted the right to vote to aliens who had
declared their intention to become citizens, and many thousands of
such aliens so voted. This was a common practice. It was never
jjretended, however, that they became citizens until they took out
tjieir final papers. The privilege of voting was a mere permission
given by the State, which no one claimed created citizenship; on the
contrary, the fact expressly appeared that they were not such citizens.
Under these circumstances they remnfined aliens so far as the
National Government was concerned, and were entitled to be pro-
tected as such aliens.
'' The recent cases in Louisiana were not different. The three men
lynched were Italian subjects beyond all question. If they voted
wrongfully, they were still aliens; if they voted rightfully undor the
laws of the State while aliens, they lost none of their rights as such
aliens under the treaty of the United States with Italy.
"As far as it concerns the suggestion made by you in your aforesaid
note whether the Italian Government can or can not consider as its
sul)jects those Italians to whom it is permitted to vote in the States
of the Union, allow me to observe that the solution of this question
l)elongs solely to the Italian legislator and to Italian law. As a
matter of fact I can add that the Federal Government has always
considered and still considers as citizens of the United States the
numerous Americans who in Hawaii take a prominent part in the
political affairs and vote openly at the elections of those islands.
" I feel confident that the additional considerations which I have
now the honor to sul)mit to your enlightened and impartial examina-
tion will still better convince you of the ground and the justice of
the request I had the occasion to renew by my two recent notes of
December 31, 189G, and of the 10th instant, to which I refer."
§ 388.] NATURALIZATION : RESIDENCE. 353
By the deficiency appropriations act of July 19, 1897, Congress
appropriated the sum of $6,000, to be paid to the Italian Government,
as full indemnity " to the heirs of three of its subjects, Salvatore
Arena, Giuseppe Venturella, and Lorenzo Salardino."'
For tlie preliniiimry discussions of the case, see For. Ilel. 1890, 396-403,
403-404.
'or the discussiou of tlie question of nationality, as above quoted, see
Mr. OIney, Sec. of State, toi Baron Fava, Italian amb., Nov. 27,
189G, For. Ilel. 1890, 407, 410-411; Baron Fava to Mr. Olney, Dec.
31, 1890, and Jan. 27, 1897, For. Rel. 1890, 412, 414-418, 421-422.
For the act of July 19, 1897, see 30 Stat. 105, 100.
0. Residence.
(1) FIVE years' bule.
§388.
Rev. Stat., § 21G5, providing that the court naturalizing an alien
must be satisfied that he has resided in the United States for five
years, and Avithin the State where the court is held for one year, does
not require the last year of residence before the application for
naturalization to be in the State where the application is made, as
it is sufficient that applicant has lived for any year in that State.
Chandler r. Wartnian, 0 N. J. Law J. 301.
The five years' residence required by the statutes means actual
residence in the United States; and a person can not be considered
" as having been constructively in this country during the past five
years merely because he has been in the employment of this Govern-
ment [i. e., as interpreter, or dragoman, of the American legation at
Constantinople] in Turkey during that time. The fiction of extra-
territoriality can not be carried to this extent."'
Mr. Greshani, Sec. of State, to Mr. Terrell, niin. to Turlcey, Nov. 2, 1893,
For. Kel. 1893, 701.
The person in (luestion, Mr. Garjiiulo. liad made a declaration of inten-
tion in the T'nited States, hut soon afterwards returned to Turkey
in the ollicial capacity above mentioned.
"A constructive residence ... is held not to answer the require-
ments of the statute. Your proposed residence in Japan can not,
therefore, be made availal)le for naturalization puri)oses." (Mr.
Evarts, Sec. of State, to Mr. de la Camp. July 2."). 1877. 119 MS. Dom.
Let. 202.)
The process of naturalization nuist be performed in the United States.
(Mr. Freliufjhuysen, Sec. of State, to Mr Kasson, min. to (Jermany,
Jan. I.";. ISS."), For. Kel. ISSf). .-{94. :59.">.) See sui)ra. ]). 329.
It has been intimated that a sojourn of a native Porto Ilican in I'orto
Rico, after declaration of intention, would not interrupt his resi-
H. Doc. 551— vol 3 23
354 NATIONALITY. [§ ^88.
denoe in "the UntttHl States." (Mr. ITay, See. of State, to Mr.
Mlraiuln, June 10. 1899, 237 MS. Doni. Let. 40G.) The same thing
would, however, i>otentially be true of a transient sojourn anywhere.
" No alien shall be admitted to become a citizen who has not for
Meaning of "con- ^^^^ continued term of |ive years next preceding his
tinued term." admission resided within the United States."
llev. Stat., § 2170 ; act of June 20, 1848, 9 Stat. 240.
This provision is sul)ject to the exceptions noted below.
The phrase " continued term of five years " means " residence in the
general legal sense." (Mr. Fish, Sec. of State, to Mr.. Bancroft, miu.
to Prussia, Sept. 20, 1870, MS. Inst. Prussia, XV. 157.)
" Your despatch No. 158 has been received, together with a copy
of the correspondence you have had with the Federal Council in
relation to Dominie Madini, now residing in Switzerland.
" It appears that he is an Austrian subject by birth, and that after
having taken part in the Lombard revolution, in 1848, he came to
this country and legally declared his intention to become a citizen of
the United States. In the year 1852, and before he had been long
enough in this country to be entitled to naturalization, he returned
to Europe and settled in Switzerland, where he has since resided,
for the alleged purpose of collecting his fortune, which he has some
prospect of being able to do, and then he designs to return and reside
in -the United States.
" Upon this state of facts you interposed in his behalf in order to
procure from the Federal Council permission for him to remain in
the Canton of Zurich, from which he had received notice to with-
draw, and you suggest that a few words from this Department
expressing to the Council its concurrence in the view taken in your
note to that body on the subject would be of great utility. . . .
'' The r2th section of the act of March 3d, 1813, for the regulation
of seamen on board the public and private vessels of the United
States, provides ' That no person Avho shall arrive in the United
States from and after the time when this act shall take effect, shall
1k' admitted to Ix'come a citizen of the United States who shall not
for the continued term of five years next preceding his admission
as aforesaid have resided within the United States without being at
any time during the said five years out of the territory of the United
States.'
" Under this statute it was held that any absence from the United
States, however short, during the five years, even the landing from a
steaml>oat in Canada, would prevent the applicant from obtaining
his naturalization. Such an interpretation of it was deemed a hard-
ship, and to deprive tlie law of this stringent feature, the act of
June 20, 1848, was passed, rei)ealing the words ' without being dur-
§ 388.] NATURALIZATION : RESIDENCE. 365
ing the said five years out of the territory of the United States,'
found in the last clause of the section above referred to.
" The law as it now stands, therefore, requires that the applicant
in order to be entitled to naturalization must have resided within the
United States for the continued term of five years next preceding
his admission as a> citizen. This language wholly excludes the idea
that the person may be allowed to go to another country and there
make his domicil as long as it may suit his convenience and then
return to the United States and avail himself of the time he had
previously resided within their territory. . . . By Madini's de-
parture from the United States before he was naturalized, becoming
domiciled in another country and entering into business there, he
relinquished all the advantages, whatever they might be, which he
had gained by his temporary residence in the United States, and
placed himself in relation to this Government on a footing with those
foreigners who have never been within its territory. From these
observations it will be perceived why the Department is unable to
comply with your suggestion to express to the Federal Council regret
at its declining to aid the interposition of an American legation in a
case like that of Dominie Madini."
'Mr. Marcy, Sec. of State, to Mr. Fay, No. 37, March 22, 1850, MS. Inst.
Switzerland, I. 47.
For the debates on the act of June 2G, 1848, see Cong. Globe, Senate,
Deo. 14, 1847, and Juno 18, 1848; House, June 22. 1848: Cong. Globe,
30 Cong. 1 sess. 21, 854. See, also, Moore, Int. Arbitrations, III. 2718.
M. N. was naturalized in the United States Nov. 29, 1875. It ap-
peared that he obtained a passport as a citizen of the United States
from the Department of State in 1870 on an application in which he
was represented as a native of Pennsylvania, and that soon afterwards
lie returned to his native country, Switzerland, where, with the excep-
tion of one or two brief visits to the United States, he had since re-
sided, engaged in business. From June, 1875, till 188'i, he was a
member of the municipal council of Chaux de P^onds. It was stated
that the tenure of this office Avas not incouipatible with alien status,
but it appeared that it reijuired a previous domicil of at least a year.
It was held that the facts were incompatible with the continuous resi-
dence necessary to naturalization: and that on this ground, as well as
on the ground of his action in obtaining a passport in 1870. he was
not entitled to the interposition of the United States in respect of his
arrest and imi)risonment in Switzerland.
Mr. Bayard, Sec. of State, to Mr. Cramer, niin. to Switzerland, No. 1.''.8,
May (>, 1885. MS. Inst. Switz. II. 251; to INIr. Winchester, niin. to
Switzerland. No. .33, Dec. 28. 1885, id. 205; to Mr. Sterne. Ai)ril 20,
188(j, 159 MS. Dom. Let. (374.
356 NATIONALITY. [§ 388.
" A^Hiile n resident domicil here would not be interrupted by tran-
sient absences (iiihuo rcrertendi, yet the establishment during absence
from the United States of a domicil in Switzerland, even though
temponuv, wouUl be in conflict with and annul the American domicil
for the purpose of the naturalization statutes."
Mr. Bayard, Sec. of State, to Mr. Cramer, inin. to Switzerland, No. 138,
May 0, 188.^, MS. Inst. Switz. II. 251.
It was stated in a passport application that the applicant emigrated
from Ireland to the United States in May, 1803; that he went to Ire-
land in the following August; that he returned to the United States
in 18(55, but again ^^ent back to Ireland and was" put in prison there."
The time when he again returned to the United States was not dis-
closed, but he was naturalized Feb. 21, 1871. The Department of
State declined to issue a passport on this application, since the appli-
cant apparently had not resided " five years continuously " in the
United States prior to his naturalization.
Mr. Uhl, Act. Sec. of State, to Mr. O'Douovan Rossa, May 2, 1894, 197 MS.
Doni. Let. lOG.
In the case of a native of Russia, who made a declaration of inten-
tion May 25), 1893, and then returned to Russia, where in January,
189(), he still remained, Mr. Olney said his sojourn in Russia " would
doubtless be held by a naturalizing court ... to interrupt the
continuous residence required by law as a condition precedent to his
naturalization."
Mr. Oluey, Sec. of State, to Mr. Breckinridge, min. to Russia, No. 169,
Jan. 27, 1890, MS. Inst. Russia, XVII. 40G.
" I have to acknowledge the receipt of your dispatch No. 25, of
the 17th ultimo, reporting that you have refused to issue a passport to
Demetrius Chryssanthides, because he had not resided continuously in
the United States during the five j'ears preceding the date on which
his certificate of naturalization was granted by the superior court of
the city and county of San Francisco.
" In the treaty between the United States and Bavaria concerning
naturalization, signed May 2(5, 18(58, Article I. provides that Bava-
rians who sluill become naturalized in the United States, and ' shall
have resided uninterruptedly' in the United States for five years,
shall be treated as American citizens. An explanatory protocol to
the treaty says, in paragraph 2 of Article I:
" ' The words " resided uniuterrui)tedly " are obviously to be under-
stood, not of a continual bodily j)resence, but in the legal sense; and,
therefore, a transient absence, a journey, or the like, by no means
interrupts the period of five years contemplated by the first article.'
The same explanation appears in the protocol to the naturalization
treaty with Wiirtemberg of July 27, 1808. The Department has
§ 389.] NATURALIZATION : RESIDENCE. 357
never doubted that that explanation would be accepted by the other
powers with which the United States has naturalization treaties.
(See The American Passport, page 175.)
" This is the accepted construction of the words ' resided uninter-
ruptedly,' but the law is (sec. 2170, K. S.) : ' No alien shall be admitted
to become a citizen who has not for the continued tenn of five years
next preceding his admission resided within the United States.' This
is broader than the language of the treaties, and is to be understood
in the ordinary legal sense, according to which ' a transient absence
for business, pleasure, or other occasion, with the intention of return-
ing' (13 Opinions of the Attorneys-General, 37G) does not inter-
rupt the residence.
" ' The just rule, it is apprehended, is that suggested by Senator
Berrien [in the debate on the law^] : " If the applicant is absent any
part of the time [during the five years before naturalization] it re-
mains for the court to decide whether that absence is sufficient to pre-
vent the issuing of the certificate." ' (American Law Review, Febru-
ary, 1895; article by Frederick Van Dyne, Assistant Solicitor, De-
partment of State.)
" In the case imder consideration, Chryssanthides was absent about
five months, three years before his naturalization. Whether or not
this was a period long enough to have destroyed his residence was a
question for the court before which he applied for naturalization to
determine. The presumption is that the court decided properly.
" Upon the showing presented by you the Department is of the
opinion that this absence did not by itself furnish sufficient reason for
refusing to issue a passport to Chryssanthides. Unless there is more
evidence adverse to his good faith than you submit, he should be
granted a passport and the adverse memorandum made on his nat-
uralization certificate should, as far as possible, be removed."
Mr. Hill, acting Sec. of State, to Mr. Leishman, inin. to Turkey, June 14,
1901, For. Rel. 1901, 520.
For the construction of the clauses as to residence in the treaties, see the
discussion of the treaties, helow.
(2) Exceptions.
§389.
An alien seaman, who has duly declared his intention to become a
citizen, and who has thereafter served three years on
a merchant vessel of the United States, may be ad-
mitted to citizenship.
Rev. Stats. § 2174.
This statute does not include seamen in the Navy. (Ex parte Gormly,
14 Phihi. 211.)
358 NATIONALITY. [§ 300.
liy tlH' :ic( of July •_'(>. l.S'.M. supra. 8 .•5.s<;. julult seanion in th*> Navy or
.Marine ('ttri»s. who have servt'd five consecutive years in tlu; Navy
or one eniistniont in tlie Marine Corps, may be naturalized.
As lu'ivtoforc |H)iii((Ml out, service in and honorable discharge from
(lie Aiinv entitle an adult alien to naturalization
Service in Army. ,^^.^^^^. ^^^^^ ^.^,.^^.,^ residence in the United States.
Supra, § '.\S{\.
V. c()^'VE^^TION^L arrangements.
1. Tkeatiks with tiik (Jkkman States.
(1) negotiations.
§ 300.
The first naturalization treaty concluded by the United States
was that with the North German Confederation, signed at Berlin
P^ebruarv 2'2, 1S()8. It was negotiated on the part of the United
States by (ieorge Bancroft. Its acceptance on the part of North
Germany may be ascribed largely to the sagacity and good will of
Count (afterward Prince) Bismarck.
It was followed by the conclusion of similar treaties with other
German States, as follows: Bavaria, May 20, 1868; Baden, July 19,
ISCkS; Wiirtemberg, July 27, 18G8; Hesse, August 1, 1868. All
these treaties were negotiated on the part of the United States by
Mr. Bancroft.
" You are familiar with the never-ending dispute between this
Government and those European governments which claim to exact
military service from persons born within their allegiance, but who
have become naturalized citizens of the United States. The ques-
tion is one which seems to have been ripening for very serious dis-
cussion when the breaking out of the civil war in this country
obliged us to forego ev(UT form of debate which was likely to pro-
duce hostility or even ii-ritation abroad. It is in our intercourse
with Prussia that the question produces the' most serious incon-
veniences.
" Soon after the close of our civil war. Count Bismarck made some
offers to the United States which were conceived in a spirit of great
lii)erality. \'oiir i)i-ede('essor, the lamented Mr. Wright, was hopeful
that, through the negotiation thus opened, the two governments might
arrive at a satisfactory conclusion of the question. It soon became
apparent, however, that the United States could not surrender the
principle of the absolute right of exi)atriation, while on the other
hand Prussia was not prepared to acknowledge the principle in its
full extent.
§ B90.] TREATIES WITH GEftMAN STATES. S59
" The present attitude of Prussia is one of strength and repose, as
is also that of the United States. Prussia might now even derive
strength from a concession of the democratic principles upon which
we insist.
" I will thank you to look over the records of your legation so as to
review your early impressions upon the subject, and thus form for me
an opinion whether the discussion can now be reopened with a pros-
pect of success. In that case you will bring the question in the i:)roper
W^y to the attention of Count Bismarck.
" Mr. Yeaman, our indefatigable minister at Copenhagen, has just
published there an arginnent upon the subject. It has so much merit
that I have instructed him to send you a copy thereof."
Mr. Seward, See. of State, to Mr. Bancroft, inin. to Prussia, Auj?. 22, 1807,
MS. Inst. Prussia, XIV. 480.
" Your despatch of the Bd of March, No. 47, has been received.
The naturalization treaty still remains before the Senate. It meets
with some opposition from a class of unnaturalized Germans who
prefer to agitate for more rather than to accept what has been agreed
upon.
" There is a partial indifference also in the Western States, result-
ing from the fact that their State constitutions and laws admit a
preliminary declaration of intention and eighteen months' residence
to qualify the emigrant as a member of the political state. Never-
theless, the prospect for the treaty is favorable. Indeed, the chair-
man of the Committee of Foreign Affairs in the Senate assured me
yesterday that he thought the treaty would be ratified within the
next forty-eight hours, an assurance which is very satisfactory, when
we consider the other grave occupations with wdiich the Senate is now
engaged."
Mr. Seward, Sec. of State, to Mr. Bancroft, niin. to Prussia, March 23,
18(58, MS. Inst. Prussia. XIV. 508.
For the opinion of Bismarciv as to the effect of tlie treaty, see S. Ex. Doc.
51, 40 Cong. 2 sess.
As to the negotiation of tlie treaty, see Mr. Fish, Sec. of State, to Mr.
Davis, min. to Germany, No. Ill, July 21, 1875, MS. Inst. Germany,
XVI. 70.
By the treaty with the North German Confederation the citizens or
subjects of one of the contracting parties " who become " naturalized
within the jurisdiction of the other, and who shall have resided
therein uninterruptedly for five years, are to bo treated as naturalized
citizens of the latter. By the treaties with Baden, Wiirtemberg, Ba-
varia, and Ilesse, citizens or subjects who " have " or " shall " Ix'come
naturalized, and who have so resided, are to be treated as naturalized
citizens. It thus appears that, of the treaties mentioned, four " ex-
360 NATIONALITY. [§ 390.
pressly relate to past acts of naturalization as well as to future ones,"
while the " ni(>st important one is entirely silent as to past acts."
Mr. Fish. Soo. of State, to Mr. lianeroft. niin. to Germany, April 14, 187."^,
For. ]{«'!. IST.".. I. L>7n. 2S(».
" I am able to assure tlio Dopartinent that tho phrase in wliicli tlie words
* wlio iKH-onie' are iisinl is understood to l)e a description of i>ersons,
and to include i)ast. i)resent. and future." (Mr. Bancroft, niin. to
(Jerinany. to Mr. Fish. Sec. of State, May 8, 1873, For. Rel. 1873,
I. 2S4. •JS7.)
As to the treaty with Ilt'sse. see Mr. Fish, Sec. of State, to Mr. Mayns,
.June 1:5. 1S70. S."> MS. Doni. Let. S2.
As to the treaty with Austria-Iluufrary. see Mr. Fish, Sec. of State, to Mr.
Kanders. .July 12. 1S70. 8.". MS. Doni. Let. 282.
As to North (Jerniany. see Mr. Fish, Sec. of State, to Mr. Gietz, Feb. 8,
1871, 88 MS. Dom. Let. 220.
In 1873 the United States proposed a revision of the naturalization
treaties, and stated that the extension of the provisions of the treaty
with the North (Jernian Union to the other States w'ould, in the opin-
ion of the l*resident, be the simplest and best way to solve the ques-
tion, adding to it such a provision as might be necessary under
German laws to enable Germans who had declared their intention to
become citizens of the United States, but had not yet become such,
to inherit real and personal property in Germany, as well as a
provision that the effect of the treaty should extend to all past
naturalization. The proposal was declined.
Mr. Fish, Sec. of State, to Mr. Bancroft, rain, to Germany, April 14, 187.3,
For. Kel. 1873, I. 270. 281 ; same to same, June 4, 1873, id. 292, 293.
In a dispatch of May 8, 1873, Mr. Bancroft traces the history of
the negotiation of the treaties and expounds their meaning. He
says: "I am unable to find in the treaties of naturalization all the
defects which are suggested. On the contrary, I think that the most
important of them do not exist and that others are of no practical
moment."
Mr. Bancroft, min. to Germany, to Mr. Fish. Sec. of State, May 8, 1873,
For. Kel. 1S73. I. 284.
In a disi)atch of May 8, 187,3, Mr. Bancroft said: "I do not re?:ard it as
a misfortune tliat no treaty provision exists jn'otecting the rights of
iidieritance of the emigrant, where the citizenship of the one country
is lost and that of the other not yet acquired, because this is now
exceed! ufily well rcirulated by the laws of (Jerniany for (Jermans.
This is proved in the very case of Klatt, where his inheritance was
hold safely for him by the Prussian functionaries, and when he could
not be foiuid. and so conld not apiwint an a«ent, an offer was made
to pay the i)n)perty over to an otHeial of the United States." (For.
Rel. 1873, I. 280.)
§ 391.] TREATIES WITH GERMAN STATES. 361
(2) CONDITIONS OF CHANGE OF ALLEGIANCE.
§391.
By the treaty with the North German Confederation, citizens or
subjects of the one country who become naturalized citizens of the
other, and " shall have resided uninterruptedly " within the latter
five years, shall be treated as its naturalized citizens. A similar pro-
vision is made in the naturalization treaties with Baden, Bavaria,
Hesse, and Wiirtemberg, but in the case of Bavaria, by a protocol
signed at the same time as the treaty, it is agreed that the words
" resided uninterruptedly " do not mean " a continued bodily pres-
ence; " that " a transient absence, a journey, or the like, by no means
interrupts the period of five years contemplated by the first article;"
and that a five years' residence may indeed not be required where the
individual has previously been discharged from his original citizen-
ship. By this protocol " we are boimd to a construction of the word
' uninterruptedly ' which we have not a right to insist upon " as to
the other treaties.
^Ir. Fish, Sec. of State, to Mr. Bancroft, niin. to (iermany, April 14, 1873,
For. liel. 187.*}, I. 279, 280.
" There was no in-otocol witli North Germany, but the treaty was ex-
phunod in parliament hy the North (Jerman Union, and the Bavarian
negotiator of the Bavarian treaty simply inserted Count Bismarck's
words in the Bavarian protocol, making no difference, and intending
to make no difference, between the two treaties." (Mr. Bancroft,
min. to Germany, to Mr. FLsh, Sec. of State, May 8, 1873, For. Rel.
1873, I. 284, 287.)
"A person exceptionally naturalized by reason of his service as
a soldier, upon proof of one year's residence, is obviously not within
the protection of the convention with the Xortli German Union
unless he has resided five years within the United States, but in re-
spect to the question of what constitutes residence and when it is to
be deemed interrupted, or when he shall be regarded as having re-
nounced his allegiance to the United States, he is to be judged in the
same manner as other naturalized citizens."'
Mr. Fish, Sec. of State, to Mr. Bancroft. Se|)t. 20, 1S70, MS. Inst.
Prussia, XY. 157.
S. was naturalized March 27, 1869. The record recited that he
had resided in the United States more than five years. It appeared
by his own aduiissions, made to the Auierican legation in Berlin,
that he had not at the time of naturalization resided in the United
States five years. The record also recited that he had enlisted in
the United States Ai'my in ISC);"), and had been houorably discharged.
In an opinion of January 21, 1871, the Attoriiev-(Teueral said: " This
fact [of enlistment and discharge] has no bearing upon the matter
362 NATTONALTTT. [? 391.
in haml, Ihvsiusc nattiralization, unless accompanied by a five-years'
residence in the adopted country, confers no rights under the treaty.
" Hence I am of opinion that Mr. Stern, though reguhirly natu-
ralized in tlie United States, not having liad an uninterrupted resi-
dence of five years here, is not entitled to the immunities guaranteed
by the treaty with North (lermany of 1808."
Akerman, At. Gen.. 1871. 13 Op. 370, .377. " fn that opinion the Department
fully concnrs. niid tho minister of the I'nited States at Berlin has
heen iHlvised aix-ordinsl.v." (Mr. Fish. See. of State, to Mr. Strong,
M. C March 7. 1871. 88 MS. Doin. I^et. 443; Mr. Fish, Sec. of State,
to Mr. liancroft, .Tan. 27, 1871, MS. lust. Prussia, XV. 195.)
See Williams. At. CJen., 1872, 14 Op. 154; 1873, 14 Op. 205.
The Bancroft treaties require, as conditions of expatriation, both
an uninterrupted residence of five years and naturalization. If,
therefore, a person be naturalized in the United States in less than
five years, as under § 216G, R. S., relating to" the naturalization of
persons m the military service of th« United States, he must, in
order to obtain the benefit of the treaty, also complete his five years'
residence.
Mr. Adee, Act. Sec. of State, to Mr. Kunze, Aug. 3, 1897, 220 MS. Dom.
r.et. :i8.
But he need not l)e naturalized again, after the completion of the five
years' residence. (Mr. Hay. Sec. of State, to Mr. Stewart, May 10,
1900, 245 MS. Dom. r.et. 47.)
Richard Braeg, a native of Baden, was admitted to citizenship of
the United States at San Francisco, California, July 10, 1879. In
the following year he returned to Europe, and settled on an estate
in Switzerland near the German frontier, but conducted a business on
the German side of the line at Constance, in Baden, where a prose-
caution was instituted against him on the charge of having made
insulting remarks about the German Emperor and the Grand Duke
of Baden at Tivoli, in Switzerland. He was acquitted by the court
at Constance on the ground that not being a German he was not
answerable for the commission of the offense on foreign soil. An
appeal was taken by the state's attorney to the imperial court at
Ix'ipsic, where tlie (juestion was raised as to the defendant's loss of
German nationality. It appeared that he had resided in Europe
from June, 1874, till April, 1870. The imperial court therefore held
that he was not naturalized either in conformity with the treaty
Fjetween the United States and the North German Union of Feb-
ruary 22, 1868, or with that between the United States and Baden
of July 10, 18f)8. the latter recognizing as citizens of the United
States citizens of Baden who have resided uninterruptedly within
the United States five years and have become citizens of the United
§ 391.] TREATIES WITH GERMAN STATES. 36B
States '' before, durinfi:, or after that time " — werds which are not
lound in the treaty of February 22, 1868.
Mr. White, min. to Germany, to Mr. Blaine, Sec. of State, No. 233, July
30, 1881, 29 MS. Desp. from Germany.
It is to be ob«erve(T that see. 2170 of the Revised Statutes of the United
States declares : " No alien shall be admitted to become a citizen
who has not for the continued term of five years next preceding his
admission resided within the United States."
It seems that Braeg resided in the United States eight years, from
1866 to 1874, and declared his intention to .become a citizen, but left
in 1874 without having become naturalized, and established in Baden
the business above referred to, his personal residence being just across
the line in Switzerland. When he made his journey to the United
States in 1879, he was not accompanied by his family, and his business
in Baden was duly carried on in his absence. " AVithout recognizing
as binding on this Government," said Mr. Blaine, " the decision of
the supreme court at Leipsic, the- circumstances attending Mr. Braeg's
removals of residence may well be taken as evidence of his voluntary
expatriation or renunciation of his American allegiance and citizen-
ship. . . . His whole conduct in the matter bears the marks of
fraud. Putting the question therefore on this latter ground, he is
not entitled to the protection of this Government, or its interference
on his behalf."
Mr. Blaine, Sec. of State, to Mr. Everett, charge at Berlin, No. 2oG, Aug.
20, 1881, 17 MS. Inst. Germany, 113.
H. Stein was naturalized in the United States, Nov. 30, 1887, He
was a native of Prussia, and emigrated to the United States in 1880.
Less than two years later, in March, 1882, he returned to his native
place, where he remained till April, 1884, when he went again to the
United States. In August, 1888, he again returned to Germany,
Avhere, in December, 1800, he was put into the army. AVith regard to
this case, Mr. Blaine said :
" The 1st article of the treaty of 1868 provides that Germans who
become naturalized citizens of the United States, ' and shall have
resided uninterruptedly in the United States five years,' shall be held
to be American citizens and shall be treated as such. This substan-
tially embodies a provision of the laws of the United States on the
subject of naturalization. In addition to the reasons existing under
fhe treaty, the foreign office alleges that Stein's behavior in other
respects than those mentioned shows that he emigrated solely for the
purpose of avoiding the })erf<)rmance of military duty.
" Upon all the facts, you indicate the opinion that Stein's ease if!
not a meritorious one and should not be pressed. Undoubtedly upon
the facts stated in the note of the foreign office, the complainant is
364 NATIONALITY. [§ 392.
not entitled to the interposition of the Government of the United
States. Whatever the motive of his return to his native country, it is
plain that he never resided uninterruptedly in the United States for
live vears.
" He first resided less than two years in the United States, and then
more than two years in (lermany. Afterwards he resided something
more than three years in the United States and was naturalized, and
then went apiin to (iermany, where he has since resided. Private
and domestic reasons do not excuse a failure to comply with the
treaty in re<rard to residence,' or with the requirement of the statutes.
The period of five years to be spent in this country prior to naturali-
zation is intended as a period of prej)aration for the duties of citizen-
ship and is of the highest importance. To say that a mere desire or
purpose to reside in the United States is all that is necessary if the
ties or duties of relationship require the individual to reside in his
native country would be to reduce the requirement to an absurdity,
for in that case a residence of one day would be as effective as an
uninterrupted residence of five years. And to say that an individual
had resided here uninterruptedly for five years would not mean that
he had actually done so, but that he would have done so if it had been
convenient, and that because it was not convenient or practicable he
was to be regarded as having done so. If private duties require a
man to remain in the land of which he is a citizen or subject, he can
not ask to escape the duties of citizenship there, and the Government
that would seek to assist him to evade them would be strangely for-
getful of the claims it may have upon the allegiance of its own
citizens."
Mr. Blaine, Sec. of State, to Mr. Thelps, inin. to Germany, No. 233, March
30, 1891, MS. Inst. (Jeriuany, XVIII. 4.m
(3) QUESTION AS TO ALSACE-LOBBAINE. >
■. T-
§392. . .
" WTien the [German] Empire was formed we had entered into
treaties for the regulation of naturalization with the North German
Union, with the Grand Duchy of Baden, with the Kingdom of
Bavaria, with the Grand Duchy of Hesse as to the citizens of the
parts of the (irand Duchy not included in the North German Con-
federation, and with the Kingdom of Wiirtemberg.
" The first defect in the existing treaties is that they are not coex-
tensive with the limits of the empire. The provisions of none of the
existing treaties extend to Alsace and Lorraine, which form an in-
tegral part of the emi)ire, and from which there has long been a
§ 392.] TREATIES WITH GERMAN STATES. 365
large and valuable emigration to the United States, whose status
deserves recognition and protection."
Mr. Fish, Sec. of State, to Mr. BaiK-roft, luin. to Genimny, April 14,
1873, For. Rel. 187.*}, I. 280, expressinj^ tlio opinion tliat there should
be ii revision of the treaties.
As to a protocol signed by Mr. Blaine, Secretary of State, and Mr. von
Schlozer, Dec. 2, 1881, but not carried into eft'ect, touching tlie appli-
cability of the treaties to Alsace-Lorraine, see Mr. Blaine to Mr.
Everett, charge at Berlin, Dec. 5, 1881, MS. Inst. Germany, XVII. 130.
As to the decision of the Gerinan Government that the treaty with the
North German Union, of Feb. 22, 1868, did not apply to Alsace-
Lorraine, and the offer to negotiate for an additional treaty, see For.
Rel. 1880, 441, 448, 449.
Ml'. Evarts declined to accept a ten years' absence as a basis of nego-
tiation. (For Kel. 1881, 450, 452.)
Charles L. George was born in Alsace, January 9, 1859. It ap-
peared that his father, who was a native of the same ])rovince. then
belonging to France, emigrated to the United States in 1840 and was
naturalized in 1848, but returned to Alsace in 1851 and remained
there till May, 1875, when, the son being sixteen years of age, the
father came with him to tTie United States, where they took up their
abode and continued to live. May 10, 1884, in anticipation of a visit
to Alsace, the son, although he had on coming of age exercised the
rights of a citizen of the United States by reason of his father's
naturalization, was himself naturalized. On July 12, 1884, he was
arrested in Alsace on a judicial prosecution for avoidance of military
duty to the German Government and was cast into prison, where he
was kept for forty days. When arrested he had on his person 03
marks, of which when he was released 40 were retained, as he was
informed, to pay for his board while in prison and his railroad trans-
portation. On his return to the United States he placed the facts
before the Department of State, which instructed the legation at Ber-
lin to bring them to the attention of the foreign office with a request
for explanations. The Department observed that the case seemed to
present certain new points which were at variance Avith the course
that the German authorities were understood to have adopted in deal-
ing with naturalized citizens of other countries whom they found in
Alsace or Lorraine. It was inferred, said the Dei)artment, from the
edict of the Statthalter of August 23, 1884, enclosed with Mr. Ever-
ett's Xo. 327, of September 4, 1884, that, if the German Government
still adhered to its previous refusal to apply the Bancroft treaty to
Alsace-Lorraine, the utmost penalty for foreign citizens was expul-
sion from the province in case they declined to resume Gernum
nationality, and that, if the third article of the edict was convctly
interpreted, luimarried foreigners would be allowed to remain during
3^ NATIONALITY. [§ 3^2.
good behavior, and that, in case they should nuirry, tlieir children
nii'jht remain till they reached the military age. There was no sug-
gestion of fine or iniprisonniont in any case as a penalty for avoid-
ance of military duty by emigration. In this relation the Depart-
ment referred to the case of Constant Golly, who, although he was
charged with an intention to evade military duty, was neither fined
nor imprisoned, but was simply told to leave by a certain date.*
Besides, in George's case, said the Dej^artment, the grounds were not
evident on which the authorities could base a charge of want of good
faith on his part, since the time of suimnons for militai'y service was
too far dis-tant when he emigrated.
The case was brought to the attention of the German Government
by a note of Mr. Pendleton, then American minister at Berlin, to
Count Hatzfeldt, of xVugust 13, 1885. In its reply, which was dated
January 22, 188(5, the CJernum foreign office, after corrt^cting certain
statements which had been made as to the original citizenship of the
father, whose original nationality had been represented as German,
declared that the father, after his return to Alsace, concealed tlic
fact that he had been naturalized in the United States, and was
treated as a French subject, in which character his name stood on the
electoral lists from 1857 to 1874, and that when in 1875 he went the
second time to America he procured a passport, which was to be
effective for two years, from the German authorities. But, said the
foreign office, even assuming that the father at the time of George's
birth was an American citizen, the son on the transfer of Alsace to
Germany became, under the law of June 1, 1870, a German subject.
In a note of February 1, 1880, Mr. Pendleton, in reply to the for-
eign offia', argued that neither the father nor the son was ever a
German subject, since, being French by origin, and American by
naturalization, they did not take any steps to become German sub-
jects after the acquisition of Alsace by Germany, and that the law of
June 1, 1870, could not apply to them, since it related only to tlie
acxjuisition and loss of (ierman nationality.
March 2('), IHHC), the German foreign office, replying to Mr. Pendle-
ton's ziote, stated that all persons lx)i-n in Alsace-Ijoraine, who, accord-
ing to the Freudi law of 1851, were held to l>e Frenchmen, became
(iermans with the cession of the territory, in so far as they did not
make valid choice of French nationality under Article II. of the
treaty of p^'ace of May 10, 1871.
With reference to this correspondence, Mr. Bayard, in an instruc-
tion to Mr. Pendleton of April 27, 1880, said :
" Your dispatches, No. 188 of the 1st of February last, and No. 219
of the 20th ultimo, in relation to the questions wliich liave arisen with
<» For a report of Golly's case, see For. Kel. 1885, 415.
§ 3^2. 3 TREATIES WITH GEBMAN STATES. 367
the Imperial Government in relation to the citizenship of Charles L.
George, have been received and considered.
" It is an established principle of international law that a child
born abroad to a citizen of the United States partakes of his father's
nationality, subject, however, to the divesting of this nationality by
his election, when he arrives at full age, to accept allegiance to the
country of his birth. This right cannot be taken from him either by
municipal legislation or by treaty enactments to which the country of
his inherited allegiance is not a party. From this it follows that the
American citizenship, inherited by Mr. George and elected by him
when of full age, cannot be divested either by the municipal laws of
Germany or by a treaty between Germany and France.
" It is also a principle of international law that allegiance can bo
divested by naturalization in a foreign land, and that this prerogative
cannot be divested by the municipal legislation of any particular
country to which legislation the naturalizing country is not a party.
Hence, even if the first position here taken be waived, which it is not,
it must be insisted that Mr. George is now a citizen of the United
States, not subject to the municipal laws of Germany unless it be
shown that he has abandoned his United States citizenship. . . .
" The German foreign office seems to have ignored the American
citizenship of Mr. C. L. George as the son of a naturalized citizen of
the United States, and to have assumed that having been born in
Alsace he became a citizen of France, under the French law of 1851,
and therefore was subject to German law as a citizen of Alsace-
Lorraine, after its cession to Germany. But mider the rules of inter-
national law, the son, having been born in Alsace-Lorraine, of an
American father, had the option of remaining there until his majority
and electing to take the allegiance of his birth, or of claiming the
allegiance of his father. It aj)pears, however, that he did not remain
in xUsace until he attained his majority. He came to the United
States during his minority, and when he arrived at his n.ajority
evinced his election of American citizenship by exercising the rights
which pertain thereto, and by other acts indicating the same election.
Under these circumstances his subsequent taking out of naturalization
papers is to be regarded merely as cumulative evidence of his election
to take the United States as the country of his allegiance. He was
already a citizen of the United States, and was none the less so
because he may have entertained unfounded doubts on the subject, as
from his conduct would appear to have been the case."
Mr. liiiyard, Sec. of State, to Mr. I'endleton, juiu. to Germany, July 7,
1885, For. Itel. 188.1, 420; Mr. Pendleton to Count Ilatzfeldt, Aug. 1.3,
1885, For. Rel. 188('., .310; Count Bismarck to Mr. Pendleton, Jan. 22,
1880, id. :i20; INIr. Pendleton to Count Bismarck, Feb. 1, 1S8<), id. 321 ;
Mr. I'endleton to Mr. Bayard, Feb. 1, 1880, id. .317; same to same,
368 NATIONALITY. [§392.
Mnreh 20. 1880, id. S2:j ; Mr. Bayard to Mr. Pendleton, April 27, 1886,
id. .'527.
( In an instruction to the legation at Berlin, No. 174, December 11, 188(J,
the Department of State, enclosing a letter from the attoi'ney of C. L.
G(H)rge. stated that the attorney had been advised that he was at
liberty to file a claim for danniges in case claims of the class ni
(juestion shoiild ever be made the .subject of a demand for indenuiity
as a whole. The Dei)artment also observed that it was assumed that
nothing further had been heard from the German foreign office with
resi)ect to the case. The legation replied, .January 3, 1887, that the
discussion on the part of Germany appeared to be closed, and inti-
mated that it would be useless at the moment to pre.ss upon the
German Government a view of the case different from that which it
had taken. (Mr. Pendleton to Mr. Bayard, Nov. 8, 1887, For. Kel.
1887, 402-404.)
" You state that certain difficulties are, or may be, made by the Ger-
man Government in the way of recognizing in Germany the validity
of such naturalization, and first, that the German Government main-
tains that the Bancroft treaty, affirming and limiting the rights of
Germans naturalized in the United States, does not apply to the dis-
trict of Alsace-Lorraine. It is true, that in the instruction of Mr.
Fish to Mr. Bancroft, April 4, 1873, quoted by you, it was suggested
to the German Government that it should assent to a naturalization
treaty covering the whole Empire; but this position was taken, not
because any doubt existed that the Bancroft treaty was not coexten-
sive in its operation with the Empire, but because an intimation had
been given that it would be more consistent with the views then held
by the German Government that a new treaty should be executed, and
because, in case of such a new treaty, it seemed proper that it should
be made expressly to apply to all the newly acquired territory which
the German Empire included.
■ " So far from this Government acquiescing in the view that the
Bancroft treaty did not cover Alsace-Lorraine, Mr. Evarts on Decem-
l)er 30, 1882, in reply to a dispatch from Mr. White in Loeb's case, in
which an arrest had been made on the basis of such nonapplicability,
wrote as folloAvs:
" ' This Department fully approves of Mr. White's action in refer-
ence to Mr. Loeb's case, and, moreover, heartily concurs in the view
expressed by the minister tliat this Government can not assent to the
doctrine of the nonapplicability of the treaties of 1808 to Alsace-
I^)rraine. You will thwefore continue to discreetly but firmly press
Mr. Loeb's case ujx)!! the attention of the Imperial German Govern-
ment initil a favorable disposition of it is secured.'
"As far as I can learn from the records of this Department, the
German Government iie\ei- insisted on final action adverse to citizens
of the United States based on the assumption that the Bancroft
treaty was not applicable to Alsace-Lorraine.
§ 392.] . TREATIES WITH GERMAN STATES. 369
" It is hardly necessary for me to remind you how serious would
be the consequences if. such a position should be conceded. The
United States, in a case in which the position of the parties in respect
to such extension of treaties over the German Empire was reversed,
took the ground, in response to the application of Germany, that
such extension could not be contested. Thus it was held by Mr.
Evarts, as Attorney-General, that as b}^ the formation of the North
German Union, after the battle of Sadowa, the entire navy of the
union was placed under the command of Prussia, the provisions of
the treaty of May 1, 1828, between the United States and Prussia for
the arrest of deserters from the public vessels of the respective coun-
tries, applied to public vessels sailing under the flag of the North
German Union. (Op's Att'ys-General, Vol. XII. pp. 4G3-467.)
" The United States have never denied the applicability of all
treaties executed by them to territories acquired by them subsequent
to the date of such treaties. On the hypothesis that territories
annexed by a sovereign are not bound by the treaties previously en-
tered into by him, California, annexed by the United States by the
treaty with Mexico of 1848, would not be subject to the provisions of
the treaty with Prussia of 1828. It is difficult to suppose that Ger-
many would insist on a construction which would divest her, so far
as concerns the California coast, of the valuable commercial rights
conferred on her by that treaty, and would deprive her consuls at
California ports of the important prerogatives which that treaty
gives; the very one-sidedness of such a construction discloses its
incompatibility with the principles of justice as well as of inter-
national law. All the citizens of the United States, Avith their com-
merce, would be entitled to the protection of the treaty everywhere
in Germanyj except in Alsace-Lorraine; but German subjects and
German commerce would be equally deprived of the protection of the
treaty on our Pacific coast."
Mr. Bayard. Sec. of State, to Mr. Poiidloton, niin. to Germany, June 28,
1887, For. Uel. 1887. ;«)4,-:>,a-). This instruction related to the ehiim of
Alhert IJeridiard aj^ainst tlie (Jernian Government for his arrest and
imprisonment at Miilhausen, in Alsace, in 1887, on a charj^e of par-
ticipation in seditious conspiracy. On further investigation the
Department of State decided that the case should not he pressed
for the reason that the facts indicated that Iternhard returned to
Alsace aninio niavcndi. (For. Kel. 1888, I. Gol-(!35.) It was also
ascertained that Bernhard was in 188.3 admitted at his own re-
quest as an Alsatian to memberslii]) in the Lh/iic (lex Patriotrx. a
French patriotic organization, on payment of the usual fees, althoufrli
in Ai)ril, 1884. his name was erased from the list of members for
nonpayment of dues. (For. Rel. 1880, 178.)
" The circumstances of the cession of these ]irovinces as the result
of the Franco-German war, invested them with a peculiar and excep-
H. Doc. 551— vol 3 24
370 NATIONALITY. [§ 302.
tional status from the l)e<>:inniiig. The war on the German side was
wa<re(l by Prussia, with the States of the North (rerman Union and
the independent Kin<;doms as allies. During the interval Ix^tween
the ijreliminarv peace of Versailles and the definitive treaty of peace
of Frankfort, by which the cession was made complete, the States
theretofore at war with France confederated their political existence
as an empire, and it was to this Empire that the French provinces
were ceded.
"Alsace and I^rraine had obviously, as stated in a note of Prince
von Ilohenlohe to Mr. White, August 5, 1880 (Foreign llelations
1880, p. 444), at no time constituted a part of the North (jrerman
Confederation or belonged to one of the South German States, and
therefore did not enter the imperial association as constituents.
Their condition was rather that of domanial property in wdiich all
the confederated States possessed an undivided interest. It is upon
this ground that the German position of nonapplicability of treaties
theretofore existing with the North German Confederation or tlie
South German States principally rests.
" The anomalous situation so created could not fail to attract
early attention, and by instruction No. 5G9, April 14, 1873, Mr. Fish
called Mr. Bancroft's attention to the circumstances that the existing
treaties with the several German States " are not coextensive with
the limits of the Empire. The provisions of none of the existing
treaties extend to Alsace and Lorraine, which form an integral part
of the Empire and from which there has long been a large and valu-
able emigi'ation to the United States, whose status deserves recogni-
tion and protection." Mr. Bancroft was therefore instructed to pro-
pose an amendment of the existing naturalization treatieSj reducing
them to one uniform code of intercourse in that important regard,
embracing the whole territory of the new Empire. (Foreign Rel::-
tions, 1873, p. 280.)
"Mr. Bancroft rejilied (No. 481, of 1873), discussing the entire
(question in the various and complex aspects it bore by reason of tho
existence of five separate treaties of naturalization with the several
States subsequently confederated as an empire. Mr. Bancroft's
general conclusions were that the existing treaties sufficiently met
the cases likely to arise in the several States of the Empire, and espe-
cially so as the autonomous reservation of legislative and adminis-
trative rights in each State made the disposal of questions of natu-
ralization arising Avith them dependent upon the lex loci, Avhich was
not reducible to a conmion standard throughout the Empire. In the
course of that reply Mr. Bancroft said:
'"The Department raises the question as to the tv:o provinces of
Alsace and Lorraine and I am able to answer that the Government is
not disposed to deny to emigrants from those two provinces the
§392.] TREATIES WITH GERMAN STATES. 37l
benefits of the treaty with the North (ieriiiau Union, to which I
desire to believe they have a right. But on this point I have ad-
dressed to the Department a separate letter.' (Foreign Relations,
1873, p. 287.)
" The separate letter thus mentioned is Mr. Bancroft's dispatch.
No. 480, of May 8, 1873, reading thus:
"'Alsace and Lorraine having been annexed to the German Em-
pire by treaty Avith France, I hold that the naturalization treaty
ratified with the North German Government holds good with regard
to both of them, yet as the North German Union was already merged
in the German Empire before the cession of the two provinces was
completed, it may be better to obtain from the German Government,
in some written form that shall perfectly bind the (Government, an
ackno^vvledgment that the benefits conferred on our adopted (lerman
citizens by the naturalization treaties shall equally extend to emi-
grants from Alsace and Lorraine. If you will permit me to do
this, I have no doubt I shall be able to obtnin^ from this (government
such a declaration as shall be perfectly satisfactory to all parties
interested in the matter.' (Not printed. MS. Dispatches, Ger-
many, Vol. III.)
" Mr. Fish, in reply to these two comnumications, instruction No.
583, June i, 1873, repeated his position that a new general treaty for
all Germany in place of the several conflicting treaties was desirable,
and indeed necessary, AVhile much regretting that the (iovernment
at Berlin was not disposed to listen favorably to the suggestion, not-
withstanding what Mr. Bancroft had said on the subject, Mr, Fish
still thought ' it would be better to remove these ditferences and to
have but one rule for all Germany." ]Mr. Bancroft's proposal to pro-
cure a temporary declaration from the Imperial (iovernment touch-
ing the applicability of the North German treaty to Alsace and
Lorraine did not find favor in Mr. Fish's eyes. He said : ' Mean-
while, it is not wise to take any halfway measure as to Alsace and
Lorraine.' (Foreign Eelations, 1873, p. 203.)
" Here the matter rested until 1880, when reneAved correspondence
occurrexl on the subject. In the interval the military cases affecting
naturalized Alsatians and Lorrainers had been disposed of in accord-
ance with the provisions of the North German treaty, thereby tacitly
admitting its application and virtually applying it to naturalization
questions arising in those provinces. In rej)lying to Mr. White's
demand for the release of John Schehr, a native of Alsace, Prince
Hohenlohe based [his] refusal upon the nona])plical)ility of any ex-
isting treaties between the United States and the (lerman States to
.the provinces of Alsace and I^orraine, and the consequent subjection
of such cases to the local laws of the provinces alone.
372 NATIONALITY. [§ 392.
"Mr. White replied at considerahle length, urging a reconsidera-
tion of this decision, in view of the circumstance that the treaty of
18(>8 had Ix'en ai)plied to Alsace and Lorraine and acted upon by
both the German and American governments during the whole of
the ])eriod which had then elapsed since the incorporation of those
districts into the P^mpire. For this note you may 'consult Mr.
"White's dispatch No. 140, September 1, 1880. (Foreign Relations,
1880, p. 441 et seq.)
" Mr. Evarts approved Mr. White's position by instruction No.
138, Octolx'r 7, 1880. No definite acquiescence therein appears to
have l)een vouchsafed by the Imperial Government, but thereafter
two of the cases then in dispute, those of Aaron Weill and Alois
Gehres, were settled by i^ardon and remission of fine, and in report-
ing this result Mr. Everett, then charge d'affaires, in his dispatch
No. 4, November 22, 1880, said :
" ' I venture to think, therefore, with these tw^o cases as precedents,
that no further difficulty will be made by the German Government
in the settlement of sound cases of returning Alsatians, and that
the refusal to extend the benefit of the treaty of 1808 — with the
North (ierman Union — to Alsace-Lorraine originated in that prov-
ince and has not been indorsed by the ministry of state in Berlin.'
"In 1883 consideration of the question was revived by reason of
the agitation than mooted in Congress in favor of a new naturali-
zation treaty between Germany and the United States, aiming to
secure for returning naturalized Germans greater or more assured
privileges of residence.
" Mr. Sargent, in his dispatch No. 99, January 22, 1883, discussed
the general situation and incidentally called attention to the fact
■that the imperial law of January 8, 1873, specifically extended to
Alsace and Lorraine the North German law of June 1, 1870, con-
cerning the acquisition and the loss of confederate or state citizeiv
shij). By that law citizenshi]) could be lost only by discharge upon
petition, by decree of the authorities, by a ten years' residence
abroad, or in virtue of a treaty upon five years' residence accom-
panied by naturalization abroad. Mr. Sargent thereupon remarked:
"'As the five years' clause requires to be vitalized by treaty, and
was pi-obably intended as a sanction or affirmation of the American
treaties, it would not be of force in Alsace-Lorraine unless the
treaties can be held to apply to these late-acquired provinces. But
the existence of this feature in the law did not prevent the act of
extension of the whole law to Alsace-Lorraine, by which the impli-
cation njight arise that (Jermany was ready to extend the treaties.'
(Foreign Kelations, 1883, p. .332.)
"The movement towar-d the negotiation of a new general naturali-
zation treaty with the Empire did not, however, take shape, but as
§ 392.] TEEATIES WITH GERMAN STATES. 373
late as August 23, 1883, the German Government removed the fine
and attachment from Xavier Ehret, a naturalized Alsatian, upon
whom these penalties had been imposed in his absence.
" In 1887 a case arose affecting one Albert Bernhard, a citizen of
the United States, who emigrated from xVlsace-Lorraine in 1872.
This case was somewhat peculiar, Bernhard having emigrated while
the French civil code was still in force in Alsace. When he acquired
citizenship, the German law of June 1, 1870, introduced as above
stated into Alsace-Lorraine in 1873, prevailed for the inhabitants
of those provinces. The German (xovernment contended that
Bernhard had not complied with these provisions, having neither
obtained a dismissal from his German allegiance nor remained
abroad ten years, and that he was therefore to be treated as a Ger-
man subject. As this contention ignored the five years' treaty clause,
the reply of the German Government appeared to assume non-
applicability of our North German treaty to Alsace-Lorraine. In
an instruction sent by Mr. Bayard to Mr. Pendleton, No. 236, June
28, 1887, Bernhard's case is very fully discussed and incidentally
the question of the applicability of the existing Bancroft treaty to
Alsace-Lorraine is treated. Mr. Bayard said: [Here follows a long
quotation from Mr. Bayard's instruction to Mr. Pendleton, of June
28, 1887, printed supra.]
" From this time imtil the present no formal discussion of the ques-
tion is found, although in various cases the German assertion of the
nonapplicability of the treaties to the annexed Reichsland has been
advanced with more or less distinctness. AVhile no overt contesta-
tion of that position has been made b} this Government, the forego-
ing review shows that for many years it has withheld formal con-
firmation of Mr. Fish's apparent admission that the treaties did not
so apply. Your present dispatch is the latest and most formal
announcement of the German contention. While, on the one hand, it
may be said that the attitude of the United States has not been uni-
form, involving a reversal of the position assumed by Mr. Fish in
1873, it is clear, on the other hand, that until very recently the Ger-
man attitude has been equally contradictory, the treaties having been
virtually applied to Alsace-Lorraine during many years.
"The question has not, however, been formally revived and ]U'e-
sented by this Government of late, owing to the j)ros[)ect of an early
incorporation of Alsace and Lorraine into the Emj)ire, either as con-
stituents or as i)art of the territorial domain, of one of the present
constituents of the Empire. With such incorporation, of course, the
question would find its ready disposition, either by the obvious and
incontestable extension of any treaty between such incorjiorating
State and the United States, or by exi)ress conventional arrangement
which would then become proper and necessary.
\
374 NATIONALITY. [§ 392.
"The iK'w nnihassiidor to (ionnaiiy will, as soon as conveniently
practicable after reaching his post, make an examination of the gen-
( nil (]iiesti()iu with ^i view to ascertaining whether the difficulties
which Mr. liaiicroft discerned in 1S73 in the way of negotiating a
general treaty of naturalization embracing the whole German Em-
I)ire still exist, or, if existent, are removable. As to this the Depart-
ment is un[)repared at present to express an opinion. But with
regard to the anomalous and peculiar positi(m of Alsace and Lor-
laine, while still holding, as it must, that no sovereign government
can be exempt from existing treaty obligations in respect to territory
acquired by it, and believing that it is incumbent upon such sover-
eign to devise practical methods by which existing treaties may apply
to such annexed domain, it is not indisposed to recognize the fact
that in practically dealing with the questions involved exceptional
difficulties may be found. It is evident, for instance, that exist-
ing treaties, even if held ap})licable to the Reichsland, would not
find distinct application in the case of a native of Alsace-Lorraine
who had emigrated Avhile those provinces were under P'rench rule,
and after ac(juiring citizenship in the United States might return
to them subsequent to their (Jerman annexation. So, too, the Ger-
man position would seem, upon analysis, to be somewhat anomalous
in respect to a native of Alsace or Lorraine emigrating and becoming
an American citizen and subsecpiently visiting another State of the
Empire with which the United States have positive stipulations in
regard to the rights of naturalized subjects.
"• This (loverinnent can hardly be expected to advance or admit the
])roposition that our existing treaties of naturalization are not appli-
cable to an Alsatian or Lorrainer in Avhatever part of Germany he
ma\' be found. Tlie (lerman contention is essentially local — based
upcjn the peculiar relation of the annexed territory to the Empire —
and rests upon the i)aramount independence of the laws of Alsace and
Lorraine alone in the absence of any convention binding those par-
ticular <Iistri('ts. This Government can not be expected to assent to
any i)ossible jiroposition that the local legislation of Alsace and Lor-
raine is paramount and executable in all the other constituent States
of the P^mpire to the supersession of our treaties with those States.
This consideration is not, however, advanced by way of argument or
jn-otest, but simj)ly as illustrating some of the difficulties environing
the present situation of Alsace-T^oi-raine, under which that territory
seems to have the remarkal)le status of an independent State, belong-
ing to an Empire, controlled as to its internal affairs by the legisla-
tion of the Tmi)erial Parliauient and yet not represented therein, nor
responsible for its conduct as an indejiendent State toward other
l)owers. As was aj)tly said by Mr. Bancroft in his dispatch No. 230,
June 5, 1871, at the time when the bill was pending in the Lnperial
§ 392. J TKEATIES WITH GERMAN STATES. 375
Parliament for establishing a government in the new province of
Alsace and Lorraine:
" ' Under the old German Empire the free States with their domain
stood directly under the protection of the Emperor. In theory
Alsace and Lorraine form a district belonging neither to Prussia
nor to any other of the German States, standing directly not under
the King of Prussia, but under the Emperor of Germany, An exact
conformity of the old precedents would make of them a republic
under the protectorate of the Emperor.' (Foreign Relations, 1871,
p. 395-.)
" As those provinces now stand and have stood for years, they seem
to enjoy a strangely admixed privilege of autonomy, protective con-
trol, and international irresponsibility."
Mr. Olney, Sec. of State, to Mr. Jackson, charge d'affaires atl interim at
Berlin, March 3, 189G, For. Rel. 1890. 187.
The foregoing instruction was occasioned by the contention of tlio German
Government in the case of Emil B. Kauffmann, a naturalized citizen
of the United States of Alsatian birth, that the Bancroft treaty of
February 22, 18(58, did not extend to Alsace-Lorraine, and that con-
sequently the question was to be determined by section 21 of the
imperial law of June 1, 1870, by which a period of ten years is
prescribed for expatriation.
Mr. Jackson, acknowledging, March 21, 189G, the receii)t of the fore-
going instruction, observed that the treaty of 1828 with I'russia had
always been considered by the German Government as applicable to
the whole of the Empire, although it was made with but a single
State. (For. Rel. 189G, 192.)
" The German Government . . . holds that this treaty [of
18C)8 with the North German Union] does not extend to Alsace-
Lorraine; and it applies to those provinces the North German law
of June 1, 1870, concerning the acquisition and the loss of confed-
erate or state citizenship. By that law citizenship can be lost only
by discharge upon petition, by decree of the authorities, by a ten
years' residence abroad, or in virtue of a treaty upon jfive years'
residence accompanied by naturalization abroad."
Mr, ITay, Sec. of State, to Mr. Smith, Jan. 2.3. 1899, 234 MS. Dom.
Let. 210,
See, to the same effect, Mr. Day. Assist. Sec. of State to Mr. ITassen-
forder. Sept. .30. 1897. 221 MS. Dom. Let. 2.53.
" For a full elucidation of the subject of the applicability of the Bancroft
treaties to Alsace-Lorraine, I have the honor to refer you to Foreign
Relations, 1890. pages 18tM92." (Mr. Hay. Sec. of State, to Mr.
Alexander. April 10. 1900. 244 JiS. Dom. Let. 247.)
See Ileintzman's case. For. Rel. 1892, 177, 180. 182.
Casimlr Ilartmann, in 1897, after arrest for military service, was re-
leased on tlie groimd that he had lost his German nationality by
more than 10 years' residence abroad. (For. Rel, 1897, 231.)
376 NATIONALITY. [§393.
Tilt' (It'i'iiiiin |K)sitl<)n was ivjilliniK'd in the case of Jonas Linpinaini,
wliosi' iMoporty was attacluHl for a military lino, but the i)roi»erty
was afterwards released on other ^rtainds. (For. llel. 1SJ)7, 2lV2-2'.'u.)
The (Jerinan (Jovernnient. while jnaintaininK that a native of Alsace did
not come within the treaty of 1808, stated that, in view of the
interposition of the United States in his behalf, the authorities of
Alsace-I^)rraine wouhl release him from his allegiance if he would so
request and pay a fine imi)Osed on him in the imperial courts at
Straslturg in IS!).") for evasion of military service. This done, he
would be i)erniitted to return to Alsace on a visit. (For. Rel. 1903,
442-444.)
.That the German (Jovernnient still maintains its jiosition with regard to
Alsace-Lorraine, and reipiires the release from nationality in such
cases to be made the subject of a petition, see the case of Emil
Vibert. For. Kel. 1!M)4, 317 et seq., citing For. Kel. 1807, 2.'}0-231,
and Mr. Olney to Mr. Jackson, March 3, 1806, For. Kel. 1890, 187,
l^ supra.
(4) rBACTICE OF EXPULSION.
§ 393.
" The undersigned, envoy, etc., of the United States of America,
bogs to recall the attention of Dr. Busch, under secre-
Correspondence of ^^j.y ^jf state, in charge of the imperial foreign office,
etc., to the note which the undersigned had the honor
to receive from the foreign office under date of December 31, 1884.
" The imdersigned, in making acknowledgment of its reception,
reserved in its contents for the appreciation of his Government.
" While the subject of the note involved the rights of American-
born sons Avhose (xerman-born fathers had during their minority
returned with them to Germany to reside permanently, a declaration
is added respecting the nationality of the father, which seems to have
been made without a sufficient consideration of the language of the
treaty of 18G8.
" That declaration is understood as follows:
" 'As regards the fathers of such sons, no doubt can exist that they
are to be regarded as having renounced their naturalization by a
longer sojourn than one of two years, ])ursuant to the treaties regu-
lating nationality of 18()8, concluded Avith the United States.'
" The Government of the imdersigned cannot find the reasons
which would justify its concurrence in this view.
"In its judgment the treaty cannot of itself convert an American
citizen into a (ierman, nor a German into an American, against his
will. Even the renunciation of one citizenship does not of itself
create another.
"It does not profess to make provision for a resumption of a citi-
zenship previously lost or renounced. Its object was rather to recog-
§ 393.] TREATIES WITH GERMAN STATES, 377
nize the obligation of a new citizenship which had been lawfully
acquired in the other country.
"The fourth article of the treaty of 18G8, in its first clause, it is
true, recognizes the renunciation of the newly acquired citzenship by
a total abandonment of the intention to return to the country where
his new citizenship was acquired. But it does not affirm the restora-
tion of the original allegiance. On the other hand, there are many
naturalized Americans who reside for more than two years in Ger-
many with the constant intent to return to the United States. They
often carry on a business in both countries, beneficially increasing the
commercial relations between the two.
" These persons, however long residing in the original country,
with the intent of later returning to the adopted country, have always
been regarded by the United States as being still citizens of the
country which they adoj)ted. And such an interpretation, it is sup-
posed, had received the acquiescence of the German Government, in
view of the optional language of the third clause of the fourth article,
which employs a different expression from that of the first clause.
Such a practical construction has been one of the most beneficial
results of the treaty. For it has served to cultivate the relation of
commer.ce and friendship between the two countries.
" The Government of the United States receives with satisfaction
the opinion declared by the German Imperial Government which
recogjiizes that the American children of parents naturalized in the
United States have an unconditional and durable American citi-
zenship.
'' On the other hand, it learns with regret that the Imperial Gov-
ernment regards itself as justified by international principles in refus-
ing the sojourn in Germany of these native-born American citizens,
although they are, as such, obedient to the laAvs and ordinances there
prevailing. In these cases it is only, a question of native citizens of
the United States. There can be no distinction as to them based on
national birth of the parents. Such children are not within the pro-
visions of the treaty of 18()8. This refusal of the right of peaceful
sojourn, therefore, seems to the American (Government to be in con-
travention of tlie sj^irit and even the letter of other treaties.
"Thus, by the first article of the treaty of 18:28 with Prussia, it is
provided that the inhabitants of the resj^ective states ' shall be at lib-
erty to s'ojoin'ti and reside hi (til jxtrfs ir/iafsoere/' of said territories,
in order to attend to their affairs; and tiiev shall enjoy to that effect
the same security and ])rotection as natives of the country Avherein
they reside, on condition of submitting to the laws and ordinances
there prevailing.'
" It can hardly be expected that the Ignited States Government can
acquiesce in a rule which, by administrative order, in either country,
378 NATIONALITY. [§ 393.
cre»itefi a cla.ss of residents who, while equally under the protection of
treaties, may W. suniniarily expelled from the country where they are
residing in jwaceful pursuit of their avocations and in obedience to
all the laws.
" If my (irovcrnment rightly understands the scope of the principle
daimeil by Dr. Busch to be a principle of international law, it asserts,
in effect, that any native citizen of the United States, sojourning in
Germany for pleasure, for business, for study, or for whatever pur-
pose, may be expelled when the ' circumstances indicate that the per-
sons in question use their American citizenship only for the purpose
of withdrawing themselves from the duties, and particularly from
the military duty devolving upon the domestic population, without
being disposed to abtindon their permanent sojourn in Germany and
the advantages connected therewith.'
" How can such a rule be applied to admitted aliens, aliens even by
birth ? They are not withdraw^ing themselves from any duty of mili-
tary service, because as aliens they owe no such duty. There can be
no offense to public order in the nonperformance of a service which
neither the local law nor the law of nations imposes.
" No ground is perceived by my Government which will justify a
separation of such a class of residents from those intended to. be pro-
tected by the language of the treaty above referred to. The suggested
use of American citizenship is precisely one of the uses assigned to it
by the law of nations, namely, the exemption from foreign military
service. Can this fact, then, be inquired into as a motive of residence,
and be construed into an offense for which a foreign resident may be
withdrawn from treaty protection and refused the right of sojourn ?
"The undersigned is instructed to present these views to the just
consideration of his Imperial Majesty's Government, in the hope that
they will lead to a common understanding of the rights of the citizens
of each country peacefully residing in the other."
Mr. Kasson. niin. to Germany, to the German foreign office, Feb. 25, 1885,
For. Rel. 1885, 4CX)-400.
" From the note of Mr. Kasson, dated February 25 last, the under-
signed understands that the Government of the United States has
raised a series of objections against the justice of those decisions
which have been arrived at by the Government of His Majesty the
Emix'ror, with respect to former subjects of the Empire who have
returned to Gernuiny after naturalization and a sojourn of five years
in America, as well as respecting the sons born in the United States
of such subjects.
"After having considered the contents of the note referred to with
an attention corresponding with the importance of the subject, the
undersigned, to his regret, does not find himself in a position in
§ 3^3.] TREATIES WITH GERMAN STATES. 379
which he is able to hold out a prospect of a change in the decisions in
question. The expositions contained in the note of the 25th of Febru-
ary are directed primarily against the remark contained in the note
of the foreign office of December 31 last, which reads:
" 'As regards the fathers of such sons, no doubt can exist that they
are to be regarded as having renounced their naturalization by a
longer sojourn than one or two years, pursuant to the treaties regulat-
ing nationality of 1868 concluded with the United States.'
" In order to show the untenable nature of the position indicated
by these words the envoy argues that article 4 of the treaties could,
obviously, in case of the loss of the nationality acquired by naturali-
zation, not have the effect of restoring at the same time the former
nationality of the person in question. Such a really nntenable
assumption was, however, not expressed in the words which have, been
cited of the' note of the foreign office.
" The Government of His Majesty the Emperor is of the opinion
rather that the persons to whom the conditions of article 4 of the
treaties apply are to be reckoned neither as American citizens nor as
subjects of the Empire, but as individuals without nationality.
" Former subjects of the Empire who are in this case are, however,
not dispensed from military duty in Germany. On the contrary, they
are subject to this duty under the more particular ]:)rovisions con-
tained in section 11 of the imperial military law of May 2, 1874.
(ImperialLaws, p. 45.) Further, the envoy attaches Aveight to the
optional language of the third clause of article 4 of the treaties,
where it is said that the renunciation of the naturalization may be
held to exist when the person resides more than two years in the
country.
"As far as the undersigned can perceive, the meaning of that expres-
sion is the following: In general the 'permanent transfer of sojourn to
the land of the former nationality without the intention of returning
to the country of adoption is intended to entail the consequence that
the person is to be regarded as renouncing the naturalization acquired
in the other country. In view, however, of the difficulty of proving
in every particular case that the settlement {niederlassiing) has taken
place without the intention to return, and Iwcause an inward (mental)
operation of this sort can only be deduced from outward circum-
stances which may be susceptible to varied interpretation, it has been
agreed that the fact of a sojourn prolonged beyond the period of two
years shall be sufficient to give to eacli of the treaty-coucluding parties
the formal right to treat the pers(m as having renounced the nation-
ality acquired by naturalization.
" For the rest, the foreign office, in the words cited from its note of
December 31 last, did not mean to intimate that on the (ierman side
this right w^ould be exercised in all casas without distinction. The
380 NATIONALITY. [§ 393.
Goveniiiu'nl of ihv United States may ratluT rest assured that the
German authorities, in the application of that treaty right, will, as
heretofore (already), allow all reasonable consideration to prevail.
"As re<j:ards the sons born in America of such former Cierman sub-
jects who sojourn with their fathers, the envoy represents that the
contemi)lated adoption of measures of expulsion against such persons
would not be in harmony with the provision of Article I. of the treaty
of the year 182S, concluded between Prussia and the United States.
"Provisions such as the one referred to are to be found in the
majority of the treaties of amity and commerce now in force. But in
the intercourse of the Emi)ire with other states the view has been
heretofore always and quite universally adhered to that by treaty
provisions of this character the internationally recognized right of
evx'ry state to remove foreigners from its territory when their further
sojourn in the country appears to be undesirable, upon grounds of the
welfare of the state, is not abolished.
" This applies in a peculiar measure to the sons born in America of
former (Jerman subjects when they live with their fathers perma-
nently in Germany, participate like Germans in all arrangements for
the protection and welfare of the subjects of the Empire, and only
make use of their American citizenship to avoid the fulfillment of one
of the most important duties of German subjects.
" Continued toleration of such endeavors would necessarily lead to
the formation Avithin the Empire of a numerous group of population
who illustrate by their example how it is possible, under the covering
mantle of a foreign nationality, held by name only, to evade in a
whole succession of generations the military duty imposed upon all.
" In this connection the undersigned permits himself to point to the
fact that His Majesty's Government has, only after repeated consid-
eration, and after overcoming many scruples which suggested them-
selves, decided still to recognize the American nationality of the sons
in question of former subjects of the Empire, even, also, wdien their
fathers have lost the citizenship acquired in the United States. For
the recognition of such a relation is in conflict with the legal view
underlying the legislation of the Empire, pursuant to which minor
children, standing under pateriuil control, share the nationality of the
father. In order, however, to pave the way for an amicable solution
of the existing difliculties, the (iovernment of Ilis Majesty has sup-
pressed the scruples, and has not hesitated to give expression to that
recognition.
" It will, therefore, be found the less surprising if this Government,
on the other hand, can not renounce the right nor withdraw from the
duty of making provision against the injury to an important and just
interest of the Em|)ire that may possibly result from such accommo-
dating action, by adopting measures of expulsion against the sons in
§ 393. J TREATIES WITH GERMAN STATES. 381
question of former subjects of the Empire, under the conditions
stated in the note of the foreign office of December 31 last.
" Wliile the undersigned submits the foregoing to the charge d'af-
faires, in order that it may, if desired, be brought to the knowledge
of the Government of the United States, he at the same time avails,"
etc.
Count Hatzfeldt, Imp. sec. for for. aCC., to Mr. Coleman, charge d'aff. ad
int. at Berlin, May IG, 1885, For. Rel. 1885, 417. Cited in For. Rel.
1897, 228.
Aug. 22, 1884, Mr. Everett, American charge, laid before Count Hatz-
feldt the case of David Lemberger, who had been ordered by the
authorities of Wurtemberg, where he was residing, to appear for
military duty. Mr. Everett stated that Lemberger was born in the
United States in 18G2, and that his father was admitted to American
citizenship in 18G0. Count Hatzfeldt replied, April 2G, 1885, that
Lemberger had been stricken from the military rolls, it having
been ascertained that he could not be considered a German subject.
June 3, 1885, however, Mr. Pendleton, then American minister at
Berlin, wrote to Count Hatzfeldt that the Wurtemberg authorities
had ordered Lemberger within a certain time to accept German alle-
giance or else to depart. Count Hatzfeldt replied, July 11, 1885, that
the measure could not be withdrawn, since Lemberger " belonged to
the class of persons who employ their foreign allegiance simply for
the purpose of evading military service in Germany," and to whom
the principles set forth in the note of May IG, supra, applied. On
receiving this correspondence, Mr. Bayard, Aug. 1, 1885, wrote to
Mr. Pendleton, saying: "It is noticed that Count Hatzfeldt bases
his decision to e.vpel Lemberger on the note from the foreign office
to the legation of the IGth instant, which discusses the status of
the sons of former subjects of the Empire who have returned to
Germany after naturalization, and therefore, to meet his arguments,
it will be necessary to show that Lemberger's father did not return
to Germany after naturalization. This fact does not appear in any
of the correspondence forwarded with j-our dispatch, but may pos-
sibly be susceptible of proof from your correspondence with Lem-
berger himself or the consul at Stuttgart" Aug. .31, ISS.'), Mr. Pendle-
ton informed Mr. Bayard that tiie fact that the father bad returned
to and resided in Wurtemberg was Ivuown to the legation when Count
Ilatzfeldfs note of July 11 was received, and had " precluded the
reply which occurred to the Secretary of State, and would have been
very iwrtinent had the fact been otherwise." .\t the same time Mr.
Pendleton connnunicated to Mr. Bayard a translation of a letter from
Lemberger, sr., as follows: " I came with my family in 1870 to Win--
temberg. and returned to America witiiout them in 1S74, where I staid
for about fifteen months, returning here again, where I have since
lived, in 187.5. My son has not yet obtained (Jerman allegiance. I
have been looking about me to see where it could be obtained most
cheaply. I was at Miinster, Oberamt, and Cannstadt. where my son
has i)een promised citizenship when tlie matter shall have been de-
cided by the Imperial office. My son is still here with his parents."
The case was not further pressed. (For. Rel. 1885, 423-425, 42G.
427, 421), 43G.)
882 NATIONALITY. [§^3.
"The uiulcr?<i^mHl ha.s had the honor to receive the note dato«l
Decenilxjr 24tli hist, foreign office, No. 14^3, relating to tiie expulsion
of Hcveral American citizens from Prussia, of the envoy extraordinary
and minister plenipotentiary of tlie United States of America, Mr.
Pendleton, and to give to the statements contained in the saiiKJ an
attentive appreciation. To his regret the undersigned is not able to
adopt in all points the views expressed by the envoy, and lias only
found it possible to recjuest the appropriate Royal Pi-ussian au-
thority to grant to Meinert Boysen (Simon. Meinert Boysen), who
seemed worthy of special consideration, permission to sojourn in
Prussia until tlie beginning of next summer.
" In the note of the undersigned of the 21st of December last, it
was already pointed out that the refusal of the peraiission in ques-
tion was based on the consideration of the particular circumstances
under which the nine persons concerned left their native land and
have now returned to it. The Prussian authorities are convinced
that all of those persons emigrated solely for the purjx)se of with-
drawing themselves from the performance of military duty. If such
persons were permitted, after they have acquired American citizen-
ship, and while appealing to this change of nationality, to sojourn
again, according to their pleasure, unhindered, for a shorter or longer
period, in their native land, furtherance would thereby be given to
similar endeavors, and respect for those laws would be endangered
upon which is based the general liability to military service, one of
the most essential and important foundations of our state life.
Solely on this account, and not as a sort of punishment for evasion
of military duty, has the expulsion of those persons been decreed,
after a i^eriod of sojourn amply sufRcient under the circujnstances
had been accorded them.
"The envoy has advanced the question whether the right of the
Prussian government to expel American citizens has not been re-
stricted by the treaty regulating nationality of the year 18G8, and
earlier by the treaty of commerce and navigation, of May 1, 1828,
bet-sveen Prussia and the United States. So far as the last-named
treaty is concerned, considering it first. Article I. of the same provides
that the citizens of either state shall be at liberty to sojourn in the
territory of the other state, in order to attend to their affairs there,
and that they shall enjoy for that purpose the same protection as
the citizens of the country wherein they reside, on condition of their
submitting to the laws and ordinances there prevailing.
'' Heretofore the foreign office has })ointed out, in the note of Count
Hatzfeldt of May 1() last, that, in conformity with the view here-
tofore generally entertained in intercourse between the Empire and
Prussia and other states, and contested from no quarter, provisions
of this character by no means conflict with the right of every inde-
§ 393.] TEEATIES WITH GERMAN STATES. 383
pendent state to expel foreigners from its territory when such course
is considered requisite upon grounds of the welfare of tlie state or
of the public order.
" Nor do the treaties regulating nationality of the year 18G8 ooai-
flict with the exercise of this right.
" Under Figure III., No. 1, of the final protocol of the Bavarian-
American treaty, which agrees in all essential points with the treaty
between the North German Confederation and the United States,
this is distinctly recognized, and thereby the North German- American
treaty, concluded at an earlier date, has, in a certain manner, received
an authentic interpretation. Germans naturalized in America, who
have resided five years in the United States, are, it is true, in accord-
ance therewith to be regarded as Americans, and are also to be treated
as such in case of their return to Germany, in so far as they have not,
in accordance with Article IV. of the treaties, renounced the naturali-
zation acquired in the United States. They may, however, neverthe-
less, when the accompanying circumstances require, be expelled like
any other foreigner. On principle this right will be considered
[exercised] only when maturely considered grounds of the public
welfare compel.
" The envoy may rest assured that the Royal Prussian government
has been actuated solely by considerations of this character in the
action it has taken with respect to the persons in question."
Count H. V. Bismarck, Imp. sec. for for. aff., to Mr. Pendleton, miu. to
Germany, Jan. 0, 188(5, For. Rel. 188G, 31G.
"The doctrine now laid down by the foreign office seems to embody
two propositions. The German Government appears to claim, first,
that any American, whether he be native or naturalized, may be
expelled from Germany Avhenever, in the opinion of the authorities,
the welfare of the state demands it ; and, second, that a good and suffi-
cient ground for such expulsion is to be found in the purpose on the
part of an emigrant to avoid military duty by emigration, the suffi-
cient proof of which purpose for the German Government is the fact
that the emigrant demanded an official permit to leave his native land.
" I will now examine these two points in turn.
" The claim made by the German Government of a general right of
expulsion raises the question of what rights of sojourn naturalized
Americans have under the treaty of 18G8. Article I. of that treaty
reads as follows:
"Citizens of the Nortli German Confederation, wiio have become naturalized
citizens of tlie United States of America, and sliall liave resided uninterruptedl.v
witliin tlie United States five years, sliall be held by the North German Confed-
eration to be American citizens, and shall be treated as such.
384 NATIONALITY. [§ 393.
" This appoars to ho the only sentence in the treaty relating to the
status of naturalized American citizens pending the two-years' stay
which is referred to in the fourth article of the treaty, and we must,
therefore, turn to our treaty with Prussia of 1828, which is still oper-
ative, for a definition of the status and treatment of American citi-
zens. Article I. of that treaty says:
" There shjill bo betwoon tho territories of the high contracting parties a
rtH'iprocal lilvorty of coiuuiorco and navigation.
"The inhal)itants of tlieir respoftive States shall nnitually have liberty to
onter the ports, places, and rivers of the territories of oaeh part.v wherever for-
eign conunerce is pcniiitted. They shall l)e at liberty to sojonrn and reside in
all parts \vhats<)ev(>r of said territories in order to attend to their affairs; and
they shall en.joy, to that effect, the same secnrity and jiroteetion as natives of the
eonntry wherein they reside, on condition of their submitting to the laws and
ordinances there prevailing.
" There \yould seem to be no question that under the concurrent
effect of these two treaties, Americans, both native and naturalized,
should have a free and equal right of peaceable sojourn in Germany
if they submit to the laws.
" I notice the statement of Count Bismarck in his note to you of
the Oth of last January, inclosed in your No. 154, of January 18, 188C,
and in reply to your note to him of December 24, 1885, that the pro-
visions of the treaty of 1828 do not conflict with the right of every
independent state to expel foreigners from its territory when such
course is considered requisite upon grounds of the welfare of the
state, or of the public order, and that the treaties of 1808 regulating
nationality do not conflict with this, and that returning emigrants,
even when recognized as naturalized Americans, may, when the
accompanying circumstances require, be expelled like any other for-
eignei', but that on principle this right wnll be invoked only when
maturely considered grounds of the public welfare compel. This
opinion, Avhicli would seem to put our relations with Germany as
regards naturalized Americans on exactly the same footing as they
were before the Bancroft treaty of 18()8, and to open the door to the
same endless and unsatisfactory discussions as then took place, does
not, tlierefoi-e, meet Avith the assent of this Government. . . .
" The only question which it seems to this (iovernment can be
raised as to the right of Americans under our two treaties to remain
in Gei-many would be of how long a period of time is covered by that
right in the case of naturalized Americans; and, to decide this, refer-
ence to the fourth clause of the ti'eaty of 18()8 is necessary.
" Now, it would seem to be impossible to apply the pHnui facie test
of an intent to renounce American citizenshij) as provided for in the
last clause of that article, namely, a residence in Germany of over tAvo
years, if the returning emigrnnt is liable to be ex|)elled, as is now pro-
posed, before the expiration of the two years, and no right is reserved
§ 393.] TREATIES WITH GERMAN STATES. 385
in the treaty to the German Goveriiiuent to decide what period less
than two years is sufficient, as Count Bismarck intimates, to attend to
their affairs. This ' intent ' to renounce American nationality may,
it is true, be expressed in some other way than a stay of over two
years, and this not infrequently is the case, as is shown by dispatches
from your legation reporting cases of deliberate and voluntary
resumption of German allegiance on the part of naturalized Ameri-
cans returning to their native land; but this Government contends
that in the absence of any such voluntary and express manifestation
of intent to renounce American citizenship, our citizens can, under
the treaty of 1808, claim recognition of their status and all rights of
sojourn pertaining thereto during the first two years following their
arrival in Germany. . . .
" That the intention of the German Government at the time of the
signing of the treaty coincided with the view^s of this Government, as
above expressed, appears clearly from the words of the decrees from
the ministries of justice and the interior issued on the Gth of July,
18G8, to all royal courts of appeal, supreme courts, state attorneys-
general; to all the governments of the monarchy; to the chief presi-
dent at Hanover, and to the presidency of police in Berlin, for their
guidance and distribution. These provide —
" That the punishment inciu'retl by punishable emigration is not to be brought
into execution on occasion of a return of the emigrant to liis original country
if the returning emigrant has obtained naturalization in the other country, in
conformity to the first article of the said treaty. Also:
" In conformity to article 2 of this treaty, the punishable action committed
by the unauthorized emigration of a citizen of the United States of America
shoiild not be made the ground of a penal prosecution upon the return of such
person to his former country after absence of not less than five years, etc.
"The Royal Government is therefore instructed in such cases to abstain from
reconnnending trial and punishment, and in general from every kind of proseeu-
tion whenever the person in question is able to produce proof that he has be-
come a naturalized citizen of the United States of America in conformity with
the first clause of Article I.
" Yet, notwithstanding these edicts, the proceedings and sentences
against returning Americans appear to emanate from the local
authorities in disregard of their instructions ' to report oflficially the
remission by way of grace of the declared j^unishments and costs,'
(he possibility of condemnation and execution of the penalties not
being apparently in any case contemplated by these decrees. These
orders are entirely pertinent to the present discussion, although they
may be admitted to have more especial reference to military fines
for nonperformance of military duty, with a term of imprisonment
in default of payment, the greater number of whicli are eventually
repaid after the cases have been brought to the notice of the foreign
H. Doc. 551— vol 3 25
386 NATIONALITY. [§393.
office by your lo*ration. . . . Certainly peremptory expulsion at
three weeks' notice may \h> fairly included under the term ' in
general from every kind of prosecution,' for expulsion is evidently
a worse punishment than the ordinary fine, after the emigrant has
incurred all the expense of a return to his native land, under the
supposed i)rotection of a treaty to remain there undisturbed for at
least two years. . . .
'' This brings me to the second point made by the German Govern-
ment for its refusal to rescind the orders of the local authorities,
namely, that the application or request of these young men of six-
teen years for permission to emigrate before attaining the aye of
military liahility appears to justify the assumption that in seeking
the discharge from Prussian allegiance, which the application ap-
l)arently involved, they were actuated solely by the purpose of with-
drawing themselves from the performance of the general military
duty in Prussia.
" The minister of the interior on the 6th July, 1868, in his circular
says:
" In concliKling the treaty of the 22d February of this year between the
North (Jernian Confederation and the United States of America it ican the prc-
vaU'nuj iiiteiition that in conformity to art. 2 of this treaty the pimishable action
connnitted l)y tlie unauthorized emigration of a citizen of the Confederation
to the United States of America should not he made the ground for a penal
prosecution upon the return of such person to his former country after absence
of not less than five years, and that the punishment for such action, even
tliongh already declared, shoidd not be consummated if the person has acquired
in America the right to citizenship in conformity to Article I. of said treaty.
'" The circular of the minister of justice is to the same eflfect, and in
almost the same words. It seems to be a self-condemned proposi-
tion, whose refutation is contained in its statement that, if the pun-
ishment for unauthorized emigration was in every case to be remitted,
i'.uthorized emigration was to be a punishable offense, and yet this is
what the German Government asserts.
" Nor is it apparently quite logical to state (see Count Bismarck's
note of I)eceml)er 21, 1885, transmitted in your No. 142) that the
(iischarge from Prussian nationality could not lawfully be refused
in time of peace to persons who have not yet reached the age of mili-
tary liability (that is, the completion of the seventeenth year), and
yet to say : ' The assumption seems therefore to be Avell founded that
the persons in (luestion (all under seventeen) sought discharge from
their native alh'giance, and emigrated to the United States only for
the purpose of witlulraAving themselves from all performance of mili-
tary duty in (iernumy, and the same purpose must be assumed in the
cases of II. P. Jessen, IT. F. N. Kohlffs, and C. H. Vj. Kohlffs ' (though
these three were over seventeen years of age, and therefore might
§ 393.] TREATIES WITH GERMAN STATES. 387
have been refused permission), 'because these three persons emigrated
to the United States after attaining the military age, without permis-
sion, and without having responded to the duty of presenting them-
selves for military service.' . . .
" This Government has always in its consideration of these cases
proceeded upon the supposition, wdiich has thus far not -been contra-
dicted by the foreign office, that the military liability, the avoidance
of wJiich was culpable and punishahle, did not begin until the age of
militar}' service, which is given in the German constitution as the
completion of the twentieth year, and when a recruit is sworn into the
service under the flag and assigned to a regiment. A disregard of
this liability is understood to be desertion, and as such never defended
by this Government.
" But whatever may be the age of military liability, the circular "
of the minister of justice, issued in pursuance of the treaty, says, ' The
punishment incurred hy puyiishable eniicjration is not to he hroitght
into execution on the return of an emigrant who has ohtained nat-
uralizatioi) in the other country^'' and this decision is given in execu-
tion of the treaty in Avhich no distincti(m is made between those who
emigrate before or after the age of military liability, excepting only
those persons referred to in article 2, understood to l)e deserters.
" It seems unreasonable on the part of the German Government to
grant a request to emigrate which carries with it necessarily a release
from military duty whether the applicant asks for such release or not,
and then years after this permission has been availed of to violate
and invalidate its own permit, and impute motives to the emigrant
which could have had no effect when applying for the permit, inas-
much as the authorities are obliged by law to grant it. T5ut there
surely ought to be a just and reasonable distinction drawn between the
acts and intent of a mere lad of sixteen emigrating, and usually in
obedience to his j)arents, and those of a young man of twenty who
may have received his sununons to appear, and hastens to escape
from the country in order to evade its laws. Out of the thirteen
persons expelled from Schleswig-llolstein since the 1st December,
1885, eleven were under eighteen years of age. and nine, who were
under seventeen, had permits to emigrate.
'" The complaint by the German authorities has appeared hereto-
fore to be not so nnich of the fact of emigration, whether with or
without j;ermission, as of the return to (Jermany after naturalization
and by acts and words inciting the embryo recruits in their native;
villages to discontent aud emigration.
'' I>ut even jis regnrds this s])ecies of offense, which is more legiti-
mate in its basis than the one alleged in the Schleswiff-Holstein cases,
"Printed Foroisn Ilolations, ISCS, Tart II.. p. 5.5.
888 NATIONALITY. [S ^i^'^-
jjreat iillowaiicc slioiihl bo made for the dilfcrcnco in popular habits
ami ciistoius bctwci'ii Aincrica and (ilonnany. In tliis country the
emigrant travels freely and frequently. The sedate (lernian becomes
more active and ini<rratory. and his proverbial and innate love for his
fatherland naturally teni])ts him on ac(juirin«j: his new nationality to
i-eturn as often as j)ossible to the home of his Childhood from which
Jie has been Ion*; absent. It was in contemplation of and to meet this
feeling and this necessity, which it Avould be unwise and contrary to
the instincts of humanity to ignore, that the treaty was made. The
returning emigrants do not enter (iermany as Germans seeking to
evade military service, but as American citizens carrying the proofs
of their naturalization as required by the treaty, and generally with a
passport rec!ognizing them as American citizens, and claiming for
them protection as such. How much more favorably then should
their cases be considered, when they hold a discharge by German
authority from their original military obligations and a permit to
emigrate to foreign lands.
" This Government considers that it has a right to ask that these
passports and naturalization certificates shall be respected by the
German authorities, and that the right to unmolested sojourn of re-
turning naturalized German-Americans whose papers are evidence
that they have complied with the United States laws and the pro-
visions of the treaty of 18(58 in regard to change of nationality, shall
be acknow ledged and respected, and that if a continuous residence in
Germany of two years may be held to imply a renunciation of
American allegiance no such implication shall arise in any shorter
period, excepting in cases where the intent to reassume German
nationality shall have been expressed explicitly by the returning
emigrant. Consequently, during the said stipulated period of two
years the naturalized American is entitled to protection from moles-
tation or expulsion as long as he submits himself to the laws of Ger-
many. The recent course of CJermany in expelling a number of
naturalized American citizens, whose quiet and inoffensive character
was officially testified to, is considered contrary to treaty provisions,
and as affecting the rights of a large class of our citizens who are not
included in the s]X'cial exceptions stipulated for in article 3 of the
treaty of 1808 regarding criminals and fugitives from justice.
" You are therefore instructed to present these views to the German
Government, reciuesting at the same time that it will reconsider its
decisiqn in the recent cases of expulsion (and which I nnist believe to
have been inadvertently made) in the light of the above recitals.
The general doctrine of the right of a nation to expel obnoxious
foreigners, whose presence is dangerous to its peace and welfare,
from its shores, is well known to this Government, and by none more
readily acknowledged, but this right was not lost sight of in framing
§ 393.] TKEATIES WITH GERMAN STATES. 389
the treaty of 1808, and while the right is admitted, yet its partieuhir
application as regards naturalized Americans is considered in and
limited by that treaty.
" You may read this instruction to the minister of foreign affairs
and furnish him with a copy of the same for his information.""
Mr. Bayard, Sec. of State, to Mr. Pendleton, niin. to Germany, March lU,
1880, For. Rel. 1887, 8<;9.
See, as to the case of Hans Peter Jessen, above mentioned, Mr. Bayard,
Sec. of State, to Mr. Pendleton, min. to Germany, No. 91, Jan. 29,
1880, MS. Inst. Germany, XVII. 589.
The foregoing instruction of Marcli 12, 188G, related to numerous cases of
expulsion in 1885-7, from the island of Ffihr, Schleswig-IIolstein,
of young men, naturalized citizens of the United States, of (Jerman
origin, shortly after their return to their native place. See For.
Uel. 1880, 310, 311-315, 323.
For a reference to the decision of the German Government that persons
born in the United States of German i)arents could not l)e made to
perform military duty, but were liable to expulsion as seeking to
avoid such duty, see Mr. Bayard, Sec. of State, to Mr. Scherpel,
June 23, 1880, 100 MS. Dom. Let. 559.
"A series of well-considered cases, extending from the time of the
mission of my honored predecessor, Mr. George Bancroft, the nego-
tiator of the above-named treaty, to wit, from 1875 down to and
including the period when my inmiediate predecessor, Mr. John A.
Kasson, had charge of this legation in 1885, has interpreted the
third clause of the fourth article of the treaty to mean that a natural-
ized citizen of the. United States, having resided there five years,
returning to Germany shall have a right of uninterrupted sojourn
in the last-named countr}^ for the period of two years, provided he
obeys the laws thereof. The gentlemen in charge of the imperial
foreign office yielded an assent to this interpretation as often as it
was as.serted by the envoys of the United States. The undersigned
would willingly point out the several cases to which he refers, but
he is satisfied that these records of the diplomatic correspondence are
very familiar to Count Bismarck. He permits himself, however,
to mention the cases of Solomon Moritz Stern in 187(), of Ellis Block
in 1878, of Edmond Klein in 1879, of Arft A. Rorden in 1880, of
Lazard Kosenwald in 1880, of Jurgen T. (Jrau in 1882-83, and llie
correspondence connected therewith, among many others of a simi-
lar tenor. The argument on which this conclusion was reached need
not now be discussed. It was entirely conclusive to the officials of
the two Governments, and the result they rea(;hed seems to be no
longer an open question.
"As a reason for not applying (his well-settled interj)retation of
the treaty to the case of Knudsen, Count Bismarck says in the above-
mentioned esteemed note that, on the general grounds developed by
390 NATIONALITY. [§ 3^3.
him in foniuM- ('(Hnniiinirjitioiis, (ho luoasuiv of expulsion must now
1h' exiriitcd after a sojourn of more than three months in the house
of liis |)arents has been i)ermitte(l to KnudstMi. The undersi^ied
understands these former eommunieations to be the notes of Count
Hismarelv of December 21, 1885, and of January fi, ISSfi. The note
of I)ecemlx»r 21, 1885, says (the undersigned quotes only that he may
not possibly unintentionally misrepresent:)
"'The assum|)tion swuis therefore well founded that the persons
in question sought discharge from their native allegiance and emi-
grated to the United States only for the ])urpose of withdrawing
themselves from the i)erformance of military duty in Germany.
This same purj)ose nnist be assumed in the cases of: (7) Hans Peter
.lessen (note of the 0th ultimo, foreign office, No. 110) ; (8) Hein-
rich Friedrich Nikolaus Kohltfs (note of the 13th ultimo, foreign
office. No. 124), and (D) Constantino Heinrich Edward Rohltfs,
(note of the i:^th ultimo, foreign office, 123).
" ' These three persons emigrated to the United States, after attain-
ing the military age, without permission, and without having re-
spimded to the duty of i)resenting themselves for military service.
. . . Should a further sojourn, and one for an indefinite period,
such as they desire, be jjermitted them, a furtherance would thereby
Ix^ afforded to the i)urpose of those persons, manifestly aiming at
evasion of the performance of military duty, which does not appear
to l)e in accord with the interests of the state and the public order.'
"And the note of January G, 188f), after quoting the substance of
the former note, adds :
" ' If such persons were permitted, after they have acquired Ameri-
can citizenship, and while ai)pealing to this change of nationality,
to sojourn again according to their ])leasure, uidiindered, for a
shorter or longer period, in their native land, furtherance would
thereby be given to similar endeavors, and respect for those laws would
be endangered upon which is based the general liability to military
service, one of the most essential and important foundations of our
state life.'
" It is not asserted that Knudsen has violated any law or commit-
ted any bivadi of the peace or order of the community, or that he
lias by word or deed, by persuasion or example, sought to mislead
or to exciter discontent among the people with whom he associated.
This would seem, therefore, to be a case in which wouhl apply
with special force the instruction given by the royal Prussian min-
ister of the interior to the authorities of the Royal Government, 'to
abstain from recommending ti-ial and punishment, and in general
irom ercvji Jkhul of proKcciit'Kni."
"The intention with which he emigrated, the mental process by
which he was brought to a decision, in no wise impaired the lawful-
§ 393,] TREATIES WITH GERMAN STATES. 891
ness of the emigration. So, also, the return to his native country of
the emigrant as a naturalized citizen of the other country, after a
five years' sojourn therein, is expressly permitted and provided for by
the treaty. The emigration is permitted, the return is permitted,
the sojourn is permitted. How, then, can the recognition of these
three permitted events be a furtherance of a reprehensible desire to
evade military service? The very act of emigrating involves the
avoidance of military duty. There can be no emigration before the
extreme limit of age at which the subject may be called on, which
does not involve such avoidance. . . .
" The performance by the emigrant of acts which are separately
permitted and sanctioned by the German Government, to wit, emi-
gration, return, and sojourn, can not, when they are combined, give
him a quality which, in the absence of any offensive conduct, is dan-
gerous to the state, and thus justify an exception to the rule of two
years' residence. No German-born naturalized citizen of the United
States can sojourn for any Iqngth of time in Germany if the facts of
emigration and return are to be considered as proof that the emigra-
tion was merely from a desire to avoid the performance of military
duty, and such desire renders the person dangerous to the state, and
therefore justifies expulsion. If all a man's acts are lawful, his
motives, his desires can not be the subject of animadversion; they
become important only when the acts themselves are unlawful. . . .
" The undersigned is quite aware that Count Bismarck, in his note
of JaiHuiry G, 1880, says that these expulsions are not by way of pun-
ishment, but lest a ' furtherance would thereby be given to similar
endeavors, and respect for those laws would be endangered upon
which is based the general liability to military service, one of the
most essential and important foundations of our state life.' . . .
" It is very true that Count Bismarck says repeatedly, and with
great consideration, that this right of expulsion will be exercised
with moderation, and only on occasions of imperative necessity. For
this assurance the undersigned is duly appreciative, but he can not
avoid saying that this is a question of right under treaty stipulations,
and not of grace and favor, however kindly and constantly exer-
cised."
Mr. Pendleton, niiii. to Germany, to Count Hismnrck, April 10, 1880, For.
Rel. 1887. :M(\.
With tills note. Mr. Pendleton enclosed to Count Hisniarck a copy of Mr.
Bayard's instruction of March 12. 188(>.
"The envoy of the United States of America at Berlin has ad-
dressed the foreign office in behalf of several former Prussian subjects,
who, when they had attained the age when they were required to per-
form military duty, or shortly before attaining that age, emigrated to
392 NATIONALITY. [§ 393.
tlu> Unitod States, and after having bocome naturalized there, re-
turned to their native eountry, and were expeih'd from Prussia hy the
eonipetent authorities before the expiration of two years from the date
of their return. It has, ift the majority of cases, been impossibk^ to
^rant Mr. Pendkiton's ai)plications for tlie revocation of these orders
of expulsion. The aforesaid envoy addressed two notes, dated, respec-
tively, Aj)ril 10 and !(>, 1880, to the foreign office, in which he re-
quested that the last two cases that have arisen (those of Knudsen and
Burmeister) might be reconsidered. He stated, moreover, that he
had been instructed to protest against the action of the Prussian
authorities in these cases, inasmuch as his Government regarded it as a
violation of the rights guaranteed by treaty to American citizens in
Germany.
" The contents of those two notes and of the instructions of the State
Department, a copy of which was sent by Mr. Pendleton as an inclo-
sure to his note of April 10, 188G, have been carefully examined, and
the undersigned. Imperial German envoy extraordinary and minister
plenipotentiary, has been instructed to communicate, in reply to these
communications, the following observations to the Hon. Thomas F.
Bayard, Secretary of State of the United States.
" The Government of His Majesty the Emperor observes that the
United States Government does not dispute the right, which is recog-
nized in international law, of every state to expel from its territory
foreigners whose stay in the country is, in the opinion of the Govern-
ment, prejudicial to public welfare and order.
" The Imperial Government is unable to reach the conviction that
the treaty of friendship and navigation concluded in 1828 between
Prussia and the United States, or the treaties relative -to naturali-
zation concluded in 1808, involve any restriction of this right as
regards the parties to said treaties.
" As to the first-named treaty, the Imperial Government thinks it
can but refer to its previous declarations. With regard to the natu-
ralization treaty concluded between the North German Union and the
United States in the year 1808, the only stipulation contained in it
that is now^ to be considered is that embraced in article 4, paragraph 3.
According to this a renunciation of the intent to return to the United
States (and likewise a renunciation of naturalization as an American
citizen) may be considered to exist when the naturalized person
remains more than two years in the territory of the other party. So
long as there has been no such renunciation, German-Americans who
have returned to the country of their former nationality under the
presumptions of the treaty are to be considered, according to article 1,
as citizens of the United States, and to be treated as such. This,
however, is equivalent, for the period of two years only, to a renunci-
ation of the right to treat them as native citizens, and to compel
§ 393.] TEEATIES WITH GERMAN STATES. 393
them as native citizens to perform their civil duties, especially the
general duty of service. They are consequently liable to expulsion, as
are all other foreigners sojourning in Germany.
" It is, in the opinion of the Imperial Government, too broad an
assumption, if the United States Government desires to infer from
the said stipulation that Germany has renounced in general its right
t(^ expel foreigners who, like these Americans, have been in Germany
less than two years. Even if it be supposed that everything is legal,
the mere stay of a foreigner in the territory may, under certain cir-
cumstances, become detrimental to the public interest. In such cases
the Imperial Government must reserve to the authorities of the States
of the federation the right to expel at any time even an American
who is protected by the treaty, and that, too, before the expiration of
the aforesaid term of two years.
" Mr. Pendleton's statement, in his note of April 10, 1886, that both
parties have hitherto been agreed concerning an interpretation of the
treaty that recognizes the right of undisturbed sojourn for two years,
is based upon a misapprehension. The Imperial Government has, on
the contrary, always maintained the opposite view, as above stated,
and has expressly maintained this position on several occasions; for
instance, in the note of July 18, 1878, of the foreign oiRce to the
American legation at Berlin relative to the case of Biiumer.
" Mr. Pendleton's reference in support of that statement to the
executive orders issued in July, 18G8, by the Prussian minister of the
interior and the minister of justice also appears to lack sufficient
ground. According to those orders it is true there is to be no prose-
cution of persons showing that they have become naturalized in
America, on account of the 'punishable act committed by them in
emigrating. The reference to article 2 of the treaty shows, however,
and the context leaves no doubt on this point, that a judicial prose-
cution only is not admissible. Expulsion, however, resorted to in pur-
suance of a decision of the police authorities of the state, does not
come within the purview of such prosecution, for expulsion is not a
punishment in a judicial sense, but an administrative measure adopted
by the state out of regard to its own safety and domestic policy.
"It is true that the Imperial (Jovernment foruierly contented itself
with merely reserving in principle to the (xerman authorities the
right to expel naturalized Americans before the expirati(m of the
period of two years, while this right was not actually exercised.
This was done as long as circumstances permitted, in order to avoid
difl'ereuces of opinion with a friendly governuient. As, however, a
disposition has become uiore and more manifest, especially among the
])opulation of certain portions of the country, to evade the perform-
ance of military duty by emigrating to the United States, and by
appealing to the treaties of the year 18(')8, and to enjoy, in spite
394 NATIONALTTY. [§ 3^'^.
thereof, by returninp^ home, the rights and privlleg^es of native citi-
zens, a stricter course has recently been deemed necessary, and this
has led to tlie expulsions in question.
" The perfect ri^ht of the Imj)erial Government to adopt these
measures can, after the foregoing statements, hardly appear doubtful.
'' Tiie i)ositive necessity and appropriateness of such a course can,
on the other hand, naturally be appreciated only from the stand-
point of the internal policy of the Empire. In this connection, it is
only j)ossible once more to refer to the fact that the Imperial Gov-
ernment deems it irreconcilable with the defense of the interests
intrusted to its care for persons who have evaded the performance of
military duty by emigration to exercise, on returning after a short
absence, all the rights of native citizens, after having eluded the
fulfillment of the duties incumbent upon such citizens.
"Although this course is not in actual violation of any law of the
state, still the Imperial Government has good reasons to desire that
the example set by these persons of a systematic evasion of the per-
formance of military duty should not be followed. It has, conse-
quently, not felt called upon to disapprove the measures of the Prus-
sian authorities now under discussion, or to take any steps designed
to bring about a revocation of the orders issued for the expulsion of
Knudsen and Burmeister.
" The political interest of the Empire in repressing abuses of the
treaty, resorted to with the view of evading military duty, is so vital
that, after past experience, the denunciation of the treaties of 1868
would become necessary to German interests, if the interpretation of
the treaties, as set forth in Mr. Pendleton's note, should be accepted
as final. The Imperial Government has, thus far, not abandoned the
hope of being able, by a judicious exercise of the right of expulsion,
to avert the evil consequences which, from the German standpoint,
are naturally connected w^ith the continued existence of the treaties.
" The Department of State takes the view that, if the principles
recently asserted are to be enforced, any German who has emigrated
to the United States will, in case of his speedy return, have cause to
fear immediate exi)ulsion, and thinks that this state of aflFairs would
be ecjuivalent to a de facto restoration of the condition of things
which existed before the treaties were concluded. Neither of these
assumptions, however, seems Avell founded. In the case of persons
who have emigrated to the TTnited States in good faith, that is to say,
who can show that they have done so from motives not connected
with the general military service, there Avill be no occasion for expul-
sion. Yet even persons liable to military duty, who have emigrated
notoriously for the purpose of evading the performance of military
duty, are better off now than they were before the conclusion of the
§ 303.] TREATIES WITH GERMAN STATES. 395
treaties, or than they would be after their (leiiunciation, since now,
provided tluit they do not expressly or tacitly renounce their Ameri-
can naturalization, they suffer expulsion only and can not be punished
or compelled to serve in the standing army or the navy."
Mr. von Alvensleben, Gernian iiiin., to Mr. Bayard, Sec. of State, July 8,
188G, For. Kel. 1887, 410.
For cominents of Mr. Pendleton, minister to Germany, see For. Rel. 1887,
379-382.
April 7, 1887, For. Rel. 1887, 38(>, Mr. Pendleton inclosed to Mr. Bayard
a translation of an article from the Berliner Tageblatt, of April 7,
1887, reading as follows :
" In the meantime a decision of the superior court of administration has
been connnunicated to the Prussian administrative authorities which
settles the following :
"(1) The provisions of the treaty concluded with the United States of
America in relation to citizenship have midergone no change by
reason of section 21 of the Imperial law of .Tune 1, 1870, concerning
the acquisition and loss of German citizenshi]) in the Emiiire and
State, but have ratlier received a clear interpretation, that the
acquisition of citizenship In the United States, in conjunction with
five years' uninterrupted residence there, worlds a loss of citizenship
in Germany, and that hence such persons are subject to expulsion
from the country until their reacquisition of German citizenship,
and that this exjadsion can not l)e called in question by remon-
strance to the administrative aiithorities.
"(2) The right of reac<piiring citizensliip in Germany, according to sec-
tion 21, subdivision ,"), of the Imperial law of June 1, 1870, does not
extend to persons for whom the accpiisition of a foreign citizenship
has worked the loss of German citizenship in the Empire and State."
Sxibdivision .T of section 21 of the Imperial law of June 1, 1870, is as
follows:
German subjects " who have lost their citizenship l)y ten years' residence
in a foreign country and sul)sc(inently return to tlio territory of the
North German Gonfederation, acipiire citizensliip in that State of the
confederation in which they take up their residence l)y a decree of
admission of the superior administrative autlioritios which nuist
be issued to them at their application." (Id. 387.)
With reference to the article from the Berliner Tageblatt, Mr. Pendleton
said :
" There seems to ho nothing particularly new in this resumC' of the de-
cision, excei)t ]K)ssil>ly in the notice that remonstrance against jn'O-
ceedings of exitidsion will not be heard i>y the administrative authori-
ties, and that the provisions of the tifth i)aragraph of Article 21, of the
law of June 1, 1870, does not apply to jiersons who have lost their
German citizenship by reason of naturalization in a foreign country."
" The undersigned, Secretary of State of the United States, had the
honor to receive some time ago the note of Air. von Alvensleben, en-
voy extraordinary and minister plenipotentiary of His Majesty the
Emperor of Germany, of the 8th July last, relative to the cases of
several naturalized citizens of the United States of German origin
396 NATIONALITY. [§ 393.
who wore oxpcllod from Prussia not ]ou<x after thoir return on a visit
to that country. Tlie note in (juestion, liowever, wliile referrin<; to
certain cases si)ecifically, contains a general discussion of the rights of
sojourn of naturalized citizens of the United States of Oennan origin
in their native country, in the form of a reply to the views expressed
in two notes of Mr, Pendleton, envoy extraordinary and minister
plenipotentiary of the United States, to the Imi)erial foreign office,
bearing date, respectively, the 10th and lOth of April last.
" The views of this Department have already been so fully stated in
previous communications to the Imperial Government, and especially
in the note of Mr. Pendleton and its inclosures of the 10th of April
last, that their further statement or amplification would seem un-
necessary, if it were not for the apparent misapprehension, betrayed
in the note of Mr. von Alvensleben, of the Imperial Government as to
the views of this Department on the subject of the right of expulsion.
The esteemed note of Mr. von Alvensleben correctly observes that the
United States Government does not dispute the right, which is recog-
nized in international law, of every state to expel from its territory
foreigners whose stay in the country is prejudicial to public welfare
and order; but at the same time it apparently assumes that the
exercise of that right is denied by this Government to (lermany in
respect to naturalized citizens of the United States of German origin
during a period of two years immediately ensuing their return to
their native country.
" But for this apparent misapprehension of the views of this De-
partment the undersigned would have read with not a little surprise
the declaration contained in Mr. von Alvensleben's note, that the
denunciation of the treaty of 18G8 would become necessary if the
interpretation set forth in Mr, Pendleton's notes should be accepted
as final.
" It has not been the purpose of this Department to deny to Ger-
many the right at any time to expel foreigners whose presence maybe
found to be dangerous to the public safety, but while thus freely admit-
ting the right of expulsion this Department holds that its arbitrary
exercise can not be regarded as consistent with existing relations.
" It is not understood ever to have been claimed by this Govern-
ment, and it is not claimed by it now, that the clause in the treaty of
1868 in respect to a two years' residence of naturalized citizens in the
country of origin was under all circumstances to be held to be a
guaranty of such residence, and that the intention not to return to the
country of adoi)tion could not be formed or held to exist at any time
Ijefore the expiration of that period. It is clearly stated in the fourth
article of that treaty that tlie thing which is to ojwrate as a renuncia-
tion of adoptive allegiance is a renewal of residence in the country of
origin without an intent to return to the country of adoption. Such
g 393.] TREATIES WITH GERMAN STATES. 397
intention not to return, it is provided, may be inferred from a tAvo
years' residence. But this is merely a rule of evidence, establishing
a prima facie presumption, and the intention not to return may be
held to exist independently of the consideration whether that pre-
sumption has been created in the manner defined by the clause of the
treaty in question.
"Any other interpretation of the treaty would lead to the mani-
festly untenable conclusion, for which the undersigned is unable to
find any warrant, that the country of origin can not accept, at any
time during the two years immediately succeeding his return thereto,
the express declarations and unequivocal acts of a citizen or subject
who has been naturalized abroad, as any evidence of his intention
with respect to the duration of his stay.
" The position, however, of this Department is that there must be
such declarations or such acts, in addition to the mere fact of return
to the country of origin, in order to create or justify the conclusion
that naturalization has been renounced ; and that this question, which
arises under a mutual convention and is of equal concern to both
parties, is one for mutual consideration and discussion and concurrent
decision.
" In respect to the question of expulsion, it is maintained that,
although it is not a question arising under the treaty, it is due to
comity, as well as to the existence of the treaty, that reasonable
grounds for expulsion should exist and be made known. The under-
signed is unable to perceive the force of the observations contained in
Mr. von Alvensleben's note, that the necessity and appropriateness of
the course of the Imperial Government can be appreciated only from
the standpoint of the internal policy of the Empire, if, as seems to
be the case, it is intended to infer that the course of the Imperial
Government in regard to expelling foreigners can not be made a
ground for inquiry or complaint by the Government of such
foreigners.
"The undersigned is unable to assent to this proposition; espe-
cially in view of the fact that, as the note of Mr. Von Alvensleben is
understood, it admits that the Imperial Government regards as a
sufficient cause for exioulsion the fact that exemption from military
service has been acquired by emigration and naturalization in the
United States. The basis of the treaty of 1868 is understood to have
been the nuitual acknowledgment by the contracting parties of the
right of self-expatriation, upon compliance with the conditions
therein agreed upon and defined. Expatriation thus accomplished
was to be mutually and equally acknowledged by both contracting
parties, who covenanted to treat the naturalized citizens of each
other on the same footing as native-born citizens. There was no lim-
itation as to the age at which peinions might emigrate from either
398 NATIONAMTY. [§303.
country and he naturalized in the other. It is, however, clear that to
aj)ply the fact that exemption from military service has resulted
from enii<rr!i(i()n and naturalization abroad as a sufficient ground for
exjiulsion, would be to destroy as to persons of a certain age the right
of orderly return to and hiw-abiding sojourn in the country of origin,
which is stijiulated in the treaty of 1808 and may, within its plain
meaning, be continued for more than two years; and in addition to
creating a discrimination not contemplated by the treaty, would sub-
ject its constructi(m wholly to the changing views and regulations of
one of the contracting jiarties.
"■ There is no disposition on the part of this Government to ques-
tion the right of the Imperial Government to expel any foreigner
who violates the laws or the polic}' of the Empire, or whose miscon-
duct may cause his presence to be productive of disorder.
" In this respect all citizens of the United States, whether native
or naturalized, are held to the same accountability and stand on the
same footing. But to concede that the fact of being a naturalized
citizen of the United States, with the rights and exemptions incident
to such citizenship, may, irrespective of offense by word or deed or
general course of misconduct, be held of itself as to a certain class
of citizens of the TTnited States a sole and sufficient ground for expul-
sion, would l)e cMjuivalent to a deprivation of all right of sojourn and
I^eaceable residence in the German Empire except under the most
precarious and arbitrary limitations."
Mr. Bayard, Sec. of State, to ^Nlr. von Alvensleben, German niin., March 4,
18.S7, For. Rel. 1887, 419.
" This subject [of expulsion] is not regulated by the treaty in
question | with the North German Union, Feb. 22, 1868] and is not
necessarily covered by any of its provisions. I say not necessarily,
iK'cause the recognition of the right of return to and residence in the
country of origin, Avhich the treaty contains, implies that a person so
returning and residing will not be ex])elled unless some reason for
such a iMcHsure exists beyond the mere fact that he has expatriated
himself. But this does not take away either from the United States
or from (lermany in respect of any class of persons, the general right
which govennnents })ossess and which this Government freely exer-
cises of cxjK'lling aliens Avhose presence is regarded as detrimental
to the public interests. The existence of such a right is not ques-
tioned, and its exercis(» is not in itself a ground of complaint.
" It is the method or manner of its exercise that may afford a
ground for remonstrance. This is a question to be determined upon
the facts of each case. It is undoubtedly the duty of all governments
in asserting the i-ighls that behmg to them to do so with a just regard
for the rights and interests of the persons who are affected, and to
§ 393.J TREATIES WITH GERMAN STATES. 399
this end to avoid harsh and arbitraiy proceedings. But this is a
question quite apart from that of the existence of the right."
Mr. Blaine, Sec. of State, to Mr. Schroeder, Jan. 11, 1890, 176 MS. Dom.
Let 9G.
February C, 1897, the royal Prussian ministers of justice, the
interior, and war, issued circuhir regulations touching
Correspondence of ^j^^ formal treatment of petitions for pardon sent in
by persons sentenced for evasion of military service.
They made no change in the principles previously observed " in re-
gard to the action of the police toward the persons in question, in
particular to the treatment of former- German subjects who have
returned to Germany after naturalization in the United States of
America."
March 29, 1897, the embassy of the United States at Berlin re-
quested the Imperial secretary of state for foreign affairs to use his
good offices to the end that the Eoyal Prussian Government might
i)ring to the attention of the minor executive officials the circulars
of the royal Prussian ministers of justice and the interior of July 5
nnd July (>, 18G8, as well as the decision of the Imperial supreme
court at Leipzig of January 20, 1890 (Entsch. d. E. G. in Strafs., Bd.
28, S. 127), " in order that naturalized American citizens of German
origin may not be subjected to unnecessary annoyance and molesta-
tion by local authorities, on account of their having emigrated with-
out permission or before performing military service in Germany,
while sojourning in Germany upon their legitimate business, or while
temporarily visiting their parents or relatives at their former homes."
The German Government replied that as the circulars in question
had twice previously been brought to the attention of the proper
authorities, and as the decision of the Imperial court (Penal Cases,
vol. 28, p. 127) coincided with the principles laid down in the decrees,
and as no violation of those princii)les was alleged to have occurred
in any recent case, there did not seem to l)e sufficient i-eason for bring-
ing them again to the attention of the authorities. " If naturalized
German-Americans," said the German Government, '' were at differ-
ent times sentenced for the violation of military duty, and these cases
were made the subject of discussion, this was caused by the fact that
Ihe authorities did not know that those persons were naturalized in
America, and the sentence was at all times revoked wherever this
fact was established.
" The undersigned permits himself to add that these decrees do not
affect the rights of the local authorities to expel, for state police con-
siderations, former German subjects who emigrated to America at or
shortly before reaching the military age, and who, after naturaliza-
400 NATIONALITY. [^'^^S-
tioii (lu'iv, n-tunuMl lo thoir native land, vvhoiu'vor (hoy make thcni-
selvos ohnoxious or their presence seems undesirable for other rea-
sons."
liaron .Mnrsclinll, Imp. iiiiii. for. aff., to ^Vlr. IHil, Am. nmh.. Mnrcli 27,
/ 1S!)7; Mr. I'lil to IJaroii Marscliall. Manli 21). 1S!)7; Haroii .MarscUall
to Mr. I'lil. April 1, 1S!)7 : For. Kcl. 181)7, 2(»1>. 210.
" Three different kinds of expulsion may be recognized in the
precedents afforded by the recent history of (lermany.
"■ First. Each of (he (lerninn States still relains the sovereign right
of expulsion, so that a foreigner may, in certain cases, be expelled
from one Stale, but continue lo reside thereafter unmolested in
another State of the Empire, his expulsion from the former only
having effect in the territory within which the authorities of that
State have jurisdiction.
'' Second. In certain other cases where the reasons for expulsion
are such as would make the stay of the foreigner in any one of the
States of the Empire objectionable. Imperial laws have been passed
whereby an expulsion by the authorities of one State becomes effective
not only in that State but within the wdiole Empire, thus effectually
banishing the individual from Germany.
" Third. There is another kind of expulsion Avhich, though in form
identical with that last preceding, is so different in its real nature as
to warrant its (reatment as a separate class, namely, the expulsion by
the Prussian authorities of persons, either individually or en masse,
for certain grave reasons of state, as examples of which may be men-
tioned the ex[)ulsi()n of Poles from certain Gernum States, of French-
men and others from Alsace-Lorraine, and of inhabitants of Schles-
wig-IIolstein. These expulsions have usually been carried out by
Prussia or through Prussian initiative, and take the second form
above given, but for reasons which ccmcern not only Prussia but the
whole of (iernuiny. AAHien it is remembered that Prussia is the lead-
ing memlH'r of (he (ierman Confederation, that the King of Prussia
is the (ierman Emperor, that the chief functionaries of thq Kingdom
are also'leading officials of the Empire, and that an expulsion by these
Prussian authorities is given effect as an expulsion from the Empire
by vir(ue of Imperial laws passed for reasons of the Imperial welfare,
it will be seen (hat (hey are in substance indirect exi)ulsi(ms by the
Empire, (hough in form mere State expulsions effective throughout
the other Sta(es.
" Keferring (o (he first class above given, namely, expulsion by a
State from its own proper (erri(ory only, I take Prussia as an exam-
ple, and on referring (o a leading au(hori(y on Prussian State law I
find the statement : ' Measures of expulsion can be exercised against
foreigners, partly for certain pmushablc acts which have been made
§ 393.] TREATIES WITH GERMAN STATES. 401
the subject of judicial sentence, and partly as purely police measures
taken in the interest of safety and order.' (Koinie, ' Das Staats-
Recht der Preussischen Monarchic,' 2 Band, 2 Abtheilung, sec. 381,
p. 134.)
" This is also doubtless a true statement of this principle as con-
tained in the State law of each of the other States of the German
Empire.
" The distinction to be held in mind is whether the expulsion is to
be effective as a banishment —
" a. From the whole German Empire, or only
" l>. From the territory of the expelling State.
" The power by Avhich the authorities of any particular State are
given extended jurisdiction to expel from the Empire is contained in
various Imperial laws and decrees. As examples of these may be
mentioned —
" 1. Certain sections of the Reichs-Strafgesetzbuch.
" 2. The Imperial law regarding the expulsion of the Jesuits.
" 3. The Imperial law regarding the Social Democrats, etc.
" To sum it up, it may be said that, first, as regards the power of
ex])iilsion the respective States exercise this right by virtue of their
inherent sovereign power and the usages sanctioned by international
law; second, that the procedure whereby it is given effect is for the
most part contained in 'Administrative Bestinunungen ' and ' Min-
isterielle Erlasse,' Avhich, not being in the form of public statutes and
often embodied in secret orders of the State and Imperial authorities,
are not available for examination.
" Concerning the right of expulsion as Avell as the manner, the
procedure above indicated has been modified in certain cases by
special treaties, as, for instance, the convention between the German
Empire and Russia of February 10, 1894, for the exchange of
undesirable persons, subjects of either of the two countries, to the
other, respectively; also a convention with SAvitzerland bearing date
April 27, 187G." ^
Mr. White, .iiubass. to CJoniiuiiy, to Mr. Hay, Sec. of Statf, April 21, 1900,
For. Hel. UMM), 2;"), 27-28.
" It seems well to add something regaixling . . . a large class
of cases ... in which foreign governments . . . may sus-
pect a pro-stitntioii of American eitizenHldp. . . . American repre-
sentatives abroad have constantly to be on their guard against this
evil, so injurious not only to proper relations between our own (iov-
ernment and others, but to the good name of our country. . . . My
symi)athies have always been and are now strongly with all bona fide
claims made by American citizens of foreign birth for protection in
II. Doc. 551— vol 3 26
402 NATIONALITY. [§ 393.
the coiintrv of tluMi- <)ri<jin. ... I recall no case in which the
embassy lias Ik'cii unable to secure the friendly attention of the (ier-
man Government to cases evidently bona fide. . . . The cases of
yoiin«r men of military a«T:e who, having secured naturalization, return
inuned lately afterwards to visit their family and others present
peculiar difficulties, and these difficulties are frequently increased
bv their indiscretion and even b\' conduct to which a nnich worse
name might be applied. It is, of course, galling to the military'
authorities of a nation, in which the military service of all its sons
is considered the fundamental condition of national existence, to
have young men who have disappeared just at the military age
reappear among their old comrades, who are going through their
military service, and display proofs of American citizenship which
appear to the authorities to be in the nature of a fraud. Still, even
in these cases, difficult as they are, whenever there is evident bona
fides, and also a reasonably discreet conduct on the part of the person
returning, he has, as a rule, been allowed to remain long enough to
visit his relatives. . . . I would much prefer to have them allowed
to renuiin for the time named in the Bancroft treaties, but I state the
case as it undoubtedly appears to the German authorities, and T feel
bound to say that but for this exercise of what they consider not
only a right inherent in German territorial sovereignty, but as an
absolutely necessary safeguard to good order and even to the national
existence, I do not believe the Bancroft treaties would be allowed to
stand. ... In view of all these considerations, while aiding the
applications of all our American citizens of German birth who show
good faith, I have done what I could to resist all eft'orts to prostitute
American citizenship. . . . Hardly a day passes that there do not
come to this embassy persons who have made the briefest possible stay
in the United States and demand passports clearly for the purpose of
passing their lives here free from all obligations either to the country
of their birth or of their adoption. Many of these have not the
slightest appreciation of their real rights or duties as Americans,
liave no feelings in connnon with those of American citizens, and
some are not even able to Avrite or speak the English language. . . .
The more respectable of these seek merely to promote their own inter-
est or ])leasnre. not hesitating apparently to take any oath which
may l)e necessary to secure the renewal of a passport; others, for
purposes even less respectable, and some even for criminal purposes,
as our records in more than one case will show. Under these cir-
cumstajices, while advocating all effective measures for the protection
of bona fide American citizens of foreign birth when they return to
P^urojje, I am slow to advocate anything like drastic measures likely
to arouse ill feeling between our own Government and any other and
§ 393.] TREATIES WITH GERMAN STATES. 403
sure to render the securing of the rights of bona fide American citi-
zens of foreign birth when abroad more difficult."
Mr. White, American amb. to Germany, to Mr. Hay, Bee. of State, April 21,
1900, For. Rel. 1900, 2.5-2G.
Mr. White also adverted to the fact that foreign-born persons naturalized
in Great Britain revisit their native land at their own risk, the
British Government declining there to protect them. In this relation
he cited Cockburn on Nationality, page 107.
" During the period covered, 243 persons have actually been expelled
from the German Empire. Of this number, 218 were males and 25
were females. Twenty-three persons were expelled on the strength
of paragraph No. 39, of the imperial penal code, after undergoing
imprisonment for theft, etc., and 220 on the strength of paragrajjh
No. 362, for vagrancy, begging, professional prostitution, and other
so-called offenses.
" Of these persons, 155 were of Austrian (including Hungarian,
Bohemian, etc.) nationality, 19 were Russian, 19 were French, 17 were
Dutch, 13 Swiss, 5 Belgian, 4 Italian, 4 from Luxemburg, 4 Swedish,
2 Danish, and 1 Norwegian.
" Of these persons, 90 were expelled by Prussian authorities, G3 by
Bavarian authorities, 43 by Saxon, 24 by imperial (Alsace-Lorraine),
9 by Baden, 7 b}' Hamburg, 3 by Weimar, and 1 each by the authori-
ties of Wiirttemberg, Mecklenburg, Hesse, and Reuss."
Compiled by Mr. Jackson, sec. of U. S. embassy at Berlin, from Nos. 1-
20, inclusive, of the Central-Blatt fur das Deutsche Reich, the
official weekly publication of the Imperial German home office, dated
from January 8 to May 21, 1897. (For. Rel. 1897, 229.)
M. F. Schaaf was born in Leipzig in 1872 and emigrated with his
parents in 1882 to America, where he became a citizen through the
naturtdization of his father in 1889. In September, 1899, after his
father's death, he returned to Leipzig, and after remaining there
^bout a year went to Altona, near Ilambm-g. Shortly after his
arrival in Altona he was expelled from Prussia on account, it was
said, of his father having neglected to obtain his release from Ger-
man allegiance before his emigration. He then removed to Ham-
burg, but soon received an order to leave that cit}' Avithin 14 days. In
view of the interest taken in the case by the American embassy, he
was allowed to prolong somewhat his stay in Hamburg, but the
authorities felt obliged to maintain the order of expulsion, as it Avas
assumed that he had emigrated in order to evade military service.
The Government of the United States, said Mr. Hay. considered
the (lerinan contention extreme and even scarcely reasonable, as
Schaaf had emigi-ated with his parents when only 10 years old.
404 NATIONALITY. [§ 393.
The United States, it was said, would regret if such cases indicated
a purpose " to hohl all American citizens of (lernian origin, who
emigrated during minority, amenable to the imputation of inten-
tion to evade military service, no matter what their age may have
been at the time of emigration." Such an assumj)tion w'ould, it
was maintained, be incomi)atible with the spirit and intent of the
treaties of naturalization, since it would almost amount to the injec-
tion into them of a " re(piirement of prior consent to change of alle-
giance, a re(iuirement not admitted by the negotiators of those
conventions."
JMr. White, the American ambassador, in reply explained the
Prussian position as follows:
" The position taken by the royal Prussian authorities is that it
is to be presumed that any one who emigrates from Prussia without
having pin-formed military service emigrated for the purpose of
evading such service, the age of the person in question at the time of
his emigration not being taken into account. The Prussian author-
ities hold that no such person should be alloAved to settle in Prussia
or to make a prolonged visit in that country Avhile still of an age
Avhen, had he remained a Prussian subject, he might be called upon
for military service. They consider that the provisions of the Ban-
croft treaties are sufficiently complied with if the person in question
is allowed to visit his former home and to remain there a few weeks;
and of late years, in certain parts of the country, expulsion orders
have become more or less frequent. The question of having obtained
permission to change allegiance does not appear to influence the case,
the idea being merely that a person should not be able, through a
few years' residence abroad and naturalization in a foreign country,
to return to his native place and to there sojourn, free from the duties
and obligations of other men of the same age who have lived there
continuously. It sometimes happens, of course, that local officials
show too much zeal and that there is real hardship connected with
a case of exi)ulsion, but it nuist not be forgotten that the number of
persons exi)elled or otherwise molested on account of their not having
performed military service is relatively very small when considered
in connection with the great number of American citizens of German
origin who visit their former homes every year.
" In (lermany a record is kept of every male child born in the
country. At the beginning of each calendar year official notice is
published to the effect that all males born during the twentieth pre-
ceding calendar year are to report for examination as to their fitness
for military service. At the end of the year proceedings are taken
against all those who have failed to re])()rt, and they are all sen-
tenced to pay a fine or undergo imprisonment, and warrants are
§ 393.] TREATIES WITH GERMAN STATES. 405
issued for their arrest. When such ;i person returns from the United
States or any other country, unless the fact of his change of nation-
ality is recorded and his name has been taken from the lists, he is
liable at any time to be called upon to pay the fine, the same being
almost invariably refunded, in the case of an American citizen, upon
intervention being made by the embassy. In ZahTs case he was prob-
ably sentenced several years before he became a citizen of the United
States.
" In this connection I beg to call attention to Mr. Kasson's dispatch
No. 124, of January (>, 1885, and to the inclosures therein. (For. Rel.
1885, p. 392.)"
Mr. Hay, See. of State, to Mr. White, anib. to Uerinany, Feb. .5. 1901,
158; Mr. White, anib. to (Jenuany, to Mr. Hay, See. of State, Feb. 10,
1901 : For. Kel. 1901, 158, 159.
In the case of Albert Ehrenstroem, a naturalized citizen of the
United States of German birth, who was ordered to leave Prussian
territory before February 1, 1901, the police authorities at Magde-
burg, replying to the inquiry of an American consul, stated that the
order of expulsion was " based upon an instruction from a higher
source, under which Germans formerly liable for military service
who return to German.y after having acquired American citizenship
are to be permitted to remain only for a short time, which is to be
measured by the circumstances and purjwses of their sojourn."
On March 20, 1901, the following general order was published:
" Military. — By higher authority the attention of police and munici-
pal officials has been called to the following: Persons who, before
fulfilling their military obligations, or for the purpose of evading the
same, have emigrated to the United States of America, and there
acquired American citizenship, will be ])ermitted to remain in Ger-
many only for a period of weeks or months, according to the circum-
stances of each case, but they will not be permitted to settle per-
manently in (iermany."
With reference to this order, the embassy at Perl in was requested
to report whether former (Jermans who had become naturalized in
other countries than the Ignited States were, on their return to Prus-
sia, expelled therefrom after a limited stay of a few Aveeks or months,
or "whether they were permitted to reside there indefinitely and to
carry on business for themselves or as agents of foreign commercial
houses. The embassy replied that there Avas ai)i)arently no intention
on the part of the Prussian (iovernment to discriminate against
American citizens, but that, in respect of the (juestion under con-
sideration, it was difficult to draw a })arallel (1) because (iermany
had no treaty with any other country similar to those of 1S()8 with
the United States, and (2) because, owing to the fact that obligatory
406 NATIONALITY. f § 394.
military' sorvioe oxistt'd in most all continental countries, few young
Germans enmigrated to them. Between many of those countries,
indeed, there existed informal correspondence, or even formal agree-
ments, under Avhich jjersons attempting to evade military service
were handed over to their home authorities. AVliere no treaty
existed, the returned (lerman was not considered as entitled to b ' pro-
tected by the authorities of the country in which he had become
naturalized, and was generally punished in accordance with German
law, this being the case even with British subjects, whose Government
generally declined to intervene in behalf of a naturalized subject
who returned to tlie land of his birth. The general rule of the
German authorities appeared to be to make it unpleasant for all
persons of German birth who had evaded military service in their
native country, whether their emigration took place for the purpose
of evading such service or not, it being held by the authorities,
especially in Prussia, that the sojourn of such persons for any length
of time caused discontent and dissatisfaction among persons of the
same age who had remained at home. As to the supposed reason
for the general order, the Prussian ministry of the interior had
stated that attention had merely been called to what had been the
practice for a long time, in order that persons who contemplated a
renewal of their residence in Germany might not be subjected to
hardship.
Mr." Ilay, Sec. of State, to Mr. Jackson, charge at Berlin. April 10, 1901,
For. Kel. 1901, 17.5; Mr. White, amb. to Germany, to Mr. Iluy, Sec.
of State, May 4, 1901, enclosing a report of Mr. Jackson, sec. of
embassy, of May 4, 1901, For. Kel. 1901, 177.
(5) OPERATION OF TREATIES.
§ 394.
The operation of the naturalization treaties with the North Ger-
man Union and other German States of 1868 is discussed in a report
of Mr. H. G. Squiers, second secretary of embassy at Berlin, April
17, 1897.'»
Between April 23, 1808, and April 7, 1897, nearly twenty-nine
years, there were presented to the German Government 447 cases,
of which 48 arose in Alsace-Lorraine, and 88 in Schleswig-Holstein.
Of the 447 cases, fSlG concerned persons who emigrated between
the ages of IG and 22. By the (Jerman law persons who have passed
their 17th year are placed on the military list.
Length of residence in the United States before and after naturali-
zation was also a significant circumstance. In 72 cases there was no
a For. Kel. lS97,'211-22(».
395.]
TREATY WITH BELGIUM.
407
record of this. In the remaining 375 cases, in which the record
existed, 205 were those of persons avIio returned within six years after
naturalization, while 212 out of 381 returned to their native land
within two years after naturalization.
Of the 4-17 cases, 325 Avere decided favorably. ISIore than half of
those decided unfavorably were cases of expulsion, especially from
Schleswig-Holstein.
In cases of arrest or of compulsory service, the certificate of natur-
alization was usually taken up by the authorities and, when the case
was finally decided, was returned to the owner.
In 104 cases, in which the intervention was unsuccessful, the rea-
sons for the failure were as follows: Less than five years' iminter-
rupted residence in the United States before naturalization, 4 ; deser-
tion from the German army or navy, 15 ; fine collected before natu-
ralization, 4; conduct such as to have a bad influence on the com-
munity, 7; nonextension of treaty of 18G8 to Alsace-Lorraine, 7;
deception as to facts, 1 ; acquisition of German nationality, 5 ; emi-
gration to avoid military service, 53 ; retention of German allegiance,
7 ; residence in Germany for more than two years, 2 ; emigration
without permission, 1.
The following is a summary of the grounds for and the result of
intervention :
1
1
o
1-1
®
g
g
Alsace-Lorraine .
Schleswig-Hol-
stein.
Grounds.
3
g
■-s
a
9
1
02
'6
1
a
%
(2
52
13
4
13
4
229
126
1
4
1
40
10
3
13
2
193
6!^
1
2
1
13
3
1
1
2
26
59
2
1
3
Arrest
Compulsory service and fine
Fine and arrest
3
Fine
7
6
21
6
9
4
1
10
23
2
47
Expulsion.
2
Fine and expulsion
2
1
Compulsory service or expulsion
Total
447
:^36
106
13
31
14
1
36
49
3
2. Belgium.
8 395.
A naturalization treaty with Belgium was concluded November 10,
18G8. It provides, broadly, that citizens of the one country " who may
or who shall have been naturalized " in the other shall be consid-
ered as citizens of the latter; but a five years' residence is requisite
to release from militarv oblitrations.
408 NATIONALITY. [§§ 306, 397, 398. "
3. SWEDKN AND NoBWAY.
§ 39G.
A naturalization convention between the United States and Sweden
and Norway was eoncluded May 'J(>, 18()9. Under this convention a
citizen of the one country who has resided in the other " for a contin-
uous period of at least five years " and been naturalized is recognized
as a citizen of the latter; but, by an accompanying protocol, it is
stipulated that the five y.ears' residence shall not be a prerequisite
where the individual has been discharged from his original citi-
zenship.
4. Great Britain.
§ 397.
By the convention between the United States and Great Britain,
signed May 30, 1870, naturalization, whenever acquired in the one
country, is recognized in the other.
As to the negotiation of this convention, see Moore, Int. Arbitrations, I.
405, r>()l. r>02, .50.3, 510; Dip. Cor. 1808, I. 159, 183, 331, 358; Moore,
Aniorit-an Diplomacy. 184-189.
J As to tlie reservation made, in behalf of persons already naturalized, of a
right of renunciation within two years after the exchange of ratifi
cations, see Mr. Fish, See. of State, to Mr. Packeuham, Sept. 4, 1871,
15 MS. Notes to Gr. Br. 340.
5. Austria-Hungary.
(1) conditions of change of allegiance.
§ 398.
Frangois A. Heinrich was born in New York in 1850 of Austrian
parents, temporarily residing in that city, who, when he was two or
three years old, returned with him to Austria. It w^as stated that he
at one time had a passport as a citizen of the United States, but also
that in 18()() and 1867 he travelled under an Austrian passport. It
apjieared, uj^on the authority of the Austrian minister at AVashington,
that by the laws of that country a foreign-born child of Austrian
parents took the nationality of the latter. The Austrian Government
having called upon Ileinrich to render military service, the Attorney-
General of the United States, to whom the case was submitted, ad-
vised that, as the naturalization convention between the United
States and Ausiria-IIungary of Sejitemljcr 20, 1870, recognized the
right of a citizen or subject of the one country to become a citizen or
subject of the other, and as Ileinrich had travelled under an Austrian
passport, these facts indicated a manifestation of consent on his part
§ 398.] TREATY WITH AUSTRIA-HUNGARY. 409
to be treated as an Austrian; that such consent, cooperating, with the
law of Austria with reference to the foreign-born chiklren of Aus-
trian subjects, and accompanied with continued residence in that
country, " effected a complete change in his nationality from xVmeri-
can citizenship to Austrian citizenship;" and that, having once
acquired the latter, he could not at pleasure cast aside his Austrian
nationality or the obligations pertaining thereto so long as he con-
tinued to reside in Austrian jurisdiction. The Attorney-General
therefore expressed the conclusion that, under the provisions of the
convention, Heinrich should be held by the United States to be an
Austrian subject and treated as such ; that he was " not an American
citizen, and, consequently, not entitled to jjrotection" from the
United States.
Williams, At.-Gen., Dec. 21, 1872, 14 Op. 154. "^
This opinion was coiumuniciited in sul»stiHice by Mr. Fish. Sec. of State,
to Baron Lederer, Aust. niin.. Dec. 24, 1872, For. Rel. 187:?, I. 78.
Under Art. I. of the convention of 1870, it is necessary that the
person shall have resided within the United States at least five years,
and during that time have been naturalized ; and the requirement of
five years' residence applies in all cases, even though the naturaliza-
tion in the United States is asserted under the special legal provisions
that allow admission to citizenship after less than five years' residence.
Mr. Rockhill, Act. Sec. of State, to Prince Ilaoul Wrede, Aug. 7, 189(!,
MS. Notes to Aust. Leg. IX. 27.3. See, also. For. Rel. 189(j, 1.3-1."),
citing Williams, At.-Gen., 1872, 14 Op. 154.
The Austro-PIungarian legation at Washington, June 8, 189G,
called attention to the necessity of using, where Austrians or Hun-
garians were naturalized in the United States, a form of oath Avhich
should " mention the fact of the existence of separate Austrian and
Hungarian citizenship," and which should " also, in referring to the
sovereign, allegiance to whom is renounced by the person relinquish-
ing his Austrian or Hungarian citizenship, make express mention of
the joint character of the ruler, Avho unites the two constituent parts
of the monarchy under his scepter." The oath shouhl therefore state
that the person renounced his "Austrian " or '' Hungarian '' citizen-
ship. To the statement that the applicant was an Austrian or a
Hungarian there might be added the words " and to renounce for-
ever all allegiance and fidelity to any foreign j)rince, potentate, state,
or sovereignty, and particularly to his Majesty the PvUiperor of
Austria and Apostolic King of Hungary."'
The Department of State sent a memorandum on the subject to
the governors of the several States and to the Atloniev-deneral of
the United States, for the information of tlie Federal and State
410 NATIONALITY. [§ '^^'^•
courts of (ho Union which were authorized to issue certificates of
naturalization,
I'riiK'o Wr«Hlo, clinrK*'. to Mr. Olney, Sw. of State, .Tune 8, ISOT., For. Rel.
18S»7. 2.3; Mr. Olney, Sec. of State, to Prince Wrede, charg6, .July 7,
ISiHi, For. Ilel. 1807, 24.
Ivan Dominik Benich (or John Benich) was born at Dvorska,
Hungar}', Aug, 8, 1871. In March, 1884, he received from his home
authorities a j)assport and emigrated to the United States, where, on
October 5, 1892, he was naturalized. May 16, 1893, being then on a
visit to his native place, he was arrested and held for military service.
He bore at the time his certificate of naturalization, and also a pass-
port issued April 15, 1893, by the United States legation at Vienna.
He was released on the intercession of the legation. Meanwhile
the question whether to strike his name from the military rolls
remained pending before the judicial authorities, and on May 20,
1894, the ban of Croatia decided that as Benich had not resided
uninterruptedly for five years in the United States, and therefore had
not acquired American citizenship in accordance with the conven-
tion of Sept. 20, 1870, he was to be considered as having gained it
fraudulently; that he consequently remained, under par. 50, Art. I.,
of the Hungarian law of 1873, touching the acquisition and loss of
citizenship, a subject of Hungary; and that the United States should
be a.sked to cancel his certificate of naturalization and passport.
The allegation that Benich had not resided five years uninterrupt-
edly in the United States was based on the fact that in November,
1888, he returned to his native place, remaining there till the end of
April, 1889, and meanwhile acting as a witness at baptisms and wed-
dings, arranging l)alls, and on one occasion obtaining a passport for
tise in Bosnia and Herzegovina ; and that he returned again in April.
1893, being soon afterwards arrested. It was therefore said that, as
his first absence from his native country lasted only three years and
several m(mths, and his second only four years, he could not have
resided in the United States uninterruptedly for five years.
In reporting upon the case, the minister of the United States at
Vienna said :
"They [the Hungarian authorities] seem to conclude, and in such
conclusion the foreign office seems to concur, that the five years' resi-
dence j)rovided for in the treaty means actual uninterrupted bodily
presenc-e of (he applicant for the period ])rescribed. Such an inter-
jwetation would make the accidental or ignorant crossing of the bound-
ary line of the nation, even for the moment, a suspension of his
inchoate right and recpiire a new inception of the probation period.
I can not subscribe to such a narrow and unnatural construction of
the language of the treat}'. I take the terms ' have resided ' and
§ 398.] TREATY WITH AUSTRIA-HUNGARY. 411
' residence ' to mean something more than mere personal presence ;
they are intended to have the hirger and more natural definition
which carries with it the idea of a fixed and permanent abode, an
abiding place selected with the animus manendi on the part of its
owner or possessor. The agent of our Government, in drafting or
consenting to the phraseologv" used in the treaty, which is attested by
his name, must presumably have had in mind the existing laws of his
own Government in reference to the subject-matter of the treaty
itself. This is indicated by the period of time required as to resi-
dence being the same as that in case of ordinary naturalized citizens
of the United States, and the entire phraseology of the section is not
unlike that used in the amended statute of 1870, enacted about two
months prior to the conclusion of this treaty. That act required that
' no alien shall be admitted to become a citizen who has not for the
continued term of five years next preceding his admission resided
within the United States.' (U. S. R. S., § 2170.) The language of
the treaty is : ' Citizens of the Austro-Hungarian monarchy who
hav'e resided in the United States of America uninterruptedly at
least five years ' and have become naturalized, etc., shall be treated as
citizens, etc. Both use the term ' resided.' The one requires that he
reside for a continuous term and the other that he shall have resided
uninterruptedly. If there be a difference in meaning, it must be
admitted that the statute is more rigorous in its requirements as to
residence than the treaty. It could more plausibly be argued that the
continued term of five years was broken by personal absence than
that his residence was interrupted thereby. It will be remembered,
however, that Congress gave a legislative construction to this legisla-
tion by striking out from the original act of 1813 the words ' without
being during the said five years out of the territory of the United
States,' the courts having held linder the old statute, as they were
obliged to do, that personal absence, though temporary, interrupted
the running of the statute. After the amendment so made in 1848,
however, the courts have been unanimous, so far as I am informed, in
holding mere personal presence not indispensable, and that mere tem-
porary absences, unaccompanied by changes of abode, habitation, or
intention, do not interrupt the probation of the alien.
" It will be observed that if this be the proper construction to be
given the treaty, the voluminous testimony taken by the authorities
of (^roatia, at an expenditure of so much time and the exhibition of
so great diligence, has but little bearing on the case itself, for if it be
established that young Benich returned to Croatia for a temporary
visit to his parents, with the fixed and continuing intenti(m of return-
ing to his home in Chicago, the acts j)roven by the numerous wit-
nesses would not be in conflict therewith. Tie might, without aban-
doning his residence, witness baptisms, attend marriages, arrange
412 NATIONALITY. [§398.
balls, and even receive passi^orts from Austria-Hungary, if he found
it necessary to visit Bosnia and Herzegovina. He was not yet a citi-
zen of the ITnited States; he was still a citizen of Austria-Hungary,
and the latter alone could grant him such a right. With due respect,
it seems to me that no fact enumerated in the findings of the court,
except the unexplained absence of Benich for so long a period of
time, tends to show an interruption."
The Department of State replied :
" The Department fully concurs in your view that a reasonable
and proper construction of the language of the treaty — resided un-
interruptedly— does not preclude a mere temporary absence of the
alien during the period of probation, when such absence is unaccom-
panied by any intention of changing his domicil."
Mr. Tripp, luin. to Aust-IIuug., to Mr. Greshara, Sec. of State, Aug. 23,
18S)4; Mr. Uhl, Act. Sec. of State, to Mr. Tripp, Sept. 14, 1894, For.
Rel. 1894, 3G, 38, 40.
Anton Guerra was born in Hrastnig, Styria, Nov. 2G, 1875. He
emigrated to America in August, 1889. He was naturalized in Penn-
sylvania, May 3, 1897, and, obtaining a passport, returned to his
native town. After his arrival there, he was arrested, Aug. 5, 1897,
for nonperformance of military service, but through the aid of a
local attorney was released. In the following spring, when the
recruits were summoned for service, being still in Hrastnig, he was
again notified, March 6, 1898, to present himself for military duty.
He then appealed to the United States consul-general at Vienna,
who referred his letter to the legation ; and, upon the presentation
of the case by the latter, he was set at liberty and his name stricken
from the military lists.
Mr. Tower, inin. to Austria-Hungary, to Mr. Day, Sec. of State, June 4,
1898, For. Rel. 1898, 16.
Mr. Tovvei*, in his dispatch to Mr. Day, said: "Upon inqiiiry into the
facts, I discovered that Mr. (iuerra helongs to that chiss of foreigners
who go to the ITnited States and remain there long enough to ohtain
the i)rivileges of citizenship, after which, upon various pretexts,
tliey return to tlieir native country with an American passport.
Most of tliem have never performed the slightest service to our
Government in retxu'n ; and that is the case with Anton Guerra,
who has never paid any taxes, owned any property, estahlished any
tangible interest, or served ui)on a jury within the llnite<i States of
America.
" Nevertheless, it was evident that he had emigrated to America before he
was liaiile to military duty in Austria-Hungary, and therefore, under
the jn-ovisions of the treaty of 1870, his United States i)assiK)rt
should have been sutticient protection to him from arrest. His
passport had been presented to the authorities in Styria and disre-
garded by them. It was this disregard of his jiassport which led me
to present his case at once to the Austro-IIungarian nnnistry of
foreign affairs."
§ 398.] TREATY WITH AUSTRIA-HUNGARY. 413
Julius Graber, a native of Hungary, who had been naturalized in
the United States, was, on his return to Hungary, arrested for non-
perforniance of military duty. His arrest was due to the fact that
he had failed to declare his American citizenship ; and, when the fact
of his American nationality was ascertained, his name w^as erased
from the military rolls.
For. Uel. 1890, 25.
A similar case is that of Erminio Demartlni, For. Rel. 1899, 25-31.
See, for other cases of arrest, followed by discharge. For. Rel. 1899,
GO-67, 08-75.
Karl Sitar, a naturalized citizen of the United States, was arrested in
Austria on a charge of violation of the military laws. For some
unexplained reason he did not, when arrested, exhibit his American
citizenship papers. He was releasetl when he exhibited them. (For.
Rel. 1897, 18.)
Mendel Tewel, a naturalized citizen of the United States, was arrested
in Austria in consequence of a mistake made in his naturalization
papers and passport, in both of which he was described as Mae Tewel.
(For. Rel. 1897, 19.)
Case of I'aul Schwabek involving no principle. (For. Rel. 1897, 21.)
Ignatz Gutman, a naturalized citizen of the United States, of Hun-
garian origin, on his return to his native country voluntarily enlisted
in the army. Subsequently becoming tired of the service, he sought
to be discharged ; and, on the strength of representations that he had
been forced into the army, the legation of the United States at Vienna
Avas instructed to ask for an investigation of the case, with a view
to his release. The legation finding, by an inquiry into the circum-
stances, that he was not only not arrested for nonperformance of
military duty, but that, after being rejected as a conscript on the
ground of his American citizenship, he was accepted as an enlisted
man for three years on his own application, forbore to present the
case to the foreign office and reported it for instructions. The course
of the legation was approved.
For. Rel. 1898, 37-4G.
See Mr. Moore. Assist. Sec. of State, to Messrs. McKinley and Gottlieb,
May 26, 1898. 227 MS. Dom. Let. 054, For. Rel. 1898, 45.
Aaron Kenig, a citizen of the United States, was arrested in Aus-
trian Galicia in December, 1897, on a charge of attempting to assist
an Austrian subject to leave the Empire without a permit in order
to evade his obligation to perform military duty. Kenig. who was
born in Roumania in 18(')8, emigrated to the United States in 1883
and was naturalized in 1892, In May, 1897, he revisited Europe,
and in November of the same year was married at Busk, in Austrian
Galicia. Setting out in December with his wife for his homo in
America, he took with him a cousin of his wife, a youth of eighteen
414 NATIONALITY. [§ 398.
years nametl Taofror, Avhost* passage lie agreed lo \ydy. On reach-
ing the Austrian frontier the awtht)rities accepted Mr. Kenig's pass-
port, which was issued in AVashington in May, 1897, as a sufficient
identification of himself and liis wife, hut inunediately arrested Tae-
ger, who liad not ohtained the ])ennit which is necessary to enahU^
an Austiian suhject to cross the frontier, and who had no document
of any kind to exhihit. Tae<ier was sent hack to his home at T^usk,
whik' Kenig was hound over to answer the charge above stated, liis
money and passport being taken from him and hehl by the authori-
ties as a sort of bail for liis appearance before the district court at
Taworzno. When he appeared there, he was advised that the case
had been transferred to the circuit court at Zloczow, and he Avas or-
dered there for trial. He did not appear, however, but jH-oceeded
to Vienna and made a complaint to the United States legation. He
admitted that he was paying Taeger's passage to the United States,
and intimated that if he could ol>tain sufficient money he would dis-
regard the sunnnons of the court and go directly to America. In
January, 1897, he notified the legation by mail that he had taken this
course. The legation then made a statement of the case to the im-
perial minister of foreign affairs, requesting that "'justice" be done,
and that Kenig's passport and money be returned to him. It ap-
peared by the imperial minister's reply that the money and passport
were held pending a final determination of the case, and that the
money would be used either wholly or in part to pay the costs of the
legal proceedings.
The Department of State approved the i^urpose of the legation
" to press for an immediate disposal of the case, and for the return in
whole or in part of the money belonging to Mr. Kenig;-' but added:
" If the action of the Austrian court in retaining the funds taken
from Mr. Kenig with the object of defraying from them the cost
of the proceedings against him in the event of his conviction is in
accordance with Austrian law, as is alleged, the Department w'ould
not be disjjosed to contest the claim. Under our system of law the
money would probably not be taken from one accused of such an
offense upon his arrest, but it does not follow that such practice
founded upon the law of a country is not joroper and valid."
Mr. Hay, Sec. of Stjite, to Mr. Ilordliska, charf,'^ at Vienna. March 4,
ISlti), For. Ilel. IS! ID, 22.
See, for the legation's rejiort on the case, For. Rel. 1890, 11-14.
The cirenit coni-t at Zloczow, February 11, 18J)9, decided, on motion of
the Htate's attorney, to withdraw tiie action against Kenig and to
return to him his money and passport, which was done. (For. Rel.
1800, 2a, 24.)
November 7, 1899, the Austrian legation at Washington presented
to the United States a proposal for a modification of the naturaliza-
§398.] TREATY WITH AUSTRIA-HUNGARY. 415
tioii treaty of September 20, 1870. The reason given for the pro-
posal was that for a number of years a numerous class of people in
Austria-Hungary had been making use of the stipulations of the
treaty for becoming nominally citizens of the United States, with the
sole object of living in Austria-Hungary in defiance of its military
laws. After having obtained naturalization in the United States at
an early age they had, said the Austrian Government, returned to the
country of their origin intending to live there permanently, but in-
voking their American citizenship when called upon to fulfill mili-
tary duty. " The United States Government," said the Austrian pro-
posal, " can have no possible interest in the acquisition of a class of
citizens who fulfill none of their duties of citizenship toward them,
and look upon American citizenship merely as a loophole to avoid
the laws of the country in which they intend to live. Nevertheless,
they feel obliged to extend their protection to these mala fide citizens,
and the Austro-Hungarian Government, bound by the stipulations
of the treaty, had no other way to escape from the demoralizing in-
fluence of these people but by expelling them, in virtue of the right
of every government to close its territory against undesirable aliens."
It Avas therefore proposed (1) that the obligation to recognize natu-
ralization under article 1 of the treaty should be made conditional
on the act of expatriation not having taken place in contravention of
the laws of the country of origin, or (2) that the stipulation that
naturalized persons remained liable to trial and punishment for acts
connnitted before their emigration should be freed from the restric-
tion imposed in article 2 of the treaty, Avhich provides that a citizen
of the Austro-Hungarian monarchy, naturalized in the United States,
shall not, on his return to his original country, be held to military
service or remain liable to trial and punishment for the nonfulfill-
ment of military duty.
The United States declined to accept the proposal on the ground
that either amendment would annul all the beneficial provisions of
the treaty relating to subjection to military duty. It was admitted,
however, that there were "" doubtless grave abuses of the privileges of
naturalization."
For. Ilel. 18f)0, 79-80.
See, in a similnr senso, as to prior proposals of a like kind, Mr. Fre-
lingluiysen, Sec. of State, to Mr. Taft, niin. to Aust.-lhuig. No. 48,
Aug. 2r». 188:5, MS. Inst. Aust.-IIung. III. 2.52; Mr. Wharton. Act.
Sec. of State, to Mr. (Jrant, niin. to Aust.-IIung. No. 140, Aug. 20,
1891, MS. Inst. Aust.-IIung. III. (522.
"The Department is quite of oi>inion tliat an attempt to make use of
the treaty merely for the purpose of escai)ing the hurdens which may
he involved in l»(>aring allegiance to either of the contracting parties
should ho discontinued." (Mr. Tdaine. Sec. of State, to Mr. Grant,
miu. to Aust.-IIung. May 1(!, 1890, For. Kel. 1890, 15.)
416 NATIONALITY. [§ 390.
(2) PRACTUK OF EXPULSION.
§ 399.
" The cliarp^o craffaires ad interim of the ITnitod States of America
has the honor to invite the attention of his exoellencv Count Kahioky,
ini])ei-ial and roval minister of foreign affairs and of the imj)erial
household, president of the council, to the inclosed copy of an order of
exjinlsion addressed to Mr. Antonio Chirighin, a naturalized citizen
of the United States.
"According to Mr. Chirighin's statement to this legation, he, an
Austrian subject, left his country in 18()8, emigrated to the United
States, and after a residence of eleven years was naturalized and
became a citizen of the United States.
"Having some family business to attend to at Merce, in the island
of Brazza, Dalmatia, he returned to Austria-Hungary, apparently
quite recently, as his passport is dated at Washington, July 2G, 1880.
" His conduct does not appear to have Ix^en in any manner subject
to criticism, and his only offense, as your excellency will see by the
inclosed order of the local authorities, seems to have l)een that he
has availed himself of the i)rivileges distinctly accorded to the sub-
jects of Austria-Hungary by the convention between Austria-
Hungary and the United States of 1870 relating to naturalization.
" The undersigned believes that on an examination of the subject
his excellency the imperial and royal minister of foreign affairs will
cause to be issued such instructions as will secure to Mr. Chii'ighin
such hospitality and protection as is accorded by the United States
to subjects of Austria-Hungary visiting that country for purposes of
business or pleasure, and such as will enable him to transact freely
and fully that business which caused his visit to the province of
Dahnatia."
Mr. Loo, olmrKo at Vieiiiiii, to Count Kalnoky, Sept. 25, 1880, For. Ilel.
1887, 14.
The order of o.\])ulsion reads as follows:
"To Antonio ("iiikioiiin, of Girolonio, Merce:
"As a result of tlio suyuestiou of the ."id of September, 1880, which con-
tained four propositions, the I. and K. district captain decides to
inform you that, accordinjr to the interpretation of the last line of
Article II. of the state treaty of 20 September, 1870, R. L. I. 1871,
Xo. 74. no ]»enal procedure will be taken against you concerninj;
your military (conscriptional) duties.
"Considering, however, that the ol)taining of the rights of American
citizenshi]) does not exclude the idea (iK)int) that it was but a sub-
terfuge to release you from the duties of tlie conscription which were
iujposed upon you by law as a citizen of Austria ;
" In view that the adoption of such a course might serve as a public
scandal and suggest to others to follow the bud example;
§399.] TREATY WITH AUSTRIA-HUNGARY. 417
" I, by tlie^e presents, invite you to take immediately the steps necessury
to reacquire your original (ancient) citizenship, and subsequently
to i)resent yourself voluntarily to answer the requirements of the
law of conscription, or, on the other hand, to (juit the countries
represented in the councils of the Austrian Empire; to which end
I name the 1st day (f October of this year as the last day for your
sojourn in those countries; this date liaving elapsed without your
having dei)arted, it will become my duty to proceed, out of respect
for the public order, against you according to the fifth line of para-
graph 2 of the law of July 27, 1871 (B. L. I. No. 88) ; that is to say,
I nuist proceed to your expulsion from the above-named countries.
" The inclosed 38 soldi are the residue of the money paid by you in
advance for the purpose of telegraphing to the gendarmerie at San
Pietro.
" Spalato, 3 September, 188G.
" The I. and R. district captain,
" Tbuxa."
" The order of expulsion admits the fact of American citizenship,
and, by giving the alternative of leaving the country or reassuming
the former status of Austrian citizenship, seems also to admit not
only that Mr. Chirighin has conunitted no offense against the laws
of the Emi^ire since his return, but that he is a desirable person to
have as a citizen.
" His only offense appears, from these papers, to be that he became
an American citizen without having fulfilled the obligations of the
Austrian conscription laws, and returned to his former home.
" The difficulty and delicacy of this class of cases arises from the
undoubted legal rights possessed here by the chief local officers to
decree, in the exercise of their police duties, the expulsion of any for-
eigner who disturbs, or who they believe will disturb, the jiublic weal.
" AVhile I should not feel disposed to dispute the right of one gov-
ernment to expel the citizens of another country for cause, I do not
see that we can accept as sufficient cause the doing of acts which our
treaty provides shall be legal.
" The order having been brought to my official notice, I deemed it
proper to assert, in the broadest wa}', our treaty rights, . . . and
I hope that the course pursued may meet with your approval."
Mr. Lee, charge at Vienna, to Mr. Bayard, Sec. of State, Oct. 4, 1880.
For. Ilel. 1887, 13. " Your course is aiiproved by the Department."
* (Mr. Bayard, Sec. of State, to Mr. Lee, Nov. 3, 188G, For. Rel. 1887,
16.)
" My action in the case as therein reiwrted has resulted in the rescinding
\ of the said order of expulsion, I have informed Mr. Chirighin of the
^ result and cautioned him to be very prudent in his conduct, as I be-
lieved it would not be possible to secure a lil<e result a second tiinc^
in the same case." (Mr. Lee to Mr. Bayard, March 1,1887, For. Rel.
1887, 18.)
H. Doc. 551— vol 3 27
418 NATIONALITY. [§ 399.
IIu^o Klamor Avas born in Vienna, Austria, in 1859, and came to
the United States in 1873 at the age of fourteen. In 1883, when
nearly twonty-four years old, he was naturalized. In 1885, owing
to the advanced age of his father, he returned to Vienna. He was
twice subsequently called upon to appear before the authorities as a
fugitive from military service, but upon exhibiti(m of his certificate
of naturalization the proceedings against him were discontinued. In
1887 his father died and he and his brother undertook the settlement
of their deceased parent's business. On January 15, 1889, the im-
perial-royal director of police issued an order under paragraph 323
of the penal code of 1852, directing his expulsion on or before the
27th of that month. When the case was brought to the attention of
the xVustrian Government, the imperial-royal foreign office stated
that Klamer, before he was naturalized, had received three calls for
military duty in Austria ; that he was not, however, to be punished
for nonfulfillment of military duty, but that his expulsion was
" decreed on the ground of public order, a right which every govern-
ment must reserve for itself." The foreign office adhered to this
view, although the time of Klamer's expulsion was afterwards post-
poned till September 1, 1889. The Department of State expressed
the ojjinion that under all the circumstances of the case, including
Klamer's early emigration to the United States, his long residence
there, and the object of his return to and residence in Austria, his
expulsion was not justified, and the legation was instructed to bring
the matter to the attention of the imiDerial-royal ministry for foreign
affairs in that sense.
Mr. Lawton, min. to Austria-Hungary, to Mr. Bayard, Sec. of State, ^March
2, 188S), For. Rel. 1889, 21 ; Mr. Blaine, Sec. of State, to Mr. Lawton,
March 22,J889, id. 23; Mr. Lawton to Mr. Blaine, April 13, 1889, id.
24 ; Mr. Blaine to Mr. Grant, min. to Austria-Hungary, Oct. 8, 1889,
id. 27.
In this, as in other and subsequent cases, the action of the Austro-Hun-
garian Government was based, not upon any allegation of offenc-e
within the terms of Art. II. of the naturalization treaty of 1870, but
uiMju tlie allegation that the individual did in fact leave Austria with
a view to avoid nnlitary service and that his presence in that country
was undesirable. (See ilr. Adee. Act. Sec. of State, to Mr. Hunter,
April 12, 1895, 201 MS. Dom. Let. 480.)
David Hofmaim was born in Bohemia March 21, 18G4. In July,
1883, when nineteen years of age, he emigrated to the United States,
where he became a naturalized citizen. Eleven years after his emigra-
tion he returned, in May. 1894, to his native country. Two months
later, in July, he was ordered by the district authorities to leave the
country within eight days ^' for reasons of public welfare,'' since it
was "contrary to public i)oace and order that persons who have
evaded the military law in this manner should sojourn in this coun-
§399.] TREATY WITH AUSTRIA-HUNGARY. 419
try." The governor of the province, in dismissing an appeal from
the order of expulsion, declared that the reasons given for the order
were justifiable. Mr. Tripp, minister of the United States at Vienna,
in reporting the case, said : ^
" My own convictions are very strong in this matter, that every
nation has the right to bar its doors against obnoxious citizens of
other nations for reasons which to itself may seem sufficient, Avithout
cause of complaint on the part of the nation whose citizen is thus
debarred. We have assumed the right in case of China and in par-
ticular classes of cases iii reference to the citizens of other countries.
I am disposed to think the reasons that Austria-Hungary gives for
closing her doors to former citizens who have openly evaded her mili-
tary laws a good one. It is an undeniable fact that hundreds of
young Austro-Hungarian citizens approaching the age of military
service emigrate to America, and, remaining there just long enough
to acquire citizenship, return again to their native country to perma-
nently reside, resuming their former citizenship and allegiance to the
Government in everything but its military laws. Many of these re-
turned /Me M^/o- Americans are loud in their defiance of the military
power, and openly and shamelessly boast of their smartness in being
able to enjoy all the privileges of a government without being obliged
to share its burdens or responsibilities. The example of these 'Amer-
icans ' before the young men of the country, to say nothing of their
teachings and boastful assertions of immunity, is pernicious and
against public order and ready obedience on the part of the citizens
to the necessarily harsh enforcement of the military laws of this
Government. I have seen very much of these 'American ' citizens
during the past year. Many of them are married and in business
here; they have no intention of returning to America; they own no
propert}^, and they pay no taxes in America ; they have not even the
ties of family or friendship to bind them to their adopted country;
their citizenship is a fraud, a fraud against their adopted as well as
against their native country. In time of peace they burden us with
their claims of loyalty; in time of war they deny their assumed
allegiance and claim, by abandonment, a restoration of their civil
rights to which they are entitled by birth."
Mr. Ti'ipp, min. to Austria-Hungary, to Mr. Gresham, Sec. of State. Aug.
13, 1804, For. Uel. 1894, yt)-32.
The view taken by the Austrian Government of the general question, as
expressed in a note written to the United States legation in an an;ilo-
gous ease, was as follows :
" The exi)ulsion took place in conformity with article 2 of the law of
.July 27. 1871. because his stay in Austria was considered inconsistent
with public order.
420 NATIONALITY. [§ 399.
" Not rominjr under the provisions of 1, 2, and 3 of Article II. of the
treaty of Sei)tenil)er 20, 1870, he whs not, on Ills return to Austria,
held to perform military service. The treaty has therefore not been
violated, inasmuch as his United States citizenship was recogniz(^d.
"The above-meiilioncd treaty, however, does not deprive the imi)erial and
royal jiovernment of the riffht to issue a decree of expulsion against
any foreigner wliosc stay in the country may he considered as being
inconsistent witli public peace. In the i)resent case the United States
citizenship was obtained with the evident intention, or at least with
the full knowledge, of avoiding by so doing the performance of the
duties of an Austrian subject, under the protection of the treaty of
September 20, 1870.
"The naturalization toolc place, therefore, when regarded from an Aus-
trian legal iK)int of view, doubtless in fraudcm legis.
" The provisions of the Austrian military laws of October 2, 1882, were
not framed until after the treaty of September 20, 1870, had been
concluded. The result is that the United States Government does not
alwiiys judge the proceedings of the authorities here against former
Austro-IIungarian subjects from the same point of view, however jus-
tified the measures may be, according to our laws." (For. Ilel.
1804, 35.)
The decision of the Department of State was as follows :
" llofniann, having come to this country a short time before he
arrived at the age for military service in Austria, is, by the terms of
the treaty of 1870, exempt, upon his return to that country, from trial
and punishment for nonfulfillment of military duty.
" There is, however, nothing in the treaty or in the general prin-
ciples of international law to prevent the Austro-Hungarian Gov-
ernment from expelling Hofmann, upon his return there, under the
circumstances of his case, ' for reasons of public welfare.' The expul-
sion seems to have been made after due judicial examination into
the facts, and without any circumstances of harshness or oppression.
" I can see no ground for exception or protest against the action
of the Austro-IIungarian authorities."
Mr. Uhl, Acting Sec. of State, to Mr. Tripp, min. to Austria-Hungary,
Sept. 4, 181)4. For. Rel. 1894, 3(5.
See, as to tlie case of Hugo Klamer, For. Rel. 1890, 15; supra, p. 418.
Gustav Wolf Louis Fischer was born in Saxony, July 14, 18G8. On
the death of his father his mother removed to Vienna, where he was
naturalized as an Austrian subject, November 17, 1885. In March,
1888. he was notified to appear for military duty, but on examination
was pronounced mifit for service. He tlien went to the United States,
where, December 5, 1893, he was naturalized. March 2, 1895, he
obtained a j)assp<)rt and returned to Vienna. Early in 1900 he was
summoned before a district nuigistrate and ordered to be banished,
l^'rom this order he appealed to the governor of Lower Austria. At
this point the minister of the United States at Vienna interposed, and
§ 399.] TREAT!' WITH AUSTRIA-HUNGARY. 421
asked that the ortler of expulsion l)e revoked. The xVustrian Goverii-
nijent stated that Fischer, at the time of his emigration, was chissified
as a person " remanded," and was under an obligation to report for a
later examination. It was admitted that his naturalization was valid
under the treaty of September 20, 1870, but it was maintained that
his expulsion was not to be considered as a punishment, but as an
administrative measure. It was, said the Austrian Government, a
measure inspired by " consideration for public order, and is based on
the belief that the latter suffers offense when a person, by assuming
foreign citizenship, avoids performance of those duties to his country
which are placed upon him as upon all his fellow-citizens, and then,
protected by this new citizenship from the punishment otherwise
resultant from this avoidance of duty, returns and settles permanently
in the midst of his former countrymen, who find themselves in a con-
dition not so favorable as is his. Such an act is not only provocative
of discontent in all those who fulfill their obligations to the state, be
their fulfillment voluntary or compulsory, but it acts also as a bad
example, and, were such proceedings unchecked or of frequent occur-
rence, would work positive harm to the defensive jiower of the state.
. . . The offensive impression and the corruptive influence of the
action under discussion lie in the extreme conditions under which
Fischer, who was still pledged to duties to the state in this country,
accomplished his naturalization in America, and also in his return
here to settle in Austria. It is immaterial whether the intention to
return, after avoiding military duty, was already formed in his mind,
as it is in a majority of such cases, or whether the intention to return,
perhaps originally nonexistent, was formed at a later date."
Count Szeesen, ministry of for. aff., to Mr. Harris, Amer. niin., June .5,
1900, For. Rel. 1900, 21, 22.
Commenting upon this note, the Department of State observed
that " the weakness of this position is that it does not rest upon any
averment of offensive conduct on Mr. Fischer's part which would
justify the individual application in his case of the right of expulsion,
but, rather, appears to la}- down a general principle whereby the
expulsion of every American naturalized Austro-IIungarian, who was
under admitted liability to serve at the time of emigration, would be
a necessary proceeding under the general policy of the state. Such a
sweeping doctrine would to a serious extent neutralize the provisions
of our naturalization treaty with Austria-IIungar3\ That instru-
ment, weighing all the circumstances under which persons of military
age might emigrate without fulfillment of their obligations, dis-
criminated between the classes securing immunity by naturalization
and those not so securing it. It can not be expected that this Govern-
ment will acquiesce in a comprehensive enlargement of the nonim-
422 NATIONALITY. [§399.
ninnc class by the ox ])arte act of tho other contracting party." It
"Nvas also observed that, so far as the Austrian answer dealt with the
merits of the case, it comprised two distinct propositions — Mr.
Fischer's action prior to his naturalization and his action since. The
iirst, as had been stated, was covered by stipulations of the treaty,
and the second, which imputed to him an intention to settle in Aus-
tria, brought his case within article 4 of the treaty, which seemed to
import that a naturalized citizen might reside indefinitely in the coun-
try of his origin without incurring any disability and without being
obliged to resume his original citizenship. The Department of State
further said: " Mr. Fischer, it now appears, has asked that the order
of expulsion be postponed until September, and his petition has been
granted. This arrangement may be deemed to embrace a voluntary
engagement on his part to quit Austro-Hungarian territory by a
given date, and he will be expected to abide thereby, . . . the
principles upon Avhich this Government rests in contesting the general
claim of the Austro-Hungarian Government . . . being in no
wise prejudiced by Mr. Fischer's action. . . . You should make
our views upon this point and upon the broader point of expulsion
for individual cause clear to the minister of foreign affairs."
Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, July 19,
1900, For. Rel. 1900, 22.
See, also, Mr. Ilay, Sec. of State, to Mr. Harris, min, to Austria-Hungary,
April 13, 1900, For, Rel. 1900, 18.
The Government of Austria-Hungary having stated that the treaty
of September 20, 1870, contained no provision granting to American
citizens the right to remain, and particularly the right to remain
indefinitely, in Austria, and that their right to remain was therefore
subject to the laws of the country, according to which (particularly
Clause v., par. 2, law of July 27, 1871) persons who are not Austrian
subjects may " be expelled from the entire territory or from part
thereof, if their stay, for reasons of danger to public order or secu-
rity, is objectionable," the United States observed that the question
whether naturalized citizens of the United States of Austrian origin
might be expelled from Austria, as well as the question when they
might be so expelled, would seem to depend upon the particular
circumstances of each case; that the United States maintained that
the " pernicious character of the returning person should be affirma-
tively shown in justificati(m of the extreme resort to expulsion, and
that the right so claimed should not rest on a vague and general
theory of incf)nveni(Mit example which might be stretched to cover
the cases of all Austro-Hungarians naturalized here, and returning
to their original jurisdiction ;" that the treaty undoubtedly gave the
right of inoffensive return, and that this stipulation was not to be
§§400,101.] NATURALIZATION NOT RETEOACTIVE. 423
impaired by construction. The Austrian foreign office had alleged
as the ground of expulsion in the case under consideration that " the
ostentatious manner in which he [John Richter] evaded his legal
duty to do military service is causing public scandal and may very
easily give others an impetus to similar demoralizing acts." As
Richter was only 14 years of age when brought to the United States
and would not have been subject to military duty till he reached
the age of 19, it might, said the Department of State, be questioned
whether he left for the purpose of evading such duty. In view of
the fact, however, that Richter had been informed by the Austrian
authorities that he might return to the place from which he was
expelled, and as he had made no further complaint, it was not deemed
desirable to take up the case with the Austrian Government.
Mr. Hay, Sec. of State, to Mr. Herdliska, charge at Vienna, .Tiily 9,
1901, For. Rel. 1901, 10.
" While the Austro-IIungarian Government has in the many cases that
have been reported of the arrest of our naturalized citizens for
alleged evasion of military service faithfully observed the provi-
sions of the treaty and released such persons from military obliga-
tions, it has in some instances expelled those whose presence in the
community of their origin was asserted to have a pernicious influence.
Representations have been made against this course whenever its
adoption has appeared unduly onerous." (President McKinley, an-
nual message, Dec. 3, 1.900, For. Rel. 1900, xvi.)
For paragraphs 1 and 2 of the Austrian law of July 27, 1871, regulating
expulsion by the iK)lice, see For. Rel. 1892, 13.
6. Denmark ; Ecuador.
§ 400.
Treaties of naturalization were concluded by the United States
with Ecuador, May G, 1872, and Denmark, July 20, 1872.
VI. NATURALIZATION NOT RETROACTIVE.
1. General Principles.
§ 401.
The decree of naturalization does not operate retroactively.
Ex parte Kyle, 07 Fed. Rep. 300; State v. Boyd, (Neb.) 48 N. W., 739;
Dryden v. Swinburne, 20 W. Va. 89; Wulff v. Manuel (Mont.) 23
Pac. 723.
A person who was born a citizen of Mexico, and lived on the east
side of the Rio Grande, in New ISIexico, at the time of the treaty
of Guadalupe-Hidalgo, can not maintain an action for an Indian
424 NATIONALITY. [§ 401.
depredation which occurred i)rior to his becoming a citizen of the
United States in the manner jjrovided by the treaty.
De Baca v. United States (1901), 30 Ct. CI. 407. This case contalnB an
elaborate discussion of the lioundaiMcs of Texas.
" The change of national character subsequent to the alleged of-
fence does not release an offender from i)enalties previously incurred
when legally brought within the jurisdiction of the country whose
laws have been violated."
Mr. Marcy, Sec. of State, to Mr. D'Oench, Nov. IG, 1853, 42 MS. Dom.
Let. 54. See, to the same effect, Mr. Marcy, Sec. of State, to Mr.
Marie, Feb. 20, 1854, 42 MS. Doni. Let. 228; to Mr. Neil, March
3, 1854, id. 2G0 ; to Mr. Jackson, charge at Vienna, Nov. G, 1854, and
April G, 1855, MS. Inst. Austria, II. 103.
" ^Vlien an alien who has been naturalized in the United States
voluntarily returns to his native country with legal obligations con-
tracted before he left there, the naturalization is not held to absolve
him from those obligations if the government or individual to whom
they may be due shall think proper to enforce them."
Mr. Marcy, Sec. of State, to Mr. Vrooni, uiin. to Prussia, No. 37. Dec.
26, 1856, MS. Inst. Prussia, XIV. 242; adoptetl by Mr. Cass, Sec.
of State, to Mr. Wright, min. to Prussia, No. 4, Oct. 16, 1857, MS.
Inst. Prussia, XIV. 252.
See, also, Mr. Marcy, Sec. of State, to Mr. Florence, M. C, Feb. 17, 1857,
4G MS. Dom. Let. 338 ; Mr. Cass, Sec. of State, to Mr. Fisher, Dec. 14,
1857, 48 MS. Dom. Let. 30; Mr. Fish, Sec. of State, to Mr. Fisher,
July 8. 1870, 85 MS. Dom. Let. 260; to Messrs. Shorter & Brother,
March 13, 1873, 98 MS. Dom. Let. 129; Mr. Frelinghuysen, Sec. of
State, to Mr. O'Reilly, Dec. 10, 1884, 153 MS. Dom. Let. 394.
A naturalized citizen requested interposition for relief from a fine
imposed by the authorities of his native place for his alleged unlaw-
ful emigration. The fine was imposed Jan. 11, 1870; the naturaliza-
tion took place April 11, 1870, three months later. On this groinul,
the Department declined to interfere. (Mr. Fish, Sec. of State, to
Mr. Etschmann, May 2, 1870, 84 MS. Dom. Let. 379.)
AVTiile a naturalized citizen who returns to his native country is
liable, like any other i)erson, to be arrested for a debt or a crime, he
can not rightfully be punished for the nonperformance of a duty
which is supposed to grow out of his abjured allegiance. An arrest
of a former subject, who has become naturalized in the United States,
can not be justified on the ground that he emigrated contrary to the
laws of his original country.
Black, At. Gen., 1859, 9 Op. 356.
" It is apprehended, however, that the Moorish Government may be
mistaken, if it supposes that the effect of the naturalization of the
§401.] NATURALIZATION NOT RETROACTIVE. 425
person adverted to, supposing it to have taken place, would be to
weaken his liability for his debts in Morocco, even if he should return
to that country. He might, in that case, be prosecuted for them in
the consular court, and this Government is bound to presume that im-
partial justice would there be dispensed."
Mr. Fish, Sec. of State, to Mr. Mathews, Oct. 2:\, 1872. MS. Inst. Barb.
Powers, XV. 311.
" Desertion is an offense from the penalty of which exemption by
foreign naturalization is neither claimed nor conceded by the United
States or, so far as known, by any other country."
Mr. Bayard, Sec. of State, to Mr. Turner. Sept. 10, ISS."), l.">7 MS. Dom.
Let. 100.
See, to tlie same effect, Mr. Bayard, Sec. of State, to Mr. Bain, April IS.
188.^, I'm MS. Dom. Let. 1.30; to Mr. Mander.son. May 1!). 1887. KU
id. 213; Mr. Adee, Second Assist. Sec. of State, to Mr. Todd, Dec. 10.
1897, 223 id. 320.
While " desertion from active military service is generally regarded as not
condoned by lapse of time or change of nationality." and no official
action can be taken in siicli a case, yet, where a British suliject. who
deserted from the British army in his yotitli in 1842. afterwards
became an American citizen, and served with distinction in the
American civil war, attaining the rank of brevet brigadier-general,
the American minister in London was instructed that he might per-
sonally present the request of the person in question for the removal
of whatever disability might rest on him by reason of his desertion
forty-five years before. (Mr. Bayard, Sec. of State, to Mr. Endicott,
June 14, 1887, 1(>4 MS. Dom. Let. 020.)
June 17, 1887, on the Queen's Jubilee, a i)roclamation was issued granting
pardon to all deserters from the land forces of England of more
than five years' standing, provided the deserter surrendered himself
within two months if at home, and within four months if abroad. A
person who failed to avail himself of the terms of the proclamation
remained amenable to the i>enalties prescribed l»y the laws of (Jreat
Britain in case of his return. (Mr. Olney, Sec. of State, to Mr.
McDowell, June 11. 189."), 202 MS. Dom. Let. .".:W ; Mr. Adee. Second
Assist. Sec. of State, to Mr. Todd, Dec. 10. 1807. 22:5 MS. Dom. Let.
320.)
The crime of desertion is not condoned b.v law or trejity and generally
not by lapse of time, but a person, who deserted from the (Jernuin
army in 1873 and came to the United States ;ind was naturalized, was
advise<l that if he would prei)are a i)etition for pardon in the German
language, and send it to the imi)erial war office, and then send a coin-
to the Department of State, the American ambassador at lU^'lin
would be instructed to support it so far as he i)roperly might. ( Mr.
Hill, Assist. Sec. of State, to Mr. Wlielden, June 10. VMH). 24.". .MS.
Dom. Let. 004.)
American citizenship will not exempt a person from trial in (Jreat Britain
for the offence of mutiny conunitttMl there while a suliject of that
country. (Mr. Bayard, Sec. of State, to Mr. Willey, April 20, 1885,
155 MS. Dom. Let. 245.)
426 NATIONALITY. [§ 401.
In 1887 the Aniorican legation in Paris presented to the foreign
office the case of J. C Carlin, a naturalized American citizen of
French origin, who, prior to his naturalization, deserted from a
French merchant vessel in the United States, and who desired to re-
turn to France for the purpose of visiting his family. The French
foreign office, in its reply, besides referring to the charge of desertion,
stated that Carlin belonged to the class of 187G, and, as he did not
respond to the call for the army, he was declared, February 15, 1878,
to be in a state of insiihmission. He was therefore, said the foreign
office, subject to two penalties, (1) imprisonment from one to three
months for the desertion (art. GG, decree and law of March 24, 1852) ;
(2) imprisonment from one month to one year for insiibmission (art.
Gl, law of July 27, 1872). These two offences being successive could
not fall under the law of limitation, and, as there was nothing in
Carlin's prior conchict to justify a favor, permission for his return
was refused.
Mr. Vignaud. charRo at Taris, to Mr. Bayard, Sec. of State, Sept. 5, 1887,
For. Rel. 1887, 351.
Naturalization can not retroactively affect a penalty imposed before
the naturalization took place.
Mr. Adoe, Act. Sec. of State, to Mr. -Kunze, Aug. 3, 1897, 220 MS. Dom.
Let. 38.
Referring to the case of Efraim Rubin, a naturalized citizen of the
United States of Austrian birth, who was arrested in his native
country for noni^erformance of military service, but afterwards re-
leased, and who claimed $9,000 as damages on account of his arrest
and imprisonment, and $3,000 in addition by w^ay of solatium, the
Department of State said : " It is not the practice of the Department
to i^resent claims arising out of the military arrest and detention of
naturalized American citizens who return to the countrv of their
birth."
Mr. Adoe. Acting See. of State, to Mr. Harris, min. to Austria-IIungary,
Sept. 20, lS!»t), For. Hel. 18t)0, 75. See, to the same effect, Mr. Hill,
Assist. Sec. of State, to Mr. Rubin, July 10, 1900, 240 MS. Doui. Let.
341).
The same rule is laid down in Mr. Hill, Assist. Sec. of State, to Mr. Kar-
lovec, Nov. 21, 18!)8, 232 MS. Dom. Let. (il4.
For a contrary view, in certain earlier instances, see Mr. Fish, Sec. of
State, to Mr. Davis, min. to (Jermany, Nov. 21, 187(5, MS. Inst. (Jer-
nuuiy, XVI. 2()4; Mr. Kvarts, Sec. of State, to Mr. White, min. to
Germany, .Tune 2('.. 1S7i). id. 477; and Mr. F. W. Seward, .\cting S(h'.
of State, to Mr. White, min. to Germany, August 27, 1879, MS. lust.
Germany, id. 505.
§ 402.] NATURALIZATION NOT RETROACTIVE. 427
2. German Treaties.
(1) military cases.
§ 402.
" The information given below is believed to be coiTect, yet is not to
be considered as official, as it relates to the laws and regulations of a
foreign country.
"A German subject is liable to military service from the time he has
completed the 17th year of his age until his 45th year, active service
lasting from the beginning of his 20th year to the end of his 36th year.
"A German who emigrates before he is 17 years old, or before he has
been actually called uj)on to appear before the military authorities,
may, after a residence in the United States of five years and after due
naturalization, return to Germany on a visit, but his right to remain
in his former home is denied by Germany, and he may be expelled
after a brief sojourn on the ground that he left German}^ merely to
evade military service. It is not safe for a person who has once been
exj^elled to return to Germany without having obtained permission to
do so in advance. A person who has completed his military service
and has reached his 81st year and become an American citizen may
safely return to Germany.
" The treaties between the United States and the German States
provide that German subjects Avho have become citizens of the United
States shall be recognized as such upon their return to Germany if
they resided in the United States five years.
" But a naturalized American of German birth is liable to trial and
punishment upon return to Germany for an offense against German
law committed l)efore emigration, saving always the limitations of the
hnvs of (lennany. If he emigrated after he was enrolled as a recruit
in the standing army; if he emigrated while in service or while on
leave of absence for a limited time; if, having an unlimited leave or
being in the reserve, he emigrated after receiving a call into service
or after a public ])roclamati()n requiring his appearance, or after war
broke out, he is liable to trial and ])unishment on return.
''Alsace-Lorraine having become a part of Gernumy since our natu-
ralization treaties with the other (irerman States were negotiated,
American citizens, natives of that ])roviuce, under existing circum-
stances, may b(> subjected to inconvenience and ])()ssible detent it)n by
(he German authorities if they return without having sought and ob-
tained permission to do so from the imperial governor at Strassburg.
" The authorities of AViirtemberg recjuire that the evidence of the
American citizenship of a former subject of AViirtemberg which is
furnished by a passport shall be supplemented by a duly autheuti-
428 NATIONALITY. [§ 402.
c-atcd oortifirato showiii<j: five years' residence in the United States, in
order (hat fiillilhnent of the treaty condition of five years' residence
may appear separately as a fact of record.
"A former (lerman subject a<>:ainst whom there is an outstanding;
sentence, or ^^■ho fears moh'station upon return for an offense against
(ierman law, may petition the sovereign of his native State for relief,
but this Government can- not act as intermediary in jiresenting the
petition."
Circular notice, Dcpiirtniont of State, Washington, Jan. 23, 19()1, For.
Kol. 1901, KM).
Tliat .•! person cliarRod, not with evasion of military service hy emigration.
but with desertion, remains liable to jmnishment inuler Art. II of the
treaty wth Kaden, see For. Hel. 1!)<«. 442.
Natives of Wiirtemberg, who, after being naturalized in the United
States, return to their native country, should carry not only Amer-
ican passports, but also their certificates of naturalization. The
certificate .should be authenticated by tliQ German consul nearest the
|)ers()n\s home, and if, as is often the case, it does not state that he ha.T
lived five years uninterrui:)tedly or continuously in the United States,
he should take with him a written statement that he has so resided,
signed and sworn to by two friends before a notary, and the signature
of the notary should be acknowledged by the German consul.
Besides, if the person in question was not naturalized in his full and
exact baptismal name, he should take with him another statement,
sworn to and acknowledged in the same manner, to the effect that
" Henry , avIio was naturalized on , 18 — , before the court
of at , is identical with Ileinrich C. G.
[or whatever the name may be], son of and , who was
born at on the day of , 18 — ."
Mr. .Tohnson, consul at Stuttgart, to Mr. TThl, Sept. IS. 180.^>, For. Rel. 189.'>,
I. .~)18.
See Mr. Olney, Sec. of State, to Mr. Jackson, charge at lierlin, Feb. 1.'},
18*)(>, For. ]{<'l. ISitl-., I. ,^>20-.''>2.3.
Tn Germany it is the practice of the local authorities to keep records
of the birth and whereabouts of all residents, and it is the duty of
every German, upon changing his residence, to inform the authorities,
of both his old and his new home, of the fact. From time to time
notices are issued for all males of a certain age to report for examina-
tion as to fitness for military service. If, after a certain time, anyone
has not reported, a judgment of fine or imprisonment, or both, is taken
against him and is executed Avhenever possible. Tt is this that gives
rise to the frequent so-called ''military cases." If the ]:>erson against
whom such a judgment is sought to be executed satisfies the local
authorities that he has accjuired another nationality or has lost his
§402.] NATURALIZATION NOT RETROACTIVE. 429
German nationality, his name is stricken from the list of persons
liable to military service, or the judgment is canceled, as the case
may be.
By section 1 of the law of the North German Union of June 1, 1870,
which was extended, April 22, 1871, to the German P^mpire, Gernum
nationality is acquired through the acquisition of citizenship of any
of the federated States and is lost with the loss of such citizenship.
By this law the German nationality is lost by ten years' residence
abroad, and this loss may be attested by a certificate issued by the
authorities of the State of which the individual was a citizen.
For. Rel. 189G, 213-215.
For annual reports on " military cases " in Germany, see the vol-
umes of Foreign Relations of the United States, under the title
*' Germany."
Robert Weidel, a native of one of the States composing the North
German Union, emigrated to the United States in 18G8, and in 1873
became a citizen. In 1871 a fine of 50 thalers was imposed on him in
German}^, and was paid by his father. In 1874, on his return to Ger-
many, he "svas arrested. Representations were made by the American
legation, and he was released; but repayment of the fine was refused,
on the ground that when he emigrated he had already become liable
to military service, and that by his emigration he violated the penal
.law, in consequence of which he was fined before he became an Ameri-
can citizen. On this statement, Mr. Fish held : '' If such fine could be
lawfully imposed in his absence (and the voluntary payment thereof
by his father seems to recognize it) , it is difficult to see how his having
become a citizen of the United States two and a half years thereafter
could give him the right to reclaim the amount ... In granting
the high privilege of its citizenshij), the United States does not assume
the defense of obligations incurred by the party to Avhom it accords
its citizenship prior to his acquisition of that right, nor does it assume
to become his attorney for the ])rosecution of claims originating prior
to the citizenship of the claimant."
Mr. Fish, See. of State, to Mr. Davis, luiii. to Gonnany, Nov. 24. 1ST4. MS.
Inst. Prussia, XV. r>70.
In tho course of tlio instruction, Mr. Fisli said :
" It would l>c cajttious to say tliat tliis a<'t, viz, liis loavins his native
country in violation of its laws, was not ])rior to his emigration. It
was a statutory offence, and as concerns him, and his native coiuitry.
it was connnitted hefore he reached the territory of the Fnited States.
or could claim any protection from this Government. It would he
alike aj^calnst the comity and friendship due to another and a
friendly state, and to the spirit of the treaty, and to the interests of
the Ignited States, that this government should assume tlie defence
of those thus violating the euuctmeuts of their native land, or sbould
430 NATIONALITY. [§402."
encouraco, by its protection, tbo rocufreuf*! of any violations of the
hnvs wlilcli a friondly jmwer presorllMJs to its citizens.
"It would seem clear, therefore, that the act alleged against Weidel l.s
one for which, under the treaty, a (Jernian naturalized in this country
remains liable to trial and i»uuishiuent on his return to his native
land.
" Itut in tins case it is jiot lU'cessary now to de<Mde this general or ab-
stract (luestion. The tine had been iint)osed on Weidel. and was
actually i>aid in Febnniry. 1S71. two and a half years before he be-
came a citizen of the United States."
ITonrv ^Iimibour, ji native of l*riissia, entered the army in 1804
and served three years, and Avas then phiced on the reserve rolls.
April 1, 18()J), in time of peace, he obtained leave of absence for a
year and came to the United States. He remained beyond the ex-
piration of his leave; and in the summer of 1870, when the Franco-
German war be<j:an, and the reserves were called out, was sum-
moned by ])roclamation to present himself for (hity, on pain of being
declared a deserter. Knowledge of the proclamation reached him at
Pittsburg. He did not respond, but appears then or afterwards
to have determined to become a naturalized citizen, which he did at
Cleveland, Ohio, in June, 18T4. In the following September he
returned to Oermany, where he was arrested and condemned to a
year's imprisonment for desertion. On his trial he admitted that he
intended to remain in (Jermany indefinitely, and had no intention of
living permanently in the United States, and the circumstances indi-
cated that his object in becoming naturalized in the United States was
to gain protection against prosecution for failing to obey the summons
of 1870 when he should return to Germany. The German Govern-
ment took the ground not only that his admission or declaration of a
w'ant of intent to return to America operated as a renunciation of his
naturalization, but also, though less clearly, that he was not entitled
to the benefit of the provisions of the treaty of 18()8 against prosecu-
tion for offences occurring after emigration. In reporting the case
to the Department of State, Mr. Davis, who was minister to Gernumy,
expressed the opinion that, during the three years in which the Ger-
man may be in active service, his departure might properly be held
to render him liable to punishment for desertion, and that a similar
rule might apply where the reserves were actually called out; but
that in time of ])eace, when the reserves were not on duty, the mem-
bers were free to emigrate to the United States. Mr. Fish, after an
examination of the correspondence leading up to the treaty, of the
debates in the diet, and of the circulars of the ministers of justice
and of the interior of July 5 and G, 1808, expressed the conclusion
that a person " having served the required three years and being placed
on the reserve rolls, having emigrated in time of peace, when no exist-
§402.] NATURALIZATION NOT RETROACTIVE. 431
ing obligation to perforin military service existed, and having become
naturalized in good faith after a residence of five years, and who, al-
though temporarily in Germany, intends in good faith to return and
reside in the United States, appears to be secured by the terms of the
treaty from punishment for a failure to j^i^rform military service
when the obligation arises after his emigration." It was true, said
Mr. Fish, that Mumbour's leave of absence was for a limited time;
but the time was a long one, and the leave was given with intent to
allow him to go out of the country. " " I have not inquired," ob-
served Mr. Fish, " whether it be provided by German law that a
failure to return could under any circumstances relate back and con-
stitute a technical offense at the date leave was obtained. P^ven if
such were true, the treaty fairly contemplates an offence occurring
actually, not technically, prior to emigration. Mumbour's resolution
not to return and to become naturalized is said to have been taken
only in the summer of 1870." In conclusion, however, Mr. Fish said :
•" Under such circumstances this is an inifortunate case for the presen-
tation of a principle, or in which to hope for advantage from further
discussion. As Arndt's case was decided differently, the circum-
stances of bad faith surrounding this case have not improbably caused
the decision, ... I am^ therefore, of opinion that it is not advis-
able to make Mumbour's a test case, or to assume that in future a
similar decision will be made ; but it seems to me better, in connnuni-
cating with the foreign office, to refer to the circumstances which sur-
round the case, and, while regretting the decision, to ascribe it to these
surroundings and decline to believe that the German authorities will
follow it in future."
Mr. Fish, Sec. of State, to Mr. Davis, luin. to Germauy, No. Ill, July
21, 1875, MS. Inst. Germany. XVI. 70.
" So far as the knowledge of this Department extends, the effective
working of the treaty during the ten years and more of its existence
has not proved a hardship to hotia fide naturalized citizens whose de-
parture from their native land has not been marked by any violation
of law, and whose return to Germany has been orderly and for private
ends of business or pleasure. In contrary cases it is hardly to be ex-
pected that any reciprocal agreement accei)table to both nations would
absolutely secure a returning naturalized citizen from the conse-
quences of a punisjiable act connnitted on German territory, either
prior to his expatriation or subsequent to his return."
^r. Evarts, Sec. of State, to Mr. Williams, of the House ("onnnittee on
Foreign Affairs. Fel). .5, 1871). 1:5 MS. Report Hook, 810.
"As a general rule, naturalized citizens of the United States of
America of German birtli are protecte<l by their American citizenship
432 NATIONALITY. [§ 402.
from liiil>ility to service in the German army wlien they temporarily
revisit that country. The exceptions to that rule are those arising
under the second article of the naturalization treaty between the
United States of America and Germany; as, for example, when a
man has emigrated while in actual service (desertion) or when
enrolled for duty and awaiting a call to service; or if, after attaining
the age fixed by German law for military service, he is guilty of some
act or omission with the design of evading such service.
" It is impossible for this Dej^artment to say in advance what
molestation naturalized American citizens of German birth may meet
with from the authorities of (iermany by reason of questions arising
as to their liability to military duty there. In case of arrest, however,
they nuiy be assured of all proper protection from this Government
and its representatives."
Mr. Blaine, Sec. of State, to Mr. Lang, April 7, 1881, 137 MS. Dom. Let. 74.
See Mr. Evarts, Sec. of State, to Mr. Bac-lirach, March 2.'}, 1877, 117 MS.
Doiu. Let. 429 ; Mr. Evarts, Sec. of State, to Mr. Coke, U. S. S., May
27, 1879, 128 MS. Dom. Let. 203.
" In the cases which have hitherto arisen [of German subjects
naturalized in the United States] the payment of the fine has gener-
ally been the only penalty exacted from a German evading military
service and becoming naturalized in this country. Such fines, how-
ever, have as a general rule been remitted in cases where application
has been made to that effect by this Government. It is only in
extreme cases of actual desertion that military service is exacted."
Mr. FreliuKluiyseu, Sec. of State, to Mr. Wilson, Feb. 19, 1885, 154 MS.
Doiu. Let. 288.
" If the man in question [who emigrated from Germany after
reaching military age, but before being actually put into the army]
does not return to Germany he will undoubtedly be fined for absence
from liis country at the military age, and if the fine is not paid an
injunction or attachment Avould, in the ordinarj^ course of law, be
put on his property, or his share of his parents' property which is
fixc<l by law. If lie does not at present return to Germany, the fine
will eventually (7 years) exi)ire by limitation, but in the meantime
the ])i-()])('rty can not be divided. His right to his inheritance would
not be absohitcly forfeited, according to the understanding which this
Department has of the (ierman law."
Mr. Bayard. Sec. of State, to Mr. Endicott, May 22, 1885, 155 MS. Dom.
Let. 47(;.
"Your letter of the lOtli ultimo, stating that you left Germany in
1880; that you have purchased land in Washington Territory; that
§402.] NATURALIZATION NOT RETROACTIVE. 433
you intend to become a naturalized citizen of this country as soon as
you reach the age of twenty-one years, and enquiring whether, under
these circumstances, you or your people in Germany can be punished
on account of your failure to respond to a notice to return to your
native country to perform military service, has been received.
" In reply I have to inform you that it is understood that the Ger-
man authorities can do nothing more than to place an attachment
upon any estate your parents may leave, to prevent its being divided
until your military fine has been paid. This attachment would expire
in seven years by limitation. Under these circumstances your parents
need not pay the fine which wall be assessed against you."
Mr. Bayard, Sec. of State, to Mr. Authes, August 7, 1885, 156 MS. Dom.
Let. 482.
"You will be [if a deserter] liable to ininishment on your retiu'n to Ger-
many. If, however, you have merely been fined for emigration with-
out permission, the fine can be released by the intercession of our
legation at Berlin." (Mr. Bayard, Sec. of State, to Mr. Brauer, Feb.
9, 188G, 159 MS. Dom. Let. 15.)
Jacob Gallewski was born in Germany, September 21, 18.58. In
July, 1873, he emigrated to the United States, where he was natural-
ized May 5, 1884, under the name of Jacob Phillii^s. In the same
month he returned to his native place, wdiere, in 1887, he was com-
pelled to pay fines and costs for alleged evasion of military duty.
The case was brought to the attention of the German Government,
with the request that it be investigated and that the amount of the
fines and costs be returned, together with the citizenship papers. The
German Government replied that it was not considered feasible to
repay the fines and cancel the costs, and gave as a reason for this
decision (1) that the sentence under which the fines were collected
was pronounced by a royal Prussian court on March 20, 1884, when
Gallewski was "still a Prussian subject;" (2) that when the fines
were collected he had already sojourned in (iermany beyond the two
years mentioned in Article IV. of the treaty of February 22, 1868;
and (3) that besides, on April 29, 1887, he fornuilly declared before
the proper Prussian authorities that he intended to renuiin perma-
nently in Germany, and divested himself of all rights as an American
citizen.
Mr. Pendleton, miu. to Germany, to Count Bismarck. April 5. 1S87; Count
Berchem to Mr. I'endleton, July 20, 1SS7; Mr. I'endleton to Mr.
Bayard. ,7uly 22, 1887 : For. Hel. 1887, ;i97-:«)S.
April 13, 1888, Ludwig AYalter, a native of Alsace, was sentenced
})y the land court at Saargemiind to ]iay a fine of ()00 marks and costs
of the proceedings, for failure to appear and perform military duty.
H. Doc. 551— vol 3 28
434 NATIONALITY. [§ 402.
The costs amounted to nearly 100 marks. Of the whole amount due,
540.1)2 marks were collected out of his share of his mother's estate.
In 1891 the authorities, on the petition of Walter's attorney, remitted,
as an act of grace, the remainder of the fine, amounting to 147.84
marks; but they declined to return the sums already collected.
Mr. IMielps, inin. to Geiiuany, to Mr. Blaiue, Sec-, of State, No. 431, April
25, 1S02, enclosing copy of a note of the Gorniau foreign office of
April 21, 1802, ^):^ MS. Dosp. Germany.
See Mr. Wharton, Act. Sec. of State, to Mr. Phelps, No. 438, June 29, 1892,
18 :MS. Inst. Germany, 595.
" If Mr. 's interest in any estate he may have inherited in
Germany has been attached by the German authorities for the pay-
ment of any military fine which may have been assessed against him,
it is possible, but not certain, that he might be able to obtain the
release of the proj^erty through the intervention of our embassy at
Berlin.
" If Mr. desires to make apj^lication for the release of his
property, the Department will bring the matter to the attention of
the German Government upon being furnished with a copy of his
certificate of naturalization and with an affidavit setting forth the
facts of the case, with a view to such action as the circumstances may
be found to warrant."
Mr. Day. Assist. Sec. of State, to Mr. Dygert, March 29, 1898, 227 MS.
Dom. Let. 3C.
See Mr. Frelinghuysen, Sec of State, to Mr. Weniger, Dec. 23, 1884, 153
MS. Dom. Let. .502.
e
" Your Xo. 16G5, of the 10th instant, reports that Paul N. Fried-
laender, a native of Germany, was naturalized at Chicago May 28,
1897, after having resided in the United States for a full term of five
years; that his mother was called upon about a jear ago to pay a fine
on his account, and that the embassy had addressed the foreign office
asking the refunding of any money already paid on account of his
failure to report for military service, and the cessation of all pro-
ceedings against him which may have been taken on the same account
and his recognition as an American citizen. . . . You further
state that Friedlaendor had been sentenced to jDay a fine or suffer im-
prisonment by the judgment of a local court April 10, 1900, on
account of his unautliorized emigration; that the German foreign
office has advised that Friedlaender petition the Emperor directly
for a vacation of the judgment or remission of the penalty, and sug-
gested that in order to expedite matters his petition be supported by
the embassy, which the latter declined to do for the reason that the
case is governed by the naturalization treaty of 1868 and by the two
ministerial decrees of July of that year, and that since the Prussian
§402.] NATURALIZATION NOT RETROACTIVE. 435
minister of justice has decreed that the penalty for i^unishable
emigration is not to be executed there woukl appear to be no reason
for a formal petition of pardon.
" To this the foreign office replied, advising that Friedlaender send
in a petition before coming to (irermany, as otherwise a demand for
payment will be made upon him and difficulties for him will arise
therefrom, as then the remission of the penalty Avill not at that time
have been introduced in the official way.
" You express doubt whether you should give support to any peti-
tion by Freidlaender, as by so doing it might be construed as an
admission of tlie correctness of the position taken by the foreign
office, rendering it necessary to pursue the same course in respect of
every American citizen of German origin desiring to visit his former
home.
" The naturalization convention of 18G8 provides:
"Article I. Citizens of the North German Confederation who hecome natural-
ized citizens of the United States of America and shall have resided uninterrupt-
edly within the United States five years shall he held by the North German Con-
federation to be American citizens and shall be treated as such. This article
shall apply as well to tht)se already naturalized as those hereafter naturalized.
"Article II. A naturalized citizen of the one party remains liable to trial and
punishment for an action punishable by the laws of his original country and
committed before his emigration, saving always the limitations established by
the laws of his original country.
"Article IV. If a German naturalized in America renews his residence in
North Germany without the intent to return to America, he shall be held to have
renounced his naturalization in the United States. . . . 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.
"The circular of the minister of justice, dated July 5, 1868, states
that it was the prevailing intention of the treaty that in conformity
with its second article the punishment incurred by ])unisliable emi-
gration is not to be brought to execution on occasion of a return of
the emigrant to his original country if the returning emigrant has
obtained naturalization in the other countrv in conformity with the
first article of the treaty.
" The circular of tiie minister of the interior, dated July G, 1808,
states that it was the prevailing intention of the treaty that in con-
formity Avith Article II. of the treaty the punishable action conunitted
by the unauthorized emigration of a citizen of tlie confederation to
the United States of Auierica should not be made the ground for a
penal prosecution upon the return of such person to his former
countrv after absence of not less than five years, and that the punish-
ment for such action, even though already legally declared, should
not be consunnnated if the jierson has acquired in America the right
of citizenship in conformity with Article I. of said treaty.
436 NATIONALITY. [§ 402.
"A state has the uiKiiiostionablo \ogi\\ right to regulate under penal-
ties either the emigration of its subjects or the iinniigration of aliens,
as also to j^unish its nationals for failure to report for military serv-
i(,'e, except so far as restrained 1)V treaty. (1 Kivier, 2G9 ; 2 Wharton,
sec. 171.)
"A state does not, however, necessarily take official notice of the
naturalization of its subjects as citizens of another state. Conse-
<juently, in the absence of such official knowledge, it may, if author-
ized to do so by its own laws, proceed against them by judicial trial
and condenniation, even in their absence. With such treatment by it
of its own sul)jects no other state has any concern.
"As the case is stated, Friedlaender was a native-born German sub-
ject and appears to have been condemned as for punishable emigra-
tion. If he had received i^ermission to emigrate, the judgment was
not imlawfid, though erroneous in point of fact, unless the fact was
shown at the trial ; if he had not received such permission, it was not
unlawful unless at the trial proof was submitted showing his natural-
ization in the United States and his compliance with the terms of the
treaty. As the case is stated, it does not appear that the judgment
was unlawfully rendered, although erroneous. And as the German
court or (irovernment woidd not know this error without evidence of
the facts which brought Friedlaender within the exemption of the
treaty, it is entirely i)roper that he should take steps before the court
to have the judgment vacated and set aside, on proof of the facts
which would have constituted a good defense of the action if they
had been presented at the trial, or that he should petition the Em-
peror to vacate the judgment, submitting the facts and proofs neces-
sary to show that the judgment was in fact given in violation of the
treaty.
" While this may result in some inconvenience in practice, it is the
course pursued in the United KStates in analogous cases. If a judg-
ment by default has been rendered against a person during his ab-
sence, provision is usually made for his application to the court,
within a given period, to have tlie judgment set aside for error of law
or fact. If a person has been condemned as a criminal, he may have
judicial i)r()ceedings to correct an erroneous conviction, and in the last
instance may api)eal to tlu' Executive to grant a pardon.
" The advice of the (ierman foreign office that an appeal be made to
the S^mperor to set aside the judgment on the grounds stated in your
dispatch, so far from involving a concession that the conviction was
not erroneous in fact, may be accepted in the sense that it was errone-
ous because rendered in violation of the treaty, as authentically inter-
preted in the circulars. \ i)ardon would be inappropriate as imply-
ing a guilt which is shown not to exist in fact, yet if this is the only
§ 403.] NATURALIZATION NOT RETROACTIVE. 487
way the Emperor can lawfully proceccl, the proceeding should be
accompanied by you with this interpretation.
" The better course in all such cases is for the naturalized American
to have proceedings instituted in the proper court to vacate the judg-
ment, if such remedy is given by the local laws; and in all cases if
they have notice they should make defense by counsel if allowable to
suits of that character while pending. They should not burden the
embassy by asking it to relieve them from the consequences of their
own neglect to defend; but it is, of course, proper for you to render
them all necessary assistance, even when they could have avoided
trouble by timely attention to their own interests,"
Mr. Hill, Acting Sec. of State, to Mr. White, auib. to Germany, July 2«i,
1901, For. Kel. 11X)1, 181.
(2) STATUTES OF LIMITATION.
§ 403-
By the treaty of naturalization with the North German Confedera-
tion, it is provided that crimes committed before emigration may
1)3 punished on the return of the emijj^rant, saving always the limi-
i.iiion established by the laws of his original country. The natur-
.'.iization treaties with the other Oerman States add the words " or
v.uy other remission of liability to punishment.'' Bavaria adds to
(his that the returned emigrant is not to be made punishable for the
act of emigration itself, and Baden makes s])ecial provision concern-
ing trial and punishment for nonfulfillment of military duty.
Mr. Fisli, Sec. of State, to Mr. Bancroft, inin. to Germany, Ajtril 14,
187.S, For. Rel. 187.'}, I. 270, 280.
" It is true tliat the treaties with tlie four Soutli German States expressly
add in words that tiie returnin.ir emij^rant shall he safe from pun-
ishment in all cases when a resident citizen enjoys such an imnui-
nity, hut those forms of remission of liability to punishment, other
than that of limitation, exist only hy pul)lic acts, and are as such
enjoyed hy (>veryhody, naturalized or nativ«> <'itizen of a foreign coun-
try, who comes to (Jermany. . . . Thus the live treaties are on
this point absolutely identical." (Mr. Bancroft, min. to Germany, to
Mr. Fish. Sec. of State, May 8. 187:?, For. liel. 187:?, I. 284, 287-288,
where the reasons for this statement are given.)
In an instructi(m to the legation at Berlin, ^Nlay 21, 1SS7, ISfr. Bay-
ard stated that it api)eare(l by a disi)atch from the legation. No. 95,
of March 21, 1879, jjublished in Foreign Relations for 1879, page
878, that by the law of "Wiirtemberg. where property wns attnclied to
enforce the payment of a fine iin|)osed uj)on a person found guilty
of desertion for failing to perforui military duty, the attaclnnent
expired by limitation. In this relati(m Mr. Bayai-d asked (he lega-
488 ' NATIONALITY. [§403.
tion to furnish, if ])racticabk', an abs^tract of (ho limitation laws of
Germany rehitin*; to attachments, fines, and other penalties for the
nonperfonnante of military duty or desertion. The legation, in
its Xo. 451), June 21, 1887, transmitted a report on the subject
prepared by Mr. Coleman, secretary of legation. It was subse-
(]uently stated by the legation in its No. 484, July 28, 1887, that a
rej)eated examination by Mr. Coleman of the German laws failed to
show the existence of any provision by which the running of the
statub' was interrupted by absence beyond seas or other absence from
Germany.
Mr. Rayard, See. of State, to Mr. Pendleton, niin. to Germany. May 21,
1887; Mr. I'oiulleton to Mr. Rayard, June 21, 1&87, and July 28,
1887 ; For. Rol. 1887, 389, 392, 399.
Mr. Coleman's report reads as follows:
"Abstract of liinitatiou laws of Germany relating to fines, attachments to
secure the same, and to other penalties for the nonperformance of
military duty and for desertion.
" I. Limitation for nonperformance of military duty (in the words of the
German i)enal code 'violation of military duty').
" The statute declares the offense to exist in the following three cases,
assigninj^ to each its penalty :
"(1) Where a person owing military duty, in order to avoid entering the
standing army or navy, leaves the territory of the lOmpire without
permission, or after having reached the age of military duty, remains
without that territoi'y without permission.
" The punishment for this offense is a fine of from 150 to 3,000 marks, or
imprisonment of from one month to one year.
"(2) Where an ofticer, or a physician holding the rank of an officer of the
reserve, the ' Jjandwehr,' or ' Seewehr,' emigrates without permission.
" The punishment for this offense is a fine not exceeding 3,000 marks, or
arrest, or imprisonment not exceeding six months.
"(3) Where a ])erson owing militaiy duty emigrates after the puhlication
of a decree hy the Emperor, issued with reference to tlie existence of
war, or to the danger of an outbreak of war.
"The punishment for this offense is imprisonment not excee<ling two
years and a fine not exceeding 3.(MK) marks.
"The jn'operty of the person charged with this offense may he attached,
in so far as in the opinion of the judge such course is re(]uisite to
secure the amount of the highest fine which might he inii)oscd, to-
gether with the cost of the jd'oceedings.
" When prosecution is barred by liinitation. — ' Violation of military duty,'
in the sense here under consideration, is denominated a misdemeanor,
and prosecution for the same is barred by limitation after five years,
at which time any attachment imiKJsed on the pi'operty of the of-
fender becomes inoperati-ve.
"Interruptions of the runniny of the statute. — Every judicial measure
adopted against the ofTciidcr on account of the offense interrupts the
running of the statute, wliicli begins to run anew after the interrup-
tion. If the connnenccMKMit or tlie continuation of a penal jtroctH'd-
ing is deiMMident njton anothci' question which must be first decided
in another proceeding, the statute ceases to run until such decisiou
Is reached.
§ 403.] NATURALIZATION NOT RETROACTIVE. 439
" When execution of a judgment is barred. — 'The ea-ccution of a judf/nicnt
for violation of military duty is barred by limitation in five years.
" Runniny of the statute and interruptions to same. — The statute begins
to run with the day on which the judgment becomes valid (rechts-
krjiftig). Every act of the authority upon whom the execution of
the judgment devolves which has for its aim such execution, as well
as the arrest of the offender for the purpose of such execution, inter-
rupts the running of the statute. After the interruption in the exe-
cution of the judgment the running of the statute begins anew.
"The execution of a fine adjudged concurrently with imprisonment is not
barred by limitation earlier than the execution of the punishment of
imprisonment is barred.
"II. Limitation for desertio7i (Fahnenflucht).
"The German military penal code (Militiir-Strafgesetzbuch) declares that
he who, without permission, quits the military or naval service for
the purpose of permanently evading the performance of the service
lawfully devolving upon him shall be rcyarded as yuilty of desertion.
"The penalty attaehed to the offense under varied cireutnstances. — 1. (a)
The penalty for desertion is imi)risonment of from six months to .wo
years •,. (b) in the case of a second offense, imprisonment of from one
to five j'ears ; (c) in the case of a further repetition, penal servitude
(Zuchthaus) of from five to ten years.
"2. (c) The penalty for desertion committed in the field is imprisonment
of from five to ten years; {b) in the case of a second offense if the
former desertion was not committed in the field, penal servitude of
not less than five years; (c) and, if the desertion was committed in
the field, death.
"3. (a) The penalty of penal .servitude or imprisonment incurred for de-
sertion is, when counnitted by several persons together, upon an
agreement to do so, increased by from one to five years; (b) in case
the act was committed in the field, jjenal servitude, instead of impris-
onment, for the same period; (c) and as against the ringleader and
the person suggesting the offense, death.
"4. (a) The penalty for the desertion of a sentry before the enemy or
from a besieged fortress is death; {b) a deserter wlio goes over to
the enemy also incurs the death penalty.
" (It is remarlced in this connection that no fines are incurred by deser-
tion.)
"Definitions contained in the military penal code based upon the degree
and character of the penalties incurred for desertion under the raried
circumstances above stated. — 1. An act punishable by deprivation of
liberty (not including penal servitude) of not more than five years
is denominated a niilitary misdemeanor.
"2. An act piniishable by death, penal servitude, or deprivation of lil>erty
for more than five ye.-irs is denominated a military crime.
"When prosecution for desertion is barred. — 1. When the offense is a
military misdemeanor as above defined, in fire years.
"2. When the offense is a military crime as above defined prosecution is
barred as follows: (a) In tu'cnty years, if the penalty is deatii or
penal servitude for life; (b) in fifteen years, if dei)rivatioM of liixn-ty
for a longer period than ten years; (e) and in ton years, if (Icpriva-
tion of liberty for a shorter jieriod.
"The ruiniing of the statnt(> l>arring pros(>cution for desertion begins with
the day on which the deserter, if he had not committed the act, would
440 NATIONALITY. [§ 403.
have oonipleted Ills lawful tonii of service, and Is, ns far as pertinent
to the liiuHation of prosecution for desertion, subject to the same
conditions as are hereinlxifore stated under the head of limitation for
violation of military duty.
" When execution of a judgment is barred. — The execution of a judgment
for desertion is barretl as follows :
"1. In thirty years, if the i>enalty adjudged is death, penal servitude for
life, or confinement in a fortress for life.
"2. In twenty years, if penal servitude or confinement in a fortress for
more than ten years.
"3. In fifteen years, if penal servitude of not more than ten years, or con-
finement in a fortress of from five to ten years, or imprisonment of
more than five years.
"4. In ten years, if confinement in a fortress or imprisonment of from two
to five years.
"5. In five years, if confinement in a fortress or imprisonment of not more
than two years.
" It is remarked in conclusion that the German military penal code, from
which the foregoing abstract, as far as it relates to desertion, is
taken, went into effect on Octol)er 1, 1872, and thereby supersetle<l all
other military penal provisions of law affecting material rights, leav-
ing in force only certain forms of procedure existing in individual
states of the Empire." ^
" Mr. [August] Jnnge was born at Celle, in the province of Han-
over, May 28, 18G7, and in 1887 he was taken as a recruit for the
military service. He was permitted to go on leave till November
2, 1887, with orders to report for duty at that time. He did not obey,
but emigrated to America to avoid the service. That he was a de-
serter is not denied or disputed. It has been so frequently and uni-
formly held that the treaty does not protect such deserters against
trial and punishment on their return to Germany, although they have
become naturalized as citizens of the United States, that I have not
thought it advisable, though urged to do so, to intervene to claim im-
munity for him. It is, perhaps, quite unnecessary to make any refer-
ence to cases on this point ; nevertheless I venture to cite Hans Jacob-
son's case (Foreign Relations, 1888, Vol. I., p. 586, Minister Pendle-
ton, and p. 589, Secretary Bayard), in which, under similar circum-
stances, the action of the minister in declining to make application in
the absence of instructions was approved."
Mr. Runyon, amb. to Germany, to Mr. Gresham, Sec. of State, Dec. 20,
18134, For. Rel. 1805, I. 530.
" Junge, lM)rn at Celle on May 28, 18G7, was accepted in 1887 at Ilarburg
by the main recruiting commission (Ersatz Kommlssion), and was
ordered to reix)rt on Novemt)er 1 of the same year. He did not
app<'ar. however, at the date fixetl for him to rei)ort, and the investi-
gations which were instituted showed that he had left for America.
In conse(|uence thereof he was. on September 24. 1887. by sentence
of a military <'ourt. declared a deserter, and in contumaciam legally
senteuced to pay a fine of 200 marks.
§403.] NATURALIZATION NOT EETROACTIVE. 441
" On October 27 last Junge was arrested at IlamlnirR by order of the
military authorities, and was tried by a military court. At the trial
Junge acknowledged that he emigrated to America for the purpose
of permanently escaping the fulfillment of his lawful duty of military
service. His desertion had actually taken place before his emigra-
tion— when he left Hamburg in October, 1887 — and as prosecution
was not barred by limitation, article 2 of the treaty with the United
States of America of February 22, 18G8, is applied to him." (Baron
Rotenhan to Mr. Runyon, Dec. 10, 1804, For. Rel. 180."), I. 5.32.)
"Mr. [Henry] .Tunge contends that the offense of desertion was not coni-
' mittetl prior to his brother's departure from Germany, but consisted
exclusively in the fact of his emigration. . . . The Department
. . . was unable to accept the distinction made by Mr. Henry
Junge." (Mr. Uhl, Acting Sec. of State, to Mr. Runyon, amb. to
Germany, Feb. 26, 1895, For. Rel. 180;j, I. 5.*'.2.)
" In accordance with the direction of yonr instruction (No. 231)
of February 26 last, I have made inquiry whether the statute of lim-
itation was raised or passed upon at the trial of August Junge, and
whether anything could be accomplished by now raisiug tlie point in
behalf of the defendant, and I have the honor to rei)ort that I am
credibly informed that that defense was not presented at the trial.
It further appears that while in such cases as that of Mr. Junge (trial
for desertion) the accused is permitted to defend himself, he is not
allowed to have counsel for his defense. The limitation in the prose-
cution of the offense of deserticm (Fahnenflucht) in such a case as
that of Mr. Junge is five years, and the period of limitation begins
from the time at which the deserter would have finished his term of
military service had the offense not been connnitted, but the law pro-
vides that any action in the case on account of the offense connnitted
taken by the judge against the absent defendant interrupts the run-
ning of the statute (Preussische (iesetz-Sannnlung, vol. 5, pp. 29,
68) : ' Jede Ilandlung des Richters, welche wegen der begangenen
That gegen den Thiiter gerichtet ist, unterbricht die Verjahrung.'
" AVhether such dealing (Ilandlung) with the case by the judge
took place in the present instance I do not know. It is said, however,
that the practice is to keep such claims alive — to prevent the barring
by the statute — by some judicial act from time to time, looking to
the pimishment of the alleged offender. I may add that I do not see
how it could be of any advantage to the accused in this <"ase to raise
the question of limitation diplomatically, he having had an oppor-
tunity of defending himself on the ground of limitation (if it ex-
isted) on his trial.''
Mr. Runyon, amb. to Germany, to Mr. (Jresham. Sec. of State, April 11,
1805, For. Rel. 1805, I. 5^3.
442 NATIONALITY. [§ 404.
3. AUSTBO-nUNGABIAN TbEATY.
§404.
" The information ^ivcn Ix^low is Iwlieved to lie correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
" All male subjects of Austria-Hungary are liable to the perform-
ance of military service between the ages of nineteen and forty-two
years.
" Under the terms of the treaty between the United States and
Austria-Hungary a former subject of that country now a naturalized
citizen of the United States is treated upon his return as a citizen of
the United States. If he violated any of the criminal laws of
Austria-Hungary before the date of emigration he remains liable to
trial and punishment, unless the right to punish has been lost by
lapse of time as provided by law. A naturalized American citizen
formerly a subject of Austria-Hungary may be arrested and pun-
ished under the military laws only in the following cases: (1) If he
was accepted and enrolled as a recruit in the army before the date of
emigration, although he had not been put in service; (2) if he was a
soldier when he emigrated, either in active service or on leave of
absence; (3) if he was summoned by notice or by proclamation before
his emigration to serve in the reserve or militia, and failed to obey
the call; (4) if he emigrated after war had broken out.
"A naturalized American citizen of Austro-Hungarian origin on
arriving in that country should at once show his passport to the
proper authorities; and if, on inquiry, it is found that his name is
on the military rolls, he should request it to be struck off, calling at-
tention to the treaty of September 20, 1870, between this country and
Austria-Hungary."
Circular notice, Department of State, Washington, Feb. 1, 1901, For. Rel.
1901, 7.
Mr. H.iy, Secretary of State, in an instruction to Mr. Herdlislia, cliargfi
at Vienna, December 10, 1900, stated that the Department, in view of
the complaints by naturalized citizens who had received passports
that they were not informed of the limits of the protection which
they would afford, had determined to pursiie a new system, by which
no American citizen of foreign birth should receive a passport without
being acquainted with the pertinent pi'ovisions of the law of the
land of his birth. (For. Ilel. 1901, 7.)
" Naturalization is regarded as a purely domestic act, whereof all
the conditions are controlled by the law of the naturalizing country;
and while in the interest of reciprocal good feeling the United States
has been willing to stipulate by treaty that under certain circum-
stances the act of naturalization here should not protect an Austrian
§ 404.] NATUBAIilZATION NOT RETROACTIVE. 443
naturalized in the United States and voluntarily returning to the
Empire, from the consequences of violating military law, we cannot
admit that any relation in which an alien may stand towards his own
Government should be a bar to naturalization as an American citizen,
if the applicant be within the jurisdiction of the United Stiites and
comply with all the requirements of the statute.
" Sections 1, 2, and 3 of Article II. of the treaty aim to except from
protection by naturalization, in case the naturalized i)ersou return
to his former country, all cases where the offense of evading mili-
tary duty shall be completed by some intentional act of the offender,
committed while yet within Austrian jurisdiction. The hypothetical
case presented does not seem to come wdthin this broad principle."
Mr. Frelinglniysen, Sec. of State, to Mr. Taft, Aug. 25, ISS.*?, ■MS. Inst.
Austria, III. 252.
In the case of Frank Xavier Fisher, a naturalized citizen of Aus-
trian origin, who was arrested and imprisoned in Austria for non-
performance of militarj' duty, the Department of State said that if
Mr. Fisher, as he alleged, emigrated before he had been conscripted,
he was exempt nnder the treaty of September 20, 1870, from prose-
cution for nonfulfillment of military duty.
For. Rel. 1889, 25-27, 35-3<;.
In the case of Ladislao Scdivy, a naturalized citizen of the United
States, born in Bohemia, it was held, in accordance with the third
proviso of the second paragraph of Article II. of the convention be-
tween the United States and Austria of September 20, 18T0, that a
member of the Austrian reserve corps, who, at the time of his emi-
gration, had not been called into active service, was not subject to
trial for violation of the Austrian military law.
The same thing was held by the Austrian (iovernment in the case
of Franz Ilolasek, in which it was held that a person who. as a mem-
ber of the reserve cori)s, remained liable to be called at any lime
into active service, was not guilty of desertion if he emigrated to and
became a citizen of the ITnited States if he had not been actually
summoned for duty.
For. Hel. 1800. (J-13. K5-1S.
S. A., born in Bohemia, Aug. 8, 1871, obtained in 1801, before he
had been enrolled for military duty, a i)ermit to travel, and went to
America, where he was naturalized Dec. 4, 181)(;. Meanwhile, he
was adjudged by the K. K. Kreisels Strafgericht, in Ix'itinerit/. tw
have evaded military duty, and his name was entered on the military
lists as a deserter. The United, States legation at ^^i('I^la |)r('S(Mited
the case to the Austrian (Iovernment, submitting a copy of A.'s cer-
444 NATIONALITY. [§ 404.
tificate of naturali/ation, aiul iv(jU('stin^ that, if the facts should 1h',
found to be as stated, his name mijijht he ivnioved from the list of
deserters, so that he mi^ht enjoy within the Empire the; privileges
of an American citizen. The Austrian (Jovernment replied that, his
le<jal naturalization liaving been fully established, the necessary
steps had been taken to terminate the i)roceedings for evasion of
military duty and to have his name droj)ped from the military lists,
in conformity with the treaty of Sept. 20, 1870.
For. Kel. 1898, 1(V-15.
Referring to the case of Peter Hornik, a naturalized citizen of the
United States, of Hungarian origin, who w^as said to have been noti-
fied by the Austro-IIungarian authorities, on his return to his native
country, to appear for military service, the United States legation at
Vienna reported : " It would seem that Mr. Hornik was in no way
detained or molested contrary to his rights as an American citizen,
but that the summons sent to him was merely the usual demand made
in this country of all returning emigrants to prove their freedom
from liability to j)erform military service. This demand was met
satisfactorily in the case of Mr. Hornik by the exhibition of his
naturalization certificate, which established his American citizen-
ship."
Mr. Towor, niin. to Aiistria-IInngaiy, to Mr. Sherman, Sec. of State.
Feb. 11, 1808. For. Rol. 1898, irj, 10. See, also, tlie case of Ilerinan
Meller, reported in Mr. Tower, min. to Austria-Hungary, to Mr. Day,
Sec. of State, July 1, 1898, For. Rel. 1898, 2S-29.
" The questions raised in this case appear to be pretty thoroughly
covered by the case of Ladislao Sedivy, the correspondence concern-
ing which is printed in Foreign Relations for 1896, pages 6 et seq.,
which was made a test case by your predecessor, Mr. Tripp. The
position taken by Mr. Tripj) was that a returning American citizen
of Austro-Huiigarian birth can not be punished for a crime committed
by act of emigration ?jut (mly for an offense committed before emi-
(jratlon^ and that in all cases when the memher of the reserve corps
emigrated before receiimig a cull into active service he was guilty of
no crime against the military laws of Austria- 11 angary and was not
siihjcct to arrest upon his return nor to punishment as a deserter.
This j)osition was conceded by the Austrian authorities."
Mr. Hay. Sec. of State, to Mr. Harris, miu. to Austria-Hungary, May 10.
19(K), For. Itel. 1000, .-JO. 31.
" On several i)revious occasions the attention of Congress has been di-
rected to the questions arising with Austria-Hungary growing out of
arrests of retiu'uing naturalized citizens on tlie ground of unful-
filled military service accruing before they acquired our nationalitj'.
The progress steadily made toward their settlement has been most
§§405.400.] NATURALIZATION NOT RETROACTIVE. 445
satisfactory, and the published correspondence will show the dis-
posal of a residual issue touching the treaty exemption of such citi-
zens from liability for constructive offence in the act of emigration
itself, while the understanding of the two Governments as to the
class and scope of punishable acts conunitted by such persons prior
to emigration has become more precise. In conse<iuence, arrests on
this score have become infrequent in Austria-Hungary, and release
promptly follows the representations of our agents in all wortliy
cases." (Report of Mr. Olney, Sec. of State, to the President,
Dec. 7, 1890, For. Rel. 189G, Ixiii.)
4. Belgian Treaty,
§ 405.
" The information given below is l)elicved to be correct, yet it is
not to be considered as official, as it relates to the laws and regula-
tions of a foreign country.
" Every male Belgian must register during the calendar year in
which he reaches the age of 19 years to take part in the drawing of
lots for the raising of tliB necessary military contingent.
" Anyone Avho has drawn a number which designates him for mili-
tary service, or in case of his absence has had a number drawn for
him by the proper authority, is punishable if he does not answer the
call for service.
" Under the terms of the convention between the United States and
Belgium a Belgian naturalized as a citizen of the United States is
considered by Belgium as a citizen of the Ignited States; but upon
return to Belgium he may be prosecuted for crime or misdemeanor
committed bafore naturalization, saving such limitations as are estab-
lished by the laws of Belgium.
" A naturalized American formerly a Belgian, who has resided five
years in this country, can not be held to military service in Belgium
or to incidental obligation resulting therefrom, in the event of his
return, excej>t in cases of desertion from organized or embodied mili-
tary or naval service."
Circular Notice, Department of State, Feb. 5, 1001, For. Ilel. 1001. 10.
5. Danish Tkeaty.
S 4or..
" The information given below is believed to be correct, yet it is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
"Military service becomes compulsory to a subject of DiMiiiiark
during the calendar year in which he I'eaches the ag(> of ±2 ycais.
'* In November or December of the year in which he becomes 17
years old he is expected to report for enrollment on the conscript
446 NATIONALITY. [§ 406.
tioii lists. If lie no^lects to do so he may l)e fined from 2 to 40
kroner; but if his neglect arises from a design to evade service he
may be imprisoned.
" In case he fails to a{)pear when t\w law reqtiires that he Ijc
assigned to military duty he is liable to imi)risonment.
" When one whose name has been or should have been entered on
the conscription lists emigrates without rej)orting his intended de-
parture to the local authorities he is liable to a fine of from 25 to 100
kroner.
" A person above the age of 22 years entered for military service
must obtain a permit from the minister of justice to emigrate. Non-
compliance with this regulation is punishable by a fine of from 20 to
200 kroner.
" The treaty of naturalization between the United States and Den-
mark provides that a former subject of Denmark naturalized in the
United States shall, upon his return to Denmark, be treated as a citi-
zen of the United States ; but he is not thereby exempted from penal-
ties for offenses committed against Danish law before his emigi-a-
tion. If he renews his residence in Denmark with intent to remain,
he is held to have renounced his American citizenship.
" A naturalized American, formerly a Danish subject, is not liable
to perform military service on his return to Denmark, unless at the
time of emigration he was in the army and deserted, or, being 22
years old at least, had been enrolled for duty and notified to report
and failed to do so. He is not liable for service wdiich he was not
actually called upon to perform."
Circular Notice, Department of State, April 10, 1901, For. Rel. 1901,
139-140.
See Mr. Day, Assi§5t. Sec. of State, to Mr. Haskell, Nov. 13, 1897, 222 MS.
Dom. Let. 371 ; Mr. Swenson, min. to Denmark, to Mr. Jensen, Feb.
18, 1901, For. Rel. 1901, 135.
S. was born in Denmark in 1800. At the age of 17 he emigrated
to the United States, after having notified the proper authorities as
required. His name was not, however, stricken from the military
rolls. He was naturalized in the United States in 1895, and in 1897
returned to Denmark, where he purchased a piece of j)roperty which
he exchanged in the following year for another piece of proi)erty.
In September, 1899, he went back to the United States for the pur-
pose, as it was alleged, of selling some property which he owned
there. In September, 1900, he again returned to Denmark, where he
was summoned to perform military duty. The Danish Government
maintained that, as he had been " domiciled in Denmark more than
two years," had become a " pi-oprietor," and had made his living
there, " both as agriculturist and as keeper of a temperance hotel,"
§407.] NATURALIZATION NOT RETROACTIVE. 447
his summons to do military duty was in conformity with article 3 of
the treaty of July 20, 1872. It was held by the Government of the
United States that the facts recited " would seem to throw upon Mr.
Scirensen the onus of showing that his acts, as recited in the note, do
not evince an intention on his part to acquire a permanent domicil
in Jutland."
Mr. Hay, Sec. of State, to Mr. Swensou, miu. to Denmark, April 12, 1901,
For. Rel. 1901, 130-139.
N. was born in Denmark, January 21, 1867. In September, 1880,
he appeared for examination for military duty and was assigned to
duty in the infantry. He then went to America. He stated that
before doing so he wrote to the minister of war for leave, but he
had not received it when he departed. He thus appeared to have
violated the military law and to be liable to punishment as a deserter;
but it seems that " in other cases of a similar character, when the
returning visitor produced a passport from the United States, show-
ing him to be a citizen of that countr}^, the Danish Government
refrained from exacting military duty or inflicting punishment for
desertion."
Mr. Risley, min. to Denmark, to Mr. Sherman, Sec. of State, Oct. 14, 1897,
For. Rel. 1897, 120.
6. Treaty with Sweden and Norway.
§ 407.
" The information given below is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign coiuitry.
" Subjects of Sweden are liable to performance of military duty in
and after the calendar year in which they reach their twenty-first
year.
" Under the treaty between the TTnited States and Sweden and
Norway, a naturalized citizen of the United States, fornicrly a sub-
ject of Sweden, is recognized as an American citizen u]>()n his return
to the country of his origin. He is liable, however, to jMinishnient
for an offense against the laws of Sweden committed before his emi-
gration, saving always the limitations and remissions establisluMl by
those laws. Emigration itself is not an offense, but nonfulliliment
of military duty and desertion from a military force or sliip ai-e
offenses.
"A naturalized American wlio performed his military service or
emigrated when he was not liable to it. and who infracted no laws
before emigrating, may safely return to Sweden.
448 NATIONALITY. [§ 408.
" If he renews his residence in the Kingdom without intent to
return to America, he is hekl to have renounced his American citi-
zenship, and he will be liable to perform military duty."
Circular Notice, Department of State, Wasliington, Feb. 0, 1901, For. Rel.
1901, 48(j.
A similar notice was issued with regard to Norway, with the following
exceptions :
" Subjects of Norway are liable to performance of military duty in and
after tlie calendar year in which they reach their twenty-second
year. . . .
" He [a naturalized American citizen returning to Norway] must, how-
ever, rci)ort to the conscrii)tion officers, and, on receiving a summons,
present Iiiniself at the meetings of the conscripts in order to prove
his American citizensliip.
" If he has i*emained as long as two years in Norway, he is ol)liged, with-
out being summoned, to present liimself for enrollment at the first
session, since he is then deemed by Norway to have renounced his
American citizenship.
" If he ren<>ws his residence in tlie Kingdom without intent to return to
America, he is held to have renounced his American citizenship."
A naturalized citizen of the United States of Norwegian origin,
having been arrested and held for military service on his return to
his native country, sought to make a claim for compensation. It
appearing that his arrest and detention were due to " resistance to,
and delay in complying with, the reasonable requirement to prove
his American citizenship before the competent authority," it was
held that the case did not present a proper ground for intervention.
Mr. Hay, Sec. of State, to Mr. Thomas, min. to Sweden and Norway,
Jan. 16, 1902, For. Kel. 1901, 494.
VII. NATIONALITY OF MARRIED WOMEN.
1. Marriage of American Women to Aliens.
(1) effect on status.
§ 408.
A woman who was born in South Carolina and resided with her
father, a citizen of that State, in Charleston, at the time of the Dec-
laration of Independence and afterwards, till 1781, when she was
married to a British officer, with whom she went to England in 1872,
where she remained till her death in 1801,' was held to be an alien.
The opinion of the court was not that she ceased to l)e a citizen simply
by her marriage to an alien, but that her withdrawal with her hus-
band, and her permanent adherence to the side of the enemies of the
State down to and at the time of the treaty of peace (1783), operated
§408.] MAERIED WOMEN. 449;
as a virtual dissolution of her allegiance by an election which h»;r
coverture did not prevent her from making.
Shanks v. Dui)ont, 3 Pet. 242.
It has been held that an American woman who marries an alien in the
United States, and lives there with him till his deatli. is not an alien.
(Comitis V. Parkerson, 50 Fed. Rep. 55G. Contra, Petiaignot v.
Detroit, 10 Fed. Kep. 211.)
A native American woman was married in the United States
in 1828 to a Spanish subject. Three years later
she removed with her husband to Spain, taking with
her an infant daughter, who also was American born. The family
was still residing in Spain Avhen, in 1858, the husband died. The
American legation at Madrid subsequently raised the question
whether the widow and her daughter might be regarded as citizens
of the United* States. Attorney-General Bates, to whom the ques-
tion was referred, advised (1) that the lady did not, by marrying a
Spanish subject in the United States, lose her American citizenship;
(2) that the daughter born in the United States was an American
citizen by, birth; (3) that their removal to Spain and residence in
that country constituted, under the circumstances, no evidence of an
attempt on their part to cast off their native allegiance and adopt a
new sovereign; and (4) that they both were American citizens.
Bates, At.-Gen., Aug. 0, 1802, 10 Op. 321 ; case of Mrs. Preto, nee (Jrittith,
and her daughter. See, however, Kircher v. Murray, 54 Fed. Itep.
617.
By section 116, of the internal-revenue act of 1804. 13 Stat. 281,
" citizens of the United States residing abroad " were
Madame Berthe- y^bject to an income tax. A question arose as to
my 8 Case. whether this phrase applied to ]Madanie Rerthemy.
Her father was a citizen of the United States, but she was born in
France and married there a French subject, and after his deatli she
continued to live in France, where, as it was stated, she had always
l)een domiciled. Attorney-General Stanbery. to whom the case was
referred, observed that the act of February 10. ISr),"), had the effect of
naturalizing all persons born abroad before its passage whose fathers
were, at the time of their birth, citizens of the United States. Had
Madame Berthemy acquired the rights of a Frencii subject ? In this
relation, the Attorney-General observed that by the French Civil Code,
Book I., chap. 1, art. 9, a person born in France of foreign parents
acquired the quality of a Frenchman, not by the mere fact of l)irth on
French soil, but only on complying with certain conditions (hiring
the year following the attainment of majority: but that, as it <li(l
not appear whether Madame Berthemy acquired French citizenship
H. Doc. 551— vol 3 29
450 NATIONALITY. [§ 408.
under this provision, the question of her national character depended
upon the effect of her French marriage. In this relation, the French
Civil Code, said the Attorney-General, provided (Book I., chap. 1,
art. 12) that a foreign woman who married a Frenchman should fol-
low the condition of her husband. Madame Berthemy therefore had
a good title by marriage to citizenship of France, and was to he
treated as a French citizen, and not as a citizen of the United States.
Stanbery, At-Gen., Aug. 13, 18G6, 12 Op. 7.
The Attorney-General remarked that a provision similar to that in the
French code, respecting the marriage of alien women with French-
men, was contained in the statute of 1855, which was substantially
like the English statute of 7 & 8 Vict. sec. 16. lie also remarked
that it was unnecessary to advert to the question whether a person,
formerly a citizen of the United States, who had acquired a nevv
nationality abroad, might by domiciliai*y residence in the Unitfid
States become reinvested with the quality of an American citizen,
since there was nothing to show that Madame Berthemy had in
that way exhibited a desire and intention to assume the duties and
obligations of an American citizen.
By section 13 of the internal-revenue act of 1867, 14 Stat. 477,
amending section 116 of the act of 1864, citizens of the United States
residing abroad continued to be subject to an income tax. In Sep-
tember, 1868, the Secretary of the Treasury submitted to Attorney-
General Hoar the question whether an "American woman born in
the United States, residing in France, and married there to a citi-
zen of France, is, by reason of such marriage, to be regarded as hav-
ing lost her American citizenship." The Attorney-General held
that the opinion given in the case of Madame Berthemy was " di-
rectly in point," since it decided " that a woman, a citizen of the
United States, domiciled in France and marrying there a citizen of
France," was not a citizen of the United States within the meaning
of the words in the revenue act. The Attorney-General added that
he did not propose to express any opinion " whether a woman who
is by birth a citizen of the United States, and by marriage has
become a citizen of France, is not after such a marriage a citizen of
the United States in a qualified sense." In view of the fact that the
laws of the United States had, as he said, " adopted the policy of
permitting women to acquire citizenshij) by marriage," he pre-
ferred to adhere to the conclusion reached by Mr. Stanbery.
Hoar, At.-Gen., July 12, 1869, 13 Op. 128.
Mr. Fish, February 24, 1871, after observing that by the law of
England and the United States an alien woman, on
Opinions of Secre- r -.i i • ^ -i- j i
t ■ f St t ^^ marriage with a subject or citizen, merged her
nationality in that of her liusband, said : " But the
converse has never been established as the law of the United States,
§ 408.] MABRIED WOMEN. 451
and only by the act of Parliament of May 12, 1870, did it become
British law that an English woman lost her quality of a British sub-
ject by marrying an alien. The Continental codes, on the other hand,
enable a woman whose nationality of origin has been changed by
marriage to resume it when she becomes a widow, on the condition,
however, of her returning to the country of her origin. The widow
to whom you refer may, as a matter of strict law, remain a citizen,
but as a citizen has no absolute right to a passport, and as the law of
the United States has outside of their jurisdiction only such force
as foreign nations may choose to accord it in their own territory, I
think it judicious to withhold passports in such cases unless the
widow gives evidence of her intention to resume her residence in the
United States,"
Mr, Fish, Sec. of State, to Mr. Washburne, miii. to France, No. 238, Feb.
24, 1871.
Cited with approval in Mr. Bayard, Sec. of State, to Mr. Hall, niln. to
Central America, Jan. G, 1887, For. Uel. 1887, 92. Mr. Rayard said :
" I am not disposed to depart from this precedent which may be
readily reconciled with the opinion of Attorneys-(J(>neral Bates (10
Op. 821), Stanbery (12 Op. 7), and Hoar (13 Op. 128)."
The case before Mr. Bayard was us follows : A native American woman
was married in Jamaica in 18G9 to a Spanish subject. Tliey
, subsequently removed to Chile, where her two children, who were
still minors, were born. In 1870 the family went to Salvador, where
the husband died in 1883. At the time of liis death lie had a
claim against the Government of Salvador, which liis widow after-
wards endeavored to prosecute through tlie Spanish legation, i)ut
without success. She then invoked the aid of the legation of the
United States, on the ground that, when her lmsl)and died, iier
original citizenship reverted. Mr. Hall, the American minister in
Central America, in reporting tlie case. oI)served that it diffennl
from that decided by Attorney (Jeneral Bates, ftiiitni. in that the
marriage was not performed in tlie United States ; and lie had there-
fore informed the lady that she and her childn'ii foUowinl the
nationality of lier liusl)and. Mr. Bayard said: "Under tiiese cir-
cumstances I must hold that Mrs. Araiia as long as slie remains
without the jurisdiction of tliis (Jovormnent is not eiititl«»d to the
privileges of a citizen of tlie Unite<l States, so far at least as would
entitle her to diplomatic interi>ositioii on lier behalf against the (iov-
ernment of Salvador on a claim accruing since iier marriage and
dei)arture from the United States." (For. Kel. 1S,S7, 02.)
"Although the marriage of a female citizen of tlie United States with a
foreigner should make her a citizen of the country to which her hus-
band belongs, it does not necessarily follow (as was said in my in-
• struction No. 238 to .Mr. Washburne. refeiTed to in your (Hspal<h)
that she becomes subject to all the disabilitit's of .iliciiagc. sii.h for
instance, as inability to inherit or to transfer real !>ro|'«Mty. In
approving of Mr. Washburne's n'fusal to grant a passport in tlie e.'se
then under consideration. I intended not to be held, by inference, to
an opinion beyond what 1 expressed, or njton (inesiions not necessary
452 NATIONALITY. [§ 408.
to :i (l(>«-isi<m of tlu> rusv presented." (Mr. Flsli. See. of State, to
Mr. Williamsou, Sept. 22, 1875, MS. Inst. Costii Uiea, XVII. 2G6.)
" I have to ijiform you of the receipt of your despatch of the 11th
instaut, No. 25, submitting for in.structions the question whetlier the
widows of Spanish subjects, who, previous to their marriage, were
citizens of the United States, are entitled to Ix; registered as such in
the consulate-general and to receive the protection accorded to such
citizens.
" In reply I have to say that the law touching the status of a fe-
male citizen of the United States who marries a Spanish subject was
examined at length in dispatch No. 70, of November 24, 1869, ad-
dres.sed to Mr. Plumb, then consul-general, and to which you are
referred as representing the views now held by this Government. In
the closing paragraph of that dispatch, and in review of its previous
statements, the Assistant Secretary says: ' The Americaji female citi-
zen, when within the United States, must, in virtue of statutes oper-
ative within that jurisdiction and not elsewhere, be deemed a citizen
although, by marrying a foreign subject, she had, while under the
dominion of the foreign law, made herself for all purposes a subject
of the country to which her husband owed allegiance. But, while
remaining in the foreign country, we can only regard her as having
voluntarily exercised the right of expatriation for which the exec-
utive and legislative departments of our Government have stren-
uously contended, and which was sanctioned by the law of her actual
domicil.'
" In the light of the decision above given, and as affording a reply
to your inquiry, it is apprehended that, so long as the widow of a
Spanish subject shall remain in the Spanish territory after the death
of her husband, she continues iji the relation to its Government that
was contracted by her marriage; and if she shall return to such ter-
ritory, after an absence in the United States, with the intention of
still maintaining her domicil there, that relation is conceived still
to remain, even though she may have provided herself with a pass-
port by virtue of her birth in the United States.
" In case, however, she shall have fixed her residence in the United
States since the death of her husband and .shall return within Span-
ish jurisdiction, without the intention to abandon that residence or
to remain longer than the objects of a temporary sojourn may re-
quire, she is not deemed to lose thereby the right to the protection
which she has acquired by resuming her previous relations to the
Government of the United States. In such case no sufficient objec-
tion appears to her being registered as a citizen in the consulate-
general."
§ 408.] MARRIED WOMEN. 453
Mr. Hunter, Second Assist. Sec. of State, to Gen. Torl)ert, consul-general
at Havana, No. 25, Jan. 31, 1ST2, (J4 MS. Desp. to Consuls, 20.
A woman, originally a citizen of the United States, who stated
that she was married to a Mexican citizen, domiciled in Mexico, com-
plained to the Government of the United States of wrongs resnlting
from her husband's desertion and neglect. The Department of State
replied that, under the circumstances, and so far as regarded the
rights which she had acquired under her marriage contract, she had
by her marriage become, in contemplation of Mexican law, a citizen
of that Republic ; and that all questions concerning the assertion of
such rights were therefore governed by the laws of that country,
with the administration of which laws it was not the j^rovince of the
United States to interfere.
Mr. Fish, Sec. of State, to Mrs. Negrete, Oct. 28, 1S74, 105 MS. Dom. Let.
17 ; Mr. Fish, Sec. of State, to Mrs. Wallace, Oct. 28, 1874, ui. 25.
That a woman partakes of her husband's nationality, see, also, Mr. Fish,
Sec. of State, to Mr. Perez, March 18, 1870, MS. Notes to Nicaragua,
II. 13.
While, by the law of the United States, an alien woman on her
marriage with a citizen merges her nationality in that of her hus-
band, it never has been " incontrovertibly established " as the la.v of
the United States that an American wonuin by marriage with an
alien loses the quality of an American citizen.
Mr. Fish, Sec. of State, to Mr. Rublee. No. 210, April 11, 1870, MS. Inst.
Switzerland, I. 382.
"As the statutes of the United States make no provision for the
expatriation of a female citizen " by her " marriage with an alien, it
is possible that it may be held that " a woman in such a position " has
a double nationality, so far at least as rights of property may be
affected. On this point T can express no opinion."
Mr. Frelinghuysen, Sec. of State, to Count Lewenhaupt. Swedish min.
April 10. 1882, MS. Notes to Sw. & Nor. VII. 230. See infra, p. 4,55.
An American woman, married to a British subject, who had a
" commercial domicil " in Mexico, complained of injuries to his
property, in which she claimed an interest. It was held that, as '' a
woman who marries a foreigner takes by that act the nationality
of her husband," and as the property was in Mexico, under the
control of the husband, who, although he afterwards became a citizen
of the United States, was, at the time when the injuries were inflicted,
" an alien and not entitled to the i)rotection of the United States,"
there was no ground for intervention.
Mr. Frelinghuysen. Sec. of State, to Mrs. Walsh. .Tan. 31. 1SS4. 149 MS.
Dom. Let 541.
454 NATIONALITY. [§400.
That a wifo's political status follows that of her hnshand. soe Mr. Fre-
liujjhuyst'U, Siv. of State, to Mr. Lawrence, .March .".l, IS-SJ, UC. MS.
Doiu. Let 287; to Mr. Foster, April 2, 188:5, 140 MS. Doin. I^t. 311.
" The view has been taken by this Department in several cases that
the marriage of an American woman to a foreigner does not com-
pletelj^ divest her of her orif^inal nationality. Her citizensliip is
held for most purposes to be in abeyance during coverture, but to be
susceptible of revival by her return to the jurisdiction and allegiance
of the United States."
Mr. Blaine, Sec. of State, to Mr. Phelps, niin. to Germany, Feh. 1, 1890,
For. Rel. 1890, 301.
See, to the same effect, Mr. Evarts, Sec. of State, to Mrs. Wood, Sept. 24,
1880, 134 MS. Dom. Let. 455.
An application was made to the Department of State for a pass-
port for an American woman, who, though married to a British sub-
ject, desired, it was said, to retain her American citizenship and to
reside in New York. The Department declined to grant the appli-
cation, on the ground that, under British law and the naturalization
treaty between the United States arid Great Britain of May 13, 1870,
the woman in question was a British subject. It was added, however,
that this decision did not imply any opinion as to her status, " so far
as her property and local rights may be concerned,' imder the law of
the State of her residence. That is a question determinable by a
court having appropriate jurisdiction."
Mr. Day, Assist. Sec. of State, to Mr. Robertson, Oct. 21, 1807, 221 MS.
Dom. Let. 584.
It is the practice of the Department of State to decline to issue passix)rts
to the American-born wives of foreigners who continue to reside in
the Unite<l States after marriage. (Mr. Adee, Second Assist. Sec.
of State, to Mr. Wildman, consul at Hongkong, No. 30, March 24, 1898,
161 MS. Inst. Consuls, 7.)
A pei*son who inquired " whether the British Government would recog-
nize the naturalization papers of a former British subject, an English
woman, who was naturalized in the United States without the con-
sent of her husband," was advised to consult private counsel learned
in the law of Great Britain. (Mr. Adee, Acting Sec. of State, to Mrs.
Clark, Oct. 3, 189G, 213 MS. Dom. Let. 77.)
(2) REVERSION OF NATION ALITT.
§ 409.
An application for the interposition of the United States was made
l)y a woman who represented that she was an American citizen by
birth and tlie widow of a Turkish subject. The application w^as
dated at Constantinople, and its tenor indicated that the applicant's
§ 409.] MARRIED WOMEN. 455
" marital domicil was in Turkey." Supposing this to be the case, the
Department of State had " no hesitation in saying " that, so long as
she remained in Turkey, she could not, unless for the purpose of
enabling her to return to the United States, obtain the Department's
interposition. By marrying a Turkish subject and taking up her
residence in Turkey, she became, said the Department, a Turkish sub-
ject, and to recover her American nationality " must leave Turkey and
take up an American residence."
Mr. Bayard, Sec. of State, to Mrs. Lografo, Feb. G, 188G, 158 MS. Dom.
Let. 094.
The fact that an American-lx)rn woman married to a Chinese subject
is residing in a country in which the United States has extraterri-
toriality does not afford lier any basis for asserting her American
citizenship. (Mr. Adee, Second Assist. Sec. of State, to Mr. Wildman,
No. 30, March 24, 1898, IGl MS. Inst, to Consuls, 7.)
A quotation has been made from a note of Mr. Frelinghuysen to
the minister of Sweden and Norway (supra, p. 453). The woman
therein referred to was afterwards divorced from her husband, a
Swede, by the Swedish courts, on account of her insanity, and was
placed by her mother, an American citizen, by whom she was sup-
ported, in an asylum in Austria. From this" asylum she was in 188S,
against the protest of her mother, removed by a person acting as her
guardian under Swedish law to an asylum in Sweden, Her mother
sought to regain her custody, as her '' only rightful and natural guar-
dian;" and to this end resorted to the Swedish courts, and also
invoked the good offices of the United States. The Department of
State gave the following instructions: "As Madam de B was
divorced from her husband upon his application it is thought that
such good offices can properly be employed in her behalf as a person
whose original American nationality has reverted to her,"
Mr. Bayard, Sec. of State, to Mr. Magee, niin. to Sw. «& Norway. No. 127,
Feb. 15, 1889, MS. Inst. Sw. & Nor. XN'. 19G. See. also, Mr. Bayard,
Sec. of State, to Mr. Magee, tel., Feb. 2.3, 1889, id. 199.
See, however, I'equignot v. Detroit, 10 Fetl. Uep. 211.
An American woman was married to a Russian subject. Four
years after his death, while she was residing in France, the interven-
tion of the United States in her behalf was invoked in respect of pro-
ceedings which, it was alleged, Avere about to be instituted to connnit
her to an insane asylum. As it did not appear that she had exercised
her "possible right" of reversion to her original citizen'^hij). which.
if it existed, could be effectively asserted " by returning to and
dwelling in the country of her maiden allegiancv." it was held that
the United States could not officially intervene in her l)<>half.
Mr. Day, Assist. Sec. of State, to Mr. Cpdogran'. .Tan. 27, 1S9S. 225 MS.
Dom, Let, 24,
450 NATIONALITY. [g 410.
By n joint resolution ai)provo(l May IH, 18i)8, ivcitinjr tliat Nellie
Grant Sartoris, widow, (Lm^hter of (Jen. U. S. (jrant, and a natural-
bom citizen of the United States, had married in 1874 a British sub-
ject, thereby becoming;, under the laws of (xreat Britain, a naturalized
Ba-itish subject, recognized as such by the United States under the
naturalization convention of May 13, 1870, it was declared that Mrs.
Sartoris was, " on her own ap])lication, unconditionally readmitted
to the character and privileges of a citizen of the United States," in
accordance with Art. III. of that convention.
30 Stat. 1496.
A woman, a citizen of the United States, was married to a Dutch
subject, from whom she was subsequently divorced. After the divorce
she resumed her domicil in the United States. It was held that she
was entitled to a passport as an American citizen.
Mr. Hay, Sec. of State, to Mr. Leishmau, rain, to Switzerland, No. IGO,
March IG, 1899, MS. Inst. Switz. III. 20G.
2. Mabbiage of Alien Women to Americans.
(1) american law.
§ 410.
"Any woman who is now or may hereafter be married to a citizen
of the United States, and who might herself be lawfully naturalized,
shall be deemed a citizen."
Rev. Stat, §1994; act of Feb. 10, 1855, chap. 71, §2, 10 Stat. 004;
Wallver v. Potomac Ferry Co., .S McArthur, 440; Belcher r. Farren.
89 Cal. 73; Dorsey v. Brigham, 177 111. 250, 52 N. E. .30.3; I^eonard r.
Grant, G Sawyer C. C. G03.
As to the law prior to the act of 1855, see Shanks r. Dupont, 3 Pet. 242 ;
Beck V. McGillis, 9 Barb. (N. Y.) 35; White v. White, 2 Met. (Ky.)
185.
The act applies to a woman married to an alien who subsequently be-
comes naturalized. (Kelly v. Owen, 7 Wall. 49G; Headman v. Rose,
G3 Ga. 458; Burton v. Burton, 1 Keyes, 3,59.)
The phra.se, "might herself be lawfully naturalized," refers to class or
race, and not to the qualifications of character, residence, etc. (Leon-
ard V. Grant, G Sawyer C. C. G03 ; Kelly v. Owen, 7 Wall. 49<".. See
Burton v. Burton, 1 Keyes, 3.59; Pequignot v. Detroit, IG Fetl. Rep.
211, 215.) Since the act of July 14, 1870, rendering per.sons of the
African race capable of naturalization, women of African blood have
been within the operation of the statute. (Broadis v. Broadis, 8G
Fed. Rep. 951.)
The statute applies to a woman married to a citizen of the United States.
irresi)ective of the time or place of marriage or the residence of the
parties (Kelly v. Owen, 7 Wall. 49G; United States v. Kellar. 11 Biss.
314; Williams, At.-Geu., 1874, 14 Op. 402) ; even though the woman
§ 410.] MARRIED WOMEN. 457
lived at a distanco from Iior husband and novor came to tlio T'nited
States till after his death. (Kane v. McCartliy. (^5 N. C. 21)0; Head-
man V. Rose, (53 Ga. 458. See Burton /•. Burton, 1 Keyes, 35'.), 3(52,
36G; Pequiguot v. l>etroit, 10 Fed. Kep. 211, 215.) But it has l)een
held thiit a native woman who married an alien in the T^nited States,
and livetl with him there till his death, did not eonversely i)ecome an
alien. (Comitis r. I'arkerson, 50 Fed. Rep. 550.) In an enrlier oase.
however, it was held that a woman, an alien by birth, who lived in
the Fnited States, and who, after the death of her husband, a citizen
of the United States, married a subject of her native country, re-
sumed her original nationality. (I'equignot v. Detroit, 16 Fed. Rep.
211. Contra, Phillips. Solic. General, 1ST7, 15 Op. 500.)
That a divorced woman continues to lie a subject of the state of which
her husband was a subject, still she, by some act, changes her nation-
ality, seems to be tacitly assumed in I'equignot r. Detroit, 10 Fed.
Rep. 211.
" Inasmuch as the subject of naturalization is within the exchisive
jurisdiction of Congress, there woukl seem to be little question that
such a marriage [one in conformity with the act of June 22, 1800]
would be effectual for the purpose of naturalizing an alien female
married to a citizen of the United States."
Mr. Fish, Sec. of State, to Mr. Bancroft, .Tune 7, 1870, MS. Inst. Pi'ussia,
XV. 126.
Under the act of February 10, 1855, an alien Avoman, upon her mar-
riage to an American citizen, acquires the right to be regarded by the
authorities of the United States as an American citizen '' in every
country except that to which she owed allegiance at the time of her
marriage." It may be, however, that by the law of such country she
is regarded as becoming by her marriage a foreigner. In such case
no conflict of law could arise, since the government of her original
allegiance would concede her full American citizenship.
Mr. Fish, Sec. of State, to Mr. Jewell, niin. to Itussia. .Tune !), 1874, II. Ex.
Doc. 470, 51 Cong. 1 sess. 24, quoted infra, § 412.
T\Tiere a woman, a native of Santo Domingo, who had been married
to a consul of the United States in that country, but who, after his
death, continued to reside there, invoked the interposition of the
United States in respect of depredations on her property, whiclt were
alleged to have been permitted by the authorities of the island, it was
held that, while the United States " does regard the naturalization of
a foreigner by reason of her marriage to an American citizen to be
valid, yet at the same time something more than a mere marriage
solemnization is required to establish good citizenship, such, for in-
stance, as a domicil of some considerable duration in this country; "
and that, as the complainant was a native of Santo Domingo, was mar-
ried there, and had lived there since her husband's death, and as her
458 NATIONALITY. [§411.
property interests seemed to be " centered in that quarter," and the
evils of which she coniphiined appeared to be '* of a purely jiulicial
nature," it was not thought that it would be " either efficacious or
proper " to interfere in the matter.
Mr. Evarts, Sec. of State, to Mi-s. Marcotl de la Rodia, June 21, 1879, 128
MS. Dom. Let. 54.'").
It was suggested, but not decided, on a passport application, that tho same
princii)le niiglit ai)i)ly to the case of the foreign-born widow of an
American citizen, who, after her husband's death, resided in a third
country, and who had never lived in the United States. The passport
was, however, refused on anoUier ground, namely, that the husband,
who was a naturalized citizen of the United States, had before his
death abandoned his American for a European domicll. (Mr. Sher-
man, Sec. of State, to Mr. Breckinridge, min. to Russia, No. 879,
March 15, 1897, MS. Inst. Russia, XVII. 5.')1.)
The Government of the United States can not recognize the right of the
original Government of an alien-born woman, who was married to a
naturalized citizen of the United States, but who has been divorcetl
from him, to Intervene in her behalf, so long as she voluntarily con-
tinues to make the United States her home. (Mr. Adee, Second
Assist. Sec. of State, to Mr. Knagenhjelm, Aug. 21, 1895, MS. Notes
to Sw. & Norway, VII. .591.)
The American minister at Peking having instructed the American
vice-consul at Hankow that Chinese and Japanese women, married to
citizens of the United States, form an exception to the rule that the
citizenship of the husband determines that of tlie wife, on the ground
that Chinese and Japanese are not capable of naturalization in the
United States and that women of those races therefore do not fall
within sec. 1994 R. S., his views were approved.
Mr. Hay, Sec. of State, to Mr. Conger, min. to China, No. 022, Feb. 5,
1903, For. Rel. 1903, 45, citing Kelly v. Owen, 7 Wall. 49<3, and Burton
V. Burton, 40 N. Y. 373.
See Mr. Conger to Mr. Cameron, Dec. 11, 1902, For. Rel. 1903, 44, citing
5 Sawyer, 155 ; G Sawyer, 541 ; Fong Yue Ting v. United States, 149
U. S. 710 ; In re Gee Hop, 71 Fed. Rep. 274.
(2) BEVERSION OF NATIONALITY.
§ 411.
J., the widow of an American citizen, residing in Nicaragua,
claimed exemption, on the ground of her American citizenship, from
a forced loan. She was a native of Nicaragua. Held, that while
she acquired by her marriage the nationality of her husband by virtue
of section 1994, Revised Statutes, yet, being a native of Nicaragua
and continuing to reside in the country of her origin, there was room
for the contention that she had resumed her original nationality;
and that, as she had not since her husband's death manifested any
§411.] MARRIED WOMEN. 459
intention of coming to the United States, it was not the duty of the
Government to intervene to secure her immunity from obligations
imposed upon her l)y the country of her birth and continued domicil.
Mr. Gresham, Sec. of State, to Mr. Baker, luiii. to Nicaragua, Jan. 24,
3894, For. Kel. 1804, 400.
" I have received your letter of October 21st, complaining of a law
recently promulgated in Nicaragua, by virtue of which a native Nica-
raguan woman, who, having married an alien, continues to reside in
Nicaragua after his death, recovers her Nicaraguan nationality.
"As the courts of the United States have decided that an American-
born woman who marries a foreigner and subsequently becomes a
widow, still residing here, remains a citizen of the United States, we
can not object to Nicaragua declaring by law a similar rule in respect
to a native of Nicaragua."
Mr. Ulil, Act. Sec. of State, to Mr. Flint, Dec. 11, 1894, 199 MS. Dom.
Let. 034.
This evidently refers to the decision in Comitis v. Parkerson, SC* Fed. Rep.
550. See, contra, Pequignot v. Detroit, 10 P'ed. Kep. 211.
" By her marriage to a citizen of the United States Mrs. Constan-
tino became vested with his I'ights as a citizen of the United States.
Upon his death she might revert to her original citizenship or retain
her American citizenship. She elects to do the latter, and the fact
that she is dwelling in Turkey does not militate against her doing so,
the Department having repeatedly ruled that the limitations of per-
mitted residence abroad do not apply to that country." It was there-
fore held that she was entitled to a passport as a citizen of the United
States,
Mr. Hay, Sec. of State, to Mr. Choate, anib. to England, No. ,5.m .Tan. 14.
1901, MS. Inst. Gr. Br. XXXIII, 5.34.
L., a woman, originally a British subject, went to Canton, in China,
and opened a hotel. By the British regulations, British sul)jects
were required, under certain penalties, to take out a license for such
purpose. There was no American regidation on the subject, L.
claimed to be an American citizen under § 1994, Revised Statutes of
the United States, which provides that any woman " avIio is now or
may hereafter be married to a citizen of the United States, and who
mi^ht herself be lawfully naturalized, shall be deemed a citizen,"'
She had lately, however, been divorced from her American husband
by the judgment of the United States consular court at Niuchwang,
The consul at Canton inclined to the opinion that she had by the
divorce lost her American citizenship. The minister at Peking
expressed the opinion that the divorce liad simply dissolved the
460 NATIONALITY. [§ 412.
marital relations, aiul that she still remained a citizen of the United
States. The Department of State approved this opinion, stating
that L., by her marriage, became an American citizen, both by British
and by American law; that she had not lost her American nation-
ality by any method recognized by American law; that according
to British law an English woman, who In' marriage acquires foreign
<;itizensliip, must, in order to reacquire her original nationality upon
her husband's death, obtain a certificate therefor from the British
authorities; that it was not believed that any different rule would
be applied where the parties were divorced, and that, as L. claimed
American citizenship, it was assumed that she had not taken any steps
to I'eacquir© British nationality, and that there was no conflicting
daim to her allegiance.
Mr. Uhl, Acting See. of State, to Mr. Denby, min. to China, March 17,
1894, For. Rel. 1894, 139.
Tn 1887 the authorities of the canton of Zurich, Switzerland, ap-
plied to the American legation in Berne for a passport for Mrs.
Weiss, an insane pauper, as a citizen of the United States. It ap-
peared that she was a native of Zurich, and that she was married at
New York in March, 1873, to John Weiss, a native of Bafden, who. in
the following October, was naturalized. In 1878, however, Weiss
and his wife returned to Europe, and in 1880, while they were resid-
ing in Zurich, he deserted her, and, it was said, went back to the
United States; but since the desertion nothing had been heard of
him, and it was not known that he was alive. It was held by the
Department of State that her remaining in Zurich after her deser-
tion would, under ordinary circumstances, presumptively revive her
Swiss domicil and nationality; that, notwithstanding her lunacy,
such a revival might be caused by the election of her local guardians,
and that the action of the Swiss authorities, in hunting up the record
of her husband's naturalization and asking that a passport be given
her, apparently with a view to export her to the United States and
thus get rid of the burden of her support, could not be regarded as
an assertion in her behalf of American citizenship.
Mr. Bayard, Sec. of State, to Mr. Winchester, min. to Switzerland, .Tan. .">,
and March 19, 1888, For. Rel. 1888, II. 1516, 1531.
3. Law in Other Countries.
§ 412.
" In 1862 it was decided by the British Government, in the case of
American-bom widows of British subjects, that, if the American law
was at variance with their own {conferring upon the wives of Brit-
ish subjects the privileges of natural-born British subjects), and the
§ 412.] MARRIED WOMEN. 461
United States desired to put the American law in force, the American
hiw must prevail, and American-born widows being resident in
America would not be entitled to a certificate of being British sub-
jects. The British GoA'^ernment further decided in the case of
British-born subjects, the widows of American or foreign husbands,
that if after the dissolution of their covert-ure they should elect to
claim the benefit of their British character, they would be at liberty
to do so, and must be treated and protected as British subjects.
(Pari. Pap. No. 189.)"
1 Halleck's Int. Law (Baker's ed. 1878), 369.
" I have your dispatch No. 68, respecting the case of Mrs. Gordon,
formerly Topaz, a Russian woman of the Hebrew faith, who has
lately married an American citizen. It is understood that by the
laws of Russia she could not, while a subject of Russia, remain in the
empire without renouncing her faith and accepting Christianity.
You wish to know whether by her marriage to an American such a
person, under the statutes of the United States and the first article of
the treaty of 1832 with Russia, acquires the right to be exempt from
the operation of the municipal laws of Russia.
" The statute of the United States regulating the status of alien
women married to American citizens was approved on the 10th of
February, 1855. ( 10 Stat. L. 604. ) By this statute it is enacted ' that
any woman who might lawfully be naturalized under the existing
laws, married or who shall be married to a citizen of the United
States, shall be deemed and be taken to be a citizen.'
" The Attorney-General of the United States in construing this
statute has held ' that irrespective of the time or place of marriage,
or the residence of the parties, any free white woman, not an alien
enemy, married to a citizen of this countr\\ is to be taken and deemed
a citizen of the United States.' [Williams, At.-Gen., 1874, 14
Op. 402, 406.1
" There can therefore be no doubt that such a person vrould, upon
her marriage to an American citizen, acquire the right to be regarded
by the authorities of the United States as an American citizen in
every country except that to Avhich she owed allegiance at the time of
her marriage.
" It is understood at the Department that the laws of Russia regard
a Russian subject marrying a foreign husband as a foreigner. In
such case no conflict of law could arise, because the Russian Govern-
ment would concede the full American citizenshij) of the married
woman. But should it Ix' otherwise, her relations to that Governniont
would l)e affected by another opinion of the Attorney-General [Tloar,
At.-Gen., 1869, 13 Op. 128], that while the United States may by law
462 NATIONALITY. [§ 412.
fix or declare the conditions constituting citizens of the country
within its own territorial jurisdiction, and may confer the rights of
American citizens everywhere upon persons who are not right-
fully subject to the authority of any foreign country or govermnent,
it ought not, by undertaking to confer the rights of citizenship u})on
the subject of a foreign jiation, who had not come within our terri-
tory, to interfere with the just rights of such nation to the govern-
ment and control of its own subjects."
Mr. Fisli, Sec. of State, to Mr. Jewell, June 9, 1874, II. Ex. Doc. 470, fjl
Cong. 1 sess. 24.
In 1896 Mr. Breckinridge, then American minister at St. Peters-
burg, observing in the foregoing instruction an inicertainty as to the
actual state of the Russian law, addressed an inquiry on the subject
to the Russian foreign office. Mr. Chichkine replied March 14/'2(),
1896, that " every Russian woman married to a foreigner embraces
the nationality of the latter if the marriage has been contracted
conformably to Russian law."
Mr. Breckinridge, niiu. to Russia, to Mr. Olney, Sec. of State, No. 204,
March 28, 189(5, 48 MS. Desp. Russia.
Mr. Olney, observing the clause " if the marriage has been contracted con-
formably to Russian law," suggestetl the inquiry whether the Rus-
sian law recognized the general international rule that a marriage
'"^ valid accoi'ding to the place of its performance is valid elsewhere.
(Mr. Olney, Sec. of State, to ^Ir. Breckinridge, rain, to Russia,
No. 218, April 11, 1897, MS. Inst. Russia, XVII. 437.)
The answer is given in the next passage.
The Department of State seems to have thought, in 1863, that the
Russian denial of the right of voluntary expatriation extended to
Russian women marrying foreignex-s ; but in the statement of this
supposition tiiere is no refei*ence to any provision of Russian law at
that time. (Mr. F. W. Seward, Assist. Sec. of State, to Mr. Morgan,
March 13, 1863. 59 MS. Dom. Let. 564.)
By article 1026 of the Russian Civil Code, Collection of Laws of the
Russian Empire, IX., edition of 1876, it is provided : " Every Russian
subject who has married a foreigner, and thereby will be considered
as a foreigner, has the right after the death of her husband, or after a
formal divorce, to resume Russian allegiance, and in this case it will
suffice for her to present to the governor of the province in which she
may have chosen domicil a special certificate proving her widow-
hood or divorce. The document delivered by the governor stating
that the above certificate has been presented to him will be available
to the person in question as proof of her resumption of Russian
allegiance."
See Mr. Peirco, charge d'affaires ad interim, to Mr. Sherman, Sec. of
State, Aug. 18, 1897, enclosing a note of Count Lanisdorff, of July
31/Aug. 12, 1897, For. Rel. 1897, 445.
§ 412.J MARRIED WOMEN. " 463
In a case involving the validity of the marriage of a citizen of the
United States with a Chinese woman at Canton, China, the ceremony
being performed by a Roman Catholic priest, it was stated that " a
woman's nationality merges on marriage in that of her husband,"
and that the Chinese wife of the citizen in question " became, by the
mere fact of her marriage, an American citizen."
Opinion of Dr. Francis Wharton, law officer of tlie Department of State,
April 29, 1885, communicated by Mr. Bayard, Sec. of State, to Mr.
Smithers, charge at Peking, May 4, 1885, For. Rel. 1885, 171, 172.
See, however, as to the question of merger of nationality, in the case
of a Chinese woman married to a citizen of the United States, a
contrary view expressed in Mr. Hay to Mr. Conger, Feb. 5, 1903,
supra, § 410, p. 458.
In 1888 an agreement was entered into between the German min-
ister at Peking and the tsung-li yamen with reference to jurisdiction
over Chinese women who were married to German subjects. The
principle was adopted that a Chinese woman married to an alien
Avas subject to the jurisdiction of the laws of her husband's nation-
ality; but it was agreed that the fact of the marriage of a Chinese
woman to a German subject should be communicated by the German
consul to the local authorities. It was also agreed that the German
consular officers should make report of existing marriages; but that,
where the parties had failed to request the German consul to report
the marriage to the local authorities, and an action at law was brought
against the wife, it should be tried and settled by the Chinese authori-
ties. It was also stipulated that, if it appeared that a Cliinese woman
had been guilty of a crime before her marriage and had married a
German subject for the purpose of placing herself under foreign
protection, the crime should be punished by the Chinese authorities.
Mr. Denby, min. to China, to Mr. Bayard, Sec. of State, July 9, 1888, For.
Rel. 1888, I. 319-321.
" The rule accepted by the Government of China, that places a
Chinese woman married to a (ierman under the national jurisdiction
of the husband, will probabl}' assist in determining the status, in
China, of the Chinese wife of an American citizen, assuming the mar-
riage to be consensual and monogamous; and no special agreement on
our part with China or modification of our statute to such end appears
to be necessar}'^ at present."
Mr. Bayard. Sec. of State, to Mr. Denby, mln. to China, Aug. 27, 1S88. For.
Rel. 1888, I. 349-350.
464 NATIONAX.ITY. [§ 413?
VIII. EFFECT OF PARElsTH' ^ AT V II ATA Z AT ION ON INFANTS.
1. Amkbican Law.
§413.
" The children of persons who have Ijeen duly naturalized under
any law of the United States, . . . beiii^^ under the age of
twenty-one years at the time of the naturalization of their parents,
shall, if dwelling in the United States, be considered as citizens
thereof."
Rev. Stats., § 2172 ; acts of March 2r>, 1790, 1 Stat. 103 ; Jan. 29, 1795,
§.3, 1 Stat. 414; April 14, 1802, §4, 2 Stat. 15.3; Rexroth v. Seliein
(1903), 200 111. 80, 09 N. E. 240.
The act of 1802 was intended to operate prospectively as well as retro-
spectively, and should not be liniite<l to the children of those who
had been naturalized at the time of its passage. (Boyd v. Thayer,
143 U. S. 135, 177, citing United States v. Kellar, 13 Fed. Rep. 82 ; West
V. West, 8 Paige, 433 ; State v. Andriano, 92 Mo. 70 ; State v. Penney,
10 Ark. 021; O'Connor f. The State, 9 Fla. 21.5.)
By § 21G8, R. S., when an alien, who has made a declaration of intention,
" dies before he is actually naturalized, the widow and the children
of such alien " may become citizens " upon taking the oaths pre-
scribed by law."
See Ferguson v. Johnson, 11 Tex. Civ. App. 413 ; Trabing v. United
States, 32 Ct. CI. 440.
The naturalization of the father does not relate back to the declaration
of intention, so as to affect the status of a child who has attained his
majority before the father's naturalization. (Berry r. Hull (N. M.),
30 Pac. 930. See, also, Dorsey v. Brigham, 177 111. 250, 52 N. E. 303.)
Under § 4, act of April 14, 1802, a minor child of a father natural-
ized as a citizen of the United States became a citizen, though not
then within the United States, provided she was resident therein at
the time of the passage of the act.
Campbell v. Gordon (1810), 0 Cranch, 170. See Behrensmeyer v. Kreitz,
135 111. 591, 20 N. E. 704.
Children born abroad of aliens who subsequently emigrated to this
country with their families, and were naturalized here during the
minority of their children, are citizens of the United States.
Bates, At. Gen,, 1802, 10 Op. 329; cited in Mr. Frelinghuysen, Sec. of
State, to Mr. Brulatour, July .30, 1883, MS. Inst. France, XX. 594.
It does not suffice that the child was a minor when the parent's declara-
tion of intention was made; he must have been a minor when the
naturalization was completed. (Mr. Cass, Sec. of State, to Mr.
Medill, June 14, 1859, 50 MS. Dom. Let. 391.)
A boy of eighteen years, who has never been out of Germany, but whose
father is a naturalized citizen of and resident in the United States,
§413.] EFFECT OF PARENTS' NATURALIZATION. 465
is not eutitled to obtain tlie interposition of tliis Government to
secure liim from military service in Germany, or to relieve him
from being detained in Germany for that purpose. (Mr. Evarts,
Sec. of State, to Mr. Caldwell, Mar. 0, 1880, 132 MS. Dom. Let. 9.3.)
Section lil72 of the Revised Statutes is regarded " as applicalile to such
children as were actually residing in the United States at the time
of their father's naturalization, and to minor children who came to
the United States during their minority and while the parents were
I'esiding here in the character of citizens." (Mr. Blaine, Sec. of
State, to Mr. Kasson, Mar. 31, 1881, For. Rel. 1881, 52, 53.)
" The laws of the United States on the subject of naturalization
provide, in relation to persons situated as your sons are, ' that the
children of persons duly naturalized under any of the laws of the
United States, . . . being under the age of twenty-one years
at the time of thfeir parents being so naturalized or admitted to the
rights of citizenship, shall, if dwelling in the United States^ be con-
sidered as citizens of the United States.' Assuming that your three
sons were born in France, accompanied you to this country and havcj
continued to reside here (the fact is not distinctly stated in your
letter), they, together w^ith your son born here, are^ under the pro-
vision just cited, to be considered, when dwelling in the United
States, citizens of the United States, with all the rights and privileges
attaching to that character, and entitled to the protection which this
Government extends to all its citizens in the exercise and enjoyment
of these rights.
" This Department does not as a rule undertake to give informa-
tion upon the laws of other countries, nor as to the construction
which those countries may put upon their own laws in applying
them to persons found within their territorial jurisdiction."
Mr. Fish, Sec. of State, to Mr. Jouffret, Feb. 11. 1874. 101 MS. Dom.
Let. 291. See, also, Mr. Bayard, Sec. of State, to Mr. Cramer. No.
140, May 22, 1885, MS. Inst. Switz. II. 25(5; :\Ir. Wliarton, Assist. Sec.
of State, to Mr. Cook, April G, 1892, 180 MS. Dom. Let. 21.
A Spanish subject by birth was naturalized in the United States in
February, 1876, and thereupon his son, aged twenty, who was born in
the Island of Cuba, applied to the State Department for a })ass])ort,
stating that he had resided in the United States for five years, but
that it was his intention to resume his residence in the Spanish do-
minions and engage in business there. It Avas held that the son. being
a minor at the time of his father's luituralization, must be considered
a citizen of the United States within the meaning of section '21 7*2,
Revised Statutes, and as such entitled to a passport, and that th(>
circumstance that he intended to reside in the country of his l)ii-th
did not make him less entitled tlian if his destination were elsewhere.
H. Doc. 551— vol 3 30
466 NATIONALITY. [§413.
Taft, At. Gen. 1870, 15 Op. 114.
Quaere, however, arf to the nitplicability of the doctrine of double alle-
giance in such cases, so long as minority continues.
" Under section 2172 of the Revised Statutes of the United States,
if, as you state, your father was naturalized Avhile you were a minor,
you are by virtue of that fact, if dwelling in the United States, an
American citizen, and entitled to protection as such, in case you
should be molested upon visiting Germany, your father's native
country."
Mr. Frelinghuyscn, Sec. of State, to Mr. Goldenberg, Dec. 15, 1884, 153
MS. Dom. Let. 437.
See, also, Mr. Frelinghuysen, Sec. of State, to Mr. Kasson, miu, to Ger-
many, Jan. 15, 1885, For. Rel. 1885, 394, 395.
Robert Emden was born in Switzerland in 1862. His father, a
native of Switzerland, was naturalized in the United States in 1854,
but soon afterwards returned to Switzerland, where he ever after-
wards continued to reside. In 1885 the son, who had never been in
the United States, applied to the American legation at Berne for
a passport. The Department of State held : "The passport applica-
tion of Mr. Robert Emden, although he is the son of a naturalized
American, cannot be granted, because he is not and never has been
' dwelling in the United States,' according to section 2172 of the
Revised Statutes."
Mr. Bayard, Sec. of State, to Mr. Cramer, niin. to Switz., June 27, 1885.
For. Rel. 1885, 806.
To the same effect is the case of Charles Drevet, decided in 1885. (Mr.
Bayard, Sec. of State, to Mr. MoLane, luin. to France, July 2, 1885,
For. Rel. 1885, 37.3.)
See, also, Mr. Rives, Assist. Sec. of State, to Mr. Haus, Dec. 5, 1888, 170
MS. Dom. Let. G97; Mr. Adee. Second Assist. Sec. of State, to Mr.
Schmitz, Nov. 5, 1890. 179 MS. Dom. Let. 579; Mr. Rockhill, Act.
Sec. of State, to Mr. Breckinridge, min. to Russia. July 21. 1S9G,
For. Rel. 189G. 51(*>-517; .Mr. Hill, Assist. Sec. of State, to Mr. Wake-
man, March 22. 1899, 235 MS. Dom. Let. 599: Mr. Hill. Assist. Sec.
of State, to Mr. Pritchard, March 17, 1900, 2ri:i MS. Dom. Let. 584.
S., a native of Germany, was taken in her infancy to the United States.
Her father, who was a German, died soon after his emigration,
and his widow married his brother, who was a naturalized citizen.
In the autunm S., being then about 24 years of age. and having
lived nearly all her life in the Unittnl States, went to Germany,
temi)orarily, to study music. She applieil soon afterwards to the
embassy for a passix)rt, which was granted. The action of the em-
bassy was ai)i)roved by the Department of State "as being in accord
with the principle established by the Ilabei'acker case (F. R. 1891, p.
521)." (Mr. Adee, Acting Sec. of State, to .Mr. Runyon. amb. to
Germany. April 22, 1895, For Rel; 1895, I. 534. For Haberacker's
case, see infra, § 414.)
§413.] EFFECT OF PARENTS ' NATURALIZATION. 467
" Mrs. Heisinger was born in Altona, Prussia. Her husband was
also an alien by birth and came to the United States
^"' ^'^in^r ^"'" "^ ^^^' ^^^^- ^ ^^ '''"^^ naturalized August 18, 1871,
and died probably not later than 1879. The son
Carl was born in Philadelphia, in the State of Pennsylvania, Janu-
ary 21, 1871, more than six months before the naturalization of his
father. In 1879 Mrs. Heisinger returned to Germany, taking her
son with her, and has ever since resided in that country. . . ,
" It is a reasonable interpretation that the words ' if dw^elling in
the United States ' were intended, among other things, to meet tlie
case of conflicting claims of allegiance. In this relation it is j^erti-
nent to disclose the origin of those words. On March 26, 1790, an
act was approved, entitled 'An act to establish an uniform rule of
naturalization' (Stats, at Large, 103). This was the fii-st law en-
acted by Congress on that subject. The first clauses prescribed the
conditions and methods of naturalization. Then followed these
words :
"And the ehiklren of such jiersons so natui'alized, dwelling within the Unito<l
States, being under the age of 21 years at the time of such naturalization, shall
also be considered as citizens of the United States.
" In 1795 the law of 1790 was repealed by an act of the 29th of
January of the former year entitled, 'An act to establish an uniform
rule of naturalization, and to repeal the act heretofore passed on that
subject' (1 Stats, at Large, 414). By the third section of the act
of January 29, 1795, it was provided that —
" The children of persons duly naturalized, dwelling within the United States
and being inider the age of 21 years at the time of such naturalization, and the
children of citizens of the United States born out of the limits and jurisdiction
of the United States, shall be considered as citizens of tlie I'nited States.
" The law on this subject so remained until 1802, on the 14th of
April, of which year, an act was approved entitled, 'An act to estab-
lish an uniform rule of naturalization, and to repeal the acts hereto-
fore passed on that subject.' (2 Stats, at Large, 153.)
" The fourth section of this act provides that —
"The children of persons duly naturalized under any of the laws of the
United States being under tlie age of 21 years at the time of their
l)arents being so naturalized .... sliall, if dwelling in the United States,
be considered as citizens of the United States, and tlie cliildren of persons who
are now or liave been citizens of the United States, shall, though Itorn out of
the limits and jurisdiction of the United States, be considered citizens of the
United States.
" It will be observed that in this provision, which is incori^orated
in section 2172 of the Revised Statutes, the words •• if dwelling in the
United States' are trans|)()sed. The effect of this transposition was
considered by the Supreme Court of the United States in the case of
468 NATIONALITY. [§ 413.
CaiiiplK'll . . (iordon ((> Criinch, ITO) in 1810. The case involved a
title to land, which depended upon the citizenship of one Vanetta
Gordon, nee Currie, who was by birth a British subject. Her father,
also a natunil-born British subject, eniij^rated to the United States
and in 1795 was naturalized. His daughter Yanetta was then resid-
ing in Scotland, where she remained until 1797, in which year she
came to the United States. It was contended by counsel that she
was not a citizen of the United States, inasnnich as slie was not
dwelling in the United States at the time of her father's naturaliza-
tion. The Sujjreme Court took a different view of the matter. Mr.
Justice Washington, delivering the opinion of the court, said :
" ' The next question to be decided is whether the naturalization
of William Currie conferred upon his daughter the rights of a citizen
after her coming to and residing within the United States, she hav-
ing been a resident in a foreign country at the time when her father
w^as naturalized. Whatever difficulty might exist as to the construc-
tion of the third section of the act of January 29, 1795, in relation to
this point, it is conceived that the rights of citizenship were clearly
conferred upon the female appellee by the fourth section of the act
of April 14, 180*2. This act declares that the children of persons
duly naturalized under any of the laws of the United States, being
under the age of 21 years at the time of their parents being so nat-
uralized, shall, if dwelling in the United States, be considered as
citizens of the United States. This is precisely the case of Mrs.
Gordon.'
" The effect of the law, as thus expounded, is to make actual resi-
dence in the United States, and not residence at the time of naturali-
zation, the test of the claim to citizenship; and here, as explanatory
of this rule, it is important to observe the associated provision, found
in all the acts above quoted, and incorporated in the same relation in
section 2172 of the Revised Statutes, that children born of citizens of
the United States shall, though born out of the limits and jurisdic-
tion of the United States, be considered as citizens thereof. Under
this provision, such children are treated as citizens of the United
States, wdiether dwelling in this country or not, being regarded as
citizens of the United States by birth. The preceding provision
relates to children born of parents who were not at the time citizens
of the United States, and upon whom the country of the parents,
under the same rule of law as that announced by this Government,
might have claims of allegiance. In respect to such persons, the
words ' if dwelling in the United States ' recognize a possible con-
flict of allegiance. They also recognize another principle, and that
is that it is not within the power of a parent to eradicate the original
nationality of his child, though he may, during the minority of such
child, invest him with rights or subject him to duties which may or
§413.] EFFECT OF PARENTS^ NATURALIZATION. 469
may not be claimed or performed. For this reason, also, it is pro-
vided that children not born citizens of the United States are, by
virtue of the naturalization of their parents, to be considered as
citizens of the United States ' if dwellinof ' therein.
" The Department does not desire to be understood to assert that
natural-born subjects of a foreign power whose parents have been
naturalized in the United States must at every moment be dwelling
in the United States in order to chiim its citizenship. That question
does not arise in the present case. The words ' if dwelling in the
United States,' Avhether meaning residence at a particular moment
or contemplating a settled abode, apply to Carl Heisinger, who,
being now 19 years of age, has for about 11 years been dwelling in
Germany. It is not known that the Government of that country
has made any claims upon liim. But, if the German Government
should, under a provision of law similar to that in force in the United
States in relation to the foreign-born children of citizens, seek to
exact from him the j^erformance of obligations as a natural-born
subject, the Department would be bound to consider the provisions
of section 2172 of the Revised Statutes."
Mr. Blaine, Sec. of State, to Mr. Thelps, minister to Germany, February
1, 1890, For. Rel. 1890, 301.
J. W. claimed American citizenship through the natifralization of
his father. The latter was born in the Crimea in 183G, came to the
United States in 1875, and was luituralized in 1881. Three months
later he returned to Russia, where he continued to reside, following
the occupation of a farmer. J. AV. was born in Russia and returned
to that country wnth his father in 1881, being then nineteen years of
age, and afterwards resided there, also following the occuj^ation of
farming. In 1891, being then twenty-eiglit years old. he applied
to the American legation at St. Petersburg for a passport. ITe ex-
pressed no intention as to returning to the United States. The
Department of State declared that it would not have avaiknl him if
he had. Under section 2172, Revised Statutes, said the De|)artnient,
the children of persons who have been duly naturalized, being under
the age of twenty -one years at the time of theii- })arent's naturaliza-
tion, are, " if dwelling in the United States," to be considered as
citizens thereof. J. W., said the Department, " never has dwelt here
since attaining his majority, and is not dwelling here now. Tie is
therefore precluded by the statute from claiming the benefits of
citizenship of the United States."
Mr. Blaino. Sec. of Stat*', to Mr. Smitii. mill, to Russia. No. 79. Fci). 12S,
1891, MS. Inst. Russia, XVI. (>9(;.
470 NATIONALITY. ("g 413.
" With ri'pirtl to your iiKiuiry as to whetluT a jierson residing
abroad could l)o considered as 'dwelling in the United States,' so as
to come within the meaning of section 2172, Revised Statutes, I
would say that this passage has reference merely to the residence of
a minor, who, to be naturalized under the statute, must lie 'dwelling
in the United States ' either at the time of the parent's naturalization
or afterwards during his minority. The j)hrase clearly could not l)e
construed to mean that the person must always lx> ' dwelling in the
United States' in ordei; to be entitled to citizenship. By such inter-
pretation a person claiming citizenship through the parent's natu-
ralization would be precluded from asserting citizenship w'hen not
actually within the jurisdiction of the United States. A person
properly claiming naturalization under this statute (2172, R. S.) is
as completely naturalized as if he had complied with the conditions
of the general naturalization laws of the United States, and w^ould
not, if he left the jurisdiction of the United States, have to comply
with the requirements of Revised Statutes 2167, by taking out natu-
ralization papers for himself."
Mr. Hay, Sec. of State, to Mr. Storer, min. to Belgium, March G, 1899,
For. Rel. 1899, 87.
" The fact that a person claiming citizenship through the naturalization
of a parent was not himself independently naturalized is quite innna-
terial." (Mr. Hay, Sec of State, to Mr. Storer, min. to Belgium.
Feb. 4, 1899, For. Rel. 1899, 84, 85, citing Rev. Stats, sec. 2172.)
"Anton Macek, according to your statement, was born in Vienna,
of Austrian parents, August 13, 1875. In May, 1884,
his father, Alois Macek, emigrated to the United
States with his entire family and has resided in Chicago ever since.
Before his naturalization and while the son, Anton, was yet a minor —
August 16, 1894 — the father sent him to Austria to be educated. The
father, Alois Macek, was naturalized in the superior court of Cook
County, 111., October 22, 1894 — that is, subsequently to the return of
the son, Anton Macek, to Austro-Hungarian jurisdiction, where he
has since remained.
" You have felt it to be your duty to withhold a passport in the
view that section 2172 merely confers citizenship upon minors actu-
ally residing in the United States at the time of their father's natu-
ralization, in support of which.opinion you refer to the Dej^artment's
instruction to you. No. 2, of April 1, 1899, the jjertinent provisions of
which you quote.
" At the same time you submit to the Department the view, which
you state is advocated by the consul at Prague, that the words ' dwell-
ing in the United States' refer to the legal residence of a minor
which, unless manumitted, is with the parent wherever the minor
§413.] EFFECT OF PARENTS' NATURALIZATION. 471
may happen to be, so that, although not at the time of the naturali-
zation of the father actually within the jurisdiction of the United
States, the son, Anton Macek, may be held to have been vicariously
present in the person of the father through whom he then and there
became a citizen of the United States, the same as though he had
been personally present at his father's home in Chicago.
" Still another view is brought forward, to the effect that the pro-
tective force of section 2172 only applies to the minor children of
naturalized aliens while such minor children are actually within the
jurisdiction of the United States.
" This narroAv interpretation is no longer entertained by the Depart-
ment, although as a proposition in municipal law it has on several
occasions in the past been enunciated; but it has been replaced in
practice by a quasi conventional interpretation, as will be later shown,
by which the acquisition of a parent's citizenship by an alien minor is
assimilated to the actual naturalization of the minor himself. . . .
" On page 301 of the volume of Foreign Relations for 1890 you will
find a carefully formulated instruction sent by Mr. Blaine to Minister
Phelps at Berlin, No. 57, February 1, 1890, in which considerable
attention is given to the intent and application of section 2172,
Revised Statutes. The purport of that opinion (which is understood
to have been prepared by Mr. John B. Moore, then Assistant Secre-
tary, and now a known and recognized authority on matters of inter-
national law) is that the effect of the American law is to make actual
residence in the United States, and not residence at the time of
naturalization, the test to the claim of citizenship, inasmuch as the
provision relates to children born of parents who are not at the time
citizens of the United States, and upon whom the country of the
parent, under the same rule of law as that announced by this Govern-
ment with respect to the children born abroad of citizen parents,
might have claims of allegiance. In respect to such persons the words
' if dwelling in the United States ' recognize a possible conflict of
allegiance. In the absence of any such conflict of allegiance l)eing
adversely raised Iw the government within whose jurisdiction the
minor may be temporarily dwelling, there could be little doubt that
the law of the country which naturalized the father would obtain;
and in fact it does obtain, by common consent, in the relations of the
United States with Germany. In practice, therefore, it may be said
that the naturalization of the father operates to confer the municipal
right of citizenship upon the minor child, if he be at the time of the
father's naturalization within the jurisdiction of the United States,
or if he come within that jurisdiction subsequent to the fatherV natu-
ralization and during his own minority.
"The principle may be broadly stated that no country can natural-
ize an inhabitant of another country while that per>on is dwelling
vi72 NATIONALITY. [§413.
Avithin the jurisdiction of the other country; that naturalization is a
municipal act valid within the jurisdiction of the naturalizing power,
and that, once performed by due operation of law, it is entitled to
respect. It is not necessary that naturalization should be a strictly
judicial act, as in the case of the original naturalization of an alien
father. The minor son is just as much naturalized by the fact of
being within the jurisdiction of the United States at the time of the
father's naturalization, or coming within that jurisdiction subse-
quently during minority, as if he himself had been admitted to
citizenship by a decree of the court. . . .
"The view that citizenship acquired by a minor through the parent's
naturalization is in effect a process of naturalization according to law,
obtains in applying the German-American naturalization treaties,
where evidence that a minor child has acquired citizenship through
the father, according to the laws of the United States, coupled with
evidence that the minor had resided at least five years in the United
States, are taken to fulfill the conditions of the treaty — that is, in
effect, to show that the minor child has been naturalized according
to law.
" These points are, however, adverted to for your information
merely and not as controlling your action in respect to Anton Macek's
application for a passport. Whatever construction be given to section
2172 of the Revised Statutes, it is quite clear that it can not apply to
this present case, because the words 'if dwelling in the United States '
do not fit the circumstances. The applicant was not dwelling in the
United States at the time of his father's naturalization, he has not at
any time since dwelt in the United States, and of course is not now
dwelling here.
" Your action in withholding the passport from Anton Macek is
approved."
Mr. Hay, Sec. of State, to Mr. Harris, niln. to Austria-Hungary, Jan. 22,
1900, For. Rel. 1900, l.*?-15.
That the naturalization of the parent effects, under the treaties [e. g..
that with Sweden and Norway], the expatriation of minor children
dwelling in the United States, if or after the latter have also resided
there five years, see Mr. Sherman, Sec. of State, to Mr. Grip, Swedish
min.. No. 104, June 15, 1897, 8 MS. Notes to Sweden, 58.
" As stated in my instruction. No. 603, of October 15, 1898, in the
case of Jacob Lenzen, the words of the statute ' dwelling in the United
States ' are held to mean either at the time of the father's naturaliza-
tion or afterwards during the child's minority."
Mr. Hay, Sec. of State, to Mr. Jackson, charg6 at Berlin, Oct. 3, 1900, For.
Rel. 1900, 527.
§414.] EFFECT OF PARENTS ' NATURALIZATION. 473
2. Marriage of Alien Widow to American.
§ 414.
" I transmit herewith copy of a letter addressed to this Depart-
ment under date of 23d ultimo by Mr. George Ilaberacker, of Cleve-
land, Ohio, in relation to the impressment into the Bavarian army
of his brother, John Haberacker.
" From this letter, and from the newspaper clipping which accom-
panied it, the facts of the case may be thus conveniently summarized :
" John Haberacker was born in Windsheim, Bavaria, on August
18, 1869, and has but very recently attained his twenty-first year.
His father was a subject of Bavaria, and died in that country in
1883, when John was 14 years old. His widow emigrated to the
United States the same year (1883), bringing her minor children
with her. Three years later (in 188(5) the widow Haberacker mar-
ried one Andrew Knauss, a Bavarian by birth, but then for thirty-
three years a citizen of the United States by naturalization. About
three months ago Mr. Knauss and his wife went to Bavaria to visit
relatives at Windsheim, taking Avith them John Ilabei-ackcr, who
had not yet reached full age. They returned in July, leaving John
in Windsheim for,a further stay of a fortnight. On August 3, a few
days before he had arranged to return to the United States, John
Plaberacker was arrested as liable to military service and taken to
Uffenheim, where a partial examination was had. Thence he was
taken to Anspach, where he was heard before a military court and
adjudged liable to three years' service as a Bavarian subject in the
armies of the Kingdom. He was accordingly assigned to the Four-
teenth Regiment of Infantry, on duty at Nuremberg, where he was
when last heard from.
" The statutes of the United States applicable to tlie case are as fol-
lows :
" Sec, 1904. Any woman who is now, or may lioroaftor be, married to a <Mti7,on
of the United States, and who might herself [)e huvfuily naturahzed. sliall l)e
deemed a citizen,
" Sec, 2172. The children of persons who liave l)een duly naturalized under
any law of the United States . . . beiuf: under tli(> ajje of 21 years at the
time of the naturalization of their ])arents, shall, if dwelling in the United
States, be considered as citizens thereof.
" It has been held by our courts that the husband's citizenship
confers citizenship upon the wife without application for naturaliza-
tion on her part or tlie usual (lualifications. There is also an e\])rcss
decision of the United States circuit court (13 Federal Repoi-tcr. .S2)
that upon the marriage of a resident alien woman with a naturalized
citizen both she and her infant son, dwelling in this country, become
474 NATIONALITY. [§414.
citizens of the United States as fully as if they had become such in
the special mode prescribed by the naturalization laws.
" It is conclusive, therefore, under the laws of this country, that
John ITaberacker, upon the marriage of his mother to Knauss in
1880), became a naturalized American citizen. That he shall be
treated as such by the Royal Government of Bavaria, our treaty
with that Government of May 20, 1808, only requires further that
he ' shall have resided uninterruptedly within the United States
for five years.'
" It is the generally accepted theory in this country that a widowed
mother may reasonably and in good faith change the domicil of her
minor children. WTien the boy John Haberacker, therefore, came to
this country to live, in 1888, with his mother, his only natural pro-
tector, the United States thereby became his domicil. It is under-
stood that in some of the systems of European law a different view
prevails, viz, that the minor's domicil is fixed by the father's death
and can not be changed during minority by the mother. The De-
partment is not informed, however, that the law of Bavaria in this
regard is different from our own. And in any event, whatever view
that Government may entertain as to the legal domicil of Haber-
acker, with respect, for instance, to such a question as the succession
to property in that Kingdom, it is believed that they will agree with
us that the facts in this case constitute such an uninterrupted resi-
dence in this country as is contemplated by the treaty and bring
Haberacker's case within its provisions.
" In this connection the stipulations of Section III. of the supple-
mentary protocol of Munich, signed May 20, 1808, have a pertinent
application. It is therein provided that, while Bavarians ' emigra-
ting from Bavaria before the fulfillment of their military duty can
not be admitted to a permanent residence in the land till they shall
have become 32 years old,' this does not forbid a journey to Bavaria
for a less period of time and for definite purposes, and the Royal
Bavarian Government cheerfully undertakes, in cases of good faith,
' to allow a mild rule in practice to be adopted.' The emigration of
a child of 14 in the care of his widowed mother suggests no bad
faith. The child at that age could not have been enrolled for service
under a draft, or stood in service under the flag, or broken a leave
for a limited time, or failed to respond, while on unlimited leave,
to a call into the service to which he belonged — w'hich are the usual
conditions under which service is exacted of Germans returning to
Germany after naturalization abroad. The general rule now ob-
served in practice throughout the German P^mpire corresponds with
the specific rule laid down in Article II. of the treaty of naturaliza-
tion of July 19, 1808, between the United States and Baden, and its
reasonableness and justice commend it as equitably governing sucli
§414.] EFFECT OF PARENTS^ NATURALIZATION. 475
cases. Under it emigration, even if transgressing other legal provi-
sions on military duty than the cases of practical desertion or evasion
of an accrued and existing obligation to service at the time, which are
recited above, does not subject the emigrant on return to be held to
military service or to be tried and punished for nonfulfillment of
military duty.
" In view of the above, I have to direct you to call the facts in this
case to the attention of the Government of Bavaria, in the confident
belief that that Government will be pleased to take steps looking to
Haberacker's prompt release from his present enforced military
service.
" In conclusion, I must caution you not to allow the consideration
of this case to be prejudiced by the statement in his brother's letter
(George Haberacker) of August 19, 1890, that John, on reaching his
legal age, ' had intended to take out his full papers, if necessary, on
his return.'
" The brother's supposition that some formal act of the court might
be required to confirm his citizenship, but which we hav^e found to
be unnecessary, can have no bearing either way."
Mr. Wharton, Act. Sec. of State, to Mr. Phelps, min. to Germany, Sept. 8,
1890, For. Rel. 1891. 49G.
" Recurring to the note verbale of the 31st ultimo, the undersigned
has the honor to inform the envoy extraordinary and minister pleni-
potentiary of the United States of America, Mr. William AValter
Phelps, that the Koyal Bavarian Government does not consi<ler the
American citizenship of John Haberacker, now performing military
service in Tiavaria, as proven. In section 1993, Revised Statutes,
the principle is laid down that the citizenship of the father decides
that of the children, and it is not to be assumed that this j^rinciple,
Avhich coincides with all known views of law, was intended to be
modified by section 1994 or section 2172.
"As regards section 2172, it, in connection with the two above-cited
provisions of law, may, according to the views of the Bavarian Gov-
ernment, well give rise to a doubt that the naturalization of both
parents is requisite to convey American citizenshi}) to their minor
children also, or whether the naturalization of the father alone is
sufficient. From this provision the conclusion can not, however, be
arrived at, notwithstanding the conflicting decision of a single
American court, that a minor whose father, as in Haberacker's case,
has never lived in the United States shoidd acquire American citizen-
.ship solely by virtue of the naturalization of his uiother.
"The Royal Bavarian Goverimient thei'efore believes tiiat John
Haberacker should continue to serve with the flag, unless it is con-
vincingly proved by a})pr()priate American authority that by the
476 NATIONALITY. [§ 414.
law of the United States he has acquired American citizenship by
the marriage of his mother with an American."
Freiherr von Uotenhau to Mr. Phelps, Feb. 28, 1891, accompanying Mr.
Phelps to Mr. Blaine, No. 245, March 2, 1891, For. Rel. 1891, 50G, 5()7.
"Article I. of our treaty with Bavaria, concluded May 2G, 18C8,
provides that —
" Citizens of Bavaria who have become, or shall become, naturalized citizens
of the United States of America, and sliall have resided uninterruptedly within
the United States for five years, shall be held.by Bavaria to be American citi-
zens and shall be treated as such.
" The reply of the imperial foreign office admits Haberacker's
requisite residence in this country, and that whether or not he has
become a nauralized American citizen is to be determined solely by
the local law of the United States. . . .
" The Bavarian Government entirely overlooks the fact that sec-
tion 1993, to which reference is made, is not a part of, and does not
in any way relate to, our naturalization laws.
"It and the previous section (1992) define who are native-born
citizens of the United States. The first of the two sections adopts
in its entirety the principle of nationality of origin dependent upon
the place of birth. The second section adoj^ts in part only the other
theory of dependence upon the nationality of the parents. In this
respect the laws of this country do not differ materially from the laws
of most other countries, in which both elements, pis soli and jus
sanguinis^ as a rule, exist, though not always the same one predomi-
nating. (Cockburn on Nationalit3% chap. 1.)
" Section 1993 is a restrictive statute, and provides, as to children
born out of the limits and jurisdiction of the United States, that only
those are citizens thereof by birth whose ' fathers' (1) were citizens
and (2) w^ere such at the time of the birth of the child, and (3) have
at some time resided in this country. These restrictions relate solely
to the determination, under the laws of the United States, of the
national status of a child at birth. Each of the restrictions may be
presumed to have been used intentionally, and all of them, from their
very nature, could not have been used in our naturalization laws,
oven if it had been desired. Excepting the case of posthumous
children, every child at birth has a father, and if a child is to inherit
citizenship it most properly takes that of the father. The United
States could scarcely have claimed the citizenship of children born in
a foreign country of an American mother and an alien father,
while, on the other hand, if the father was a citizen the mother
would be one also under our laws by virtue of her marriage.
" There is no question as to Haberacker's status at birth. It is
only on account of being born an alien that he comes within the
§414.] ^ EFFECT OP parents' NATURALIZATION. 477
purview of sections 1094 and 2172, which rehite solely to citizenship
by naturalization.
" Those two sections point out some but not all of the several
methods by which aliens can be and are admitted to citizenship in this
country. Although section 1994 is not found in Title XXX in con-
nection with most of the laws on the subject of jiaturalization, it is
jievertheless solely a naturalization law. It is uniformly held under
it that an alien woman, who might herself be lawfully naturalized,
by nuirriage to a citizen becomes herself a citizen without any previ-
ous declaration or act on her part, or without reference to the
previous length of her residence in this country, as fully to all intents
and purposes as if she had become a citizen upon her own application
and by the judgment of a competent court.
" Haberacker's mother, by her marriage to Knauss, a citizen, was
accordingly ' duly naturalized under any (a) law of the Ujiited
States.' It only remains to determine whether she is a ' person '
within the meaning of section 2172. If so, her minor son, residing
with her at the time in this country, likewise became a citizen. The
word ' person ' may be presumed to have been used as intentionally
in this section as the word ' fathers ' was used in section 1993. By
the death of the father the mother often becomes the natural pro-
tector of the child. Such a child can only be excluded from the
benefits of section 2172 by a forced construction of its language,
which view is also strengthened by the fact that it reads : ' The chil-
dren of persons who have been duly naturalized under any law of the
United States.' It clearly contemplates the case of persons natural-
ized under other than the regular and usual provision with respect
thereto.
" The exact point at issue was decided in the case of the United
States vs. Kellar (13 Federal Eeporter, 82), to which reference was
made in Department's instruction No. 140, of Sei)tember 8. It was
decided in the court of next highest jurisdiction to the Supreme
Court of the United States, and by Mr. Justice Harlan, one of the
most distinguished judges of the Supreme Court. The same question
is not known to have ever been passed u})on by the Su[)reuie Court,
but it is not a question of itself alone ap])ealable to that court. The
decisions, however, of the' State and Federal courts have been uni-
form with respect thereto.
" »Tudge Harlan, in the course of his opinion, said :
" ' The case seems to be so distinctly one of those embraced l)V the
very language of section 2172 that argument could not make it
plainer.'
'' The Kellar case, decided in 1882, is not a ' conflicting decision of a
single American court.' I find upon a little investigation that sec-
tion 2172 has been construed in exactlv the same wav to confer eiti-
478 NATIONALITY. [§414.
zoiisliip upon the minor child of a widow nuuTving a citizen, in 1885,
by tlie supreme court of the State of New York, in the case of the
People V8. Newell (38 Hun, 78), and again in 1888 by the supreme
court of the Stat<:^ of Missouri, in the case of Gunn as. Hubbard (97
Mo. 321), and I fail to find any cases which, even by implication,
throw any doubt upon the correctness of those decisions. In con-
sideration of the uncontradicted opinion of the sui)reme courts of
two of our greatest States and the decision of one of the justices of
the Supreme Court of the United States upon this point, it is believed
that the Royal Bavarian Government will accept this interpretation
as correct in the premises and readily assent to treat Haberacker as
an American citizen.
" With reference to the suggestion in your dispatch whether Haber-
acker is really held to service against his will, I w'ould say that his
case was presented to the Department by his brother and strongly
urged for immediate action. It has since that time also been the
subject of repeated inquiry by the member of Congress representing
the district where Haberacker's family resides. Until the contrary
appears, therefore, the Dej^artment is bound to believe that he is so
restrained. But it is only necessary to request that he be released
if he so desires. The opportunity for that having been given, he of
course may avail himself of it or not as he chooses."
Mr. Wharton, Act. Sec. of State, to Mr. Phelps, inin. to Germany, March
26, 1891, For. Rel. 1891, 507.
" The undersigned, replying to the note of the 20th of April last
(F. O., No. 211), has the honor to inform the envoy extraordinary
and minister plenipotentiary of the United States of America, Mr.
William Walter Phelps, that the Royal Bavarian Government has
made a renewed and thorough investigation of the case of John
Haberacker, but finds no reason for discharging him from the
Bavarian army.
"The Bavarian Government is guided in this by the following
considerations :
"According to the treaty of May 26, 1868, subjects of the Kingdom
of Bavaria are to be regarded as Americans only when they become
' naturalized ' citizens of the United States of America and have
resided in that country uninterruptedly for five years. As only the
latter of these preliminaries has been performed, it can not therefore
be admitted that Haberacker was naturalized in America.
" Under Title XXX. of the Revised Statutes, headed ' naturaliza-
tion,' the manner in which the naturalization of foreigners is to be
effected is determined, and in section 216.5 it is expressly stated that
this is to l)e done as prescribed therein " and not otherwise." True,
it is stated in section 2172 that minor children of persons duly natu-
§414.] EFFECT OF PARENTS ' NATTJKALIZATION. 479"
ralized are to be regarded as American citizens; but if, on this
account, Haberacker's personal naturalization would not be required,
it would in all events be necessary that his mother at least had
become naturalized. But even this is not the case.
" Haberacker's mother became an American citizen by her mar-
riage with an American citizen, according to section 1094 of the
Revised Statutes. This legal provision can not, howcA^er, be regarded
as a special manner of naturalization. It is not to be found in Title
XXX. of the Revised Statutes, headed ' naturalizaticm,' but, as is the
case with section 1993, in Title XXV.,- headed ' citizenship.' In the
envoy's note above referred to it is expressly stated that section 1993
is not a part of the American naturalization laws, and in no wise
applies to naturalization. The same must be said of section 1994.
" If the word ' naturalized ' had been omitted in the treaty of 1868,
the above section might perhaps apply to a case such as that now
under consideration. This view is debarred by the express use of
that word, and it could hardly have been thought of when the treaty
was negotiated. For, according to the principles of xVmerican law —
which in this instance are precisely the same as the German — the
marriage of an American woman to a foreigner can not deprive the
children of her first marriage of their American citizenship.
" From this standpoint it amounts to nothing that Haberacker,
according to American decisions, is regarded as an American citi-
zen. It is enough that he did not become a 'naturalized ' citizen of
the United States."
Freiherr von Rotenhan to Mr. Phelps, Dee. 1, 1891, For. Rel. 1891, 521.
" The full meaning of such a contention [as that made in the fore-
going note] is worthy of notice. If Haberacker is not a naturalized
American citizen, it is simply because his mother is not. If she is
not, then none of the Avives of former subjects of Bavaria naturalized
in this country are naturalized citizens and entitled to the protection
of the treaty; and its intended scope would be most seriously reduced.
" The inference drawn from these words, ' and not otherwise,' is a
superficial one, which an understanding of their liistorical origin
ought to dissipate and the decisions at least completely negative.
Title XXX. of the Revised Statutes, relating to naturalization, is
based upon the act of Congress of the 14th of April, 1802. That act
began as follows :
" That any alien heing a free white person may l)e a<hnitte<l to I)e(onie a
citizen of the United States, or any of tlieni, on tlie following conditions, and
not otherwise.
"The foregoing language was substantially copied into section
2165, although between Ai)ril 14. 1802, and tiu> revision of lh(^ st-itntes
in 1878 there were many general and particular acts of naturalization
480 NATIONALITY. [§ 414.
which were not brought into Title XXX., and among them section 2 of
the act of February 10, 1855, which is embodied in section 1994 of the
Revised Statutes. But, giving the words ' and not otherwise ' full
force and effect, they do not necessarily conflict with other modes of
naturalization which the Revised Statutes point out. The same
authority which enacted section 2165 also enacted section 1994. It is
a fundamental rule of construction that such meanings are to be
attributed, if possible, to the different parts of a code of laws that full
effect may be given to the whole. That is accomplished in this case
by understanding the words ' and not otherwise ' as limiting the pro-
cedure requisite under the particular modes of naturalization pointed
out in Title XXX., and those modes only.
" AVholo classes of people, and all persons domiciled under certain
conditions within designated geographical limits, have been natural-
ized by acts of Congress, and even by treaties with foreign powers,
without any of the formalities provided for in Title XXX. Mr.
Chief Justice Fuller, in delivering the opinion of the Supreme Court
in the late case of Boyd vs. State of Nebraska, decided February 1,
1892, says:
" ' It is insisted that Boyd was an alien upon the ground that the
disabilities of alienage had never been removed, because he had never
been naturalized. Naturalization is the act of adopting a foreigner
and clothing him with the privileges of a native citizen, and relator's
position is that such adoption has neither been sought nor obtained
by respondent under the acts of Congress in that behalf. Congress,
in the exercise of the power to establish an uniform rule of naturaliza-
tion, has enacted general law^s, under which individuals may be
naturalized, but the instances of collective naturalization by treaty
or by statute are numerous.'
" The opinion cites numerous examples of such cases. Boyd, who
was born in Ireland, had been elected governor of the State of
Nebraska, to which office he was ineligible unless an American citizen.
Although he had not been naturalized in the manner pointed out in
Title XXX., Revised Statutes, still the Supreme Court held that he
had been otherwise naturalized, and that he was entitled to hold the
office to which he had been elected.
" There are two steps in the naturalization of Haberacker:
"(1) The naturalization of his mother by her marriage to Knauss.
Thisisj^rovided for in section 1994, which is not found in Title XXX.
"(2) His naturalization by virtue of the naturalization of his
mother. This is provided for in section 2172, which is a part of Title
XXX., and so there can be no question but that it is a naturalization
law.
" The whole matter, therefore, turns upon the point whether or not
an alien woman, by her marriage to an American citizen, becomes a
§414.] EFFECT OF PARENTS' NATURALtZATION. 481
naturalized citizen. That she becomes a citizen is admitted, and that
she becomes a naturalized citizen can be shown to be equally clear.
" The expression ' shall be deemed a citizen ' in section 1994, or, as
it was in the second section of the original act of February 10, 1855,
' shall be deemed and taken to be a citizen,' was the language of the
bill as it was reported to the House of Representatives on January
13, 1854, by the Judiciary Committee. Mr. Cutting, who was in-
structed by the committee to report the bill, in doing so said that the
section ' was taken in so many words, or in nearly so many words,
from the recent act of 1844, Victoria.' That statute (7 and 8 Victoria,
c. GG, sec. IG) provides:
" ' That any woman, married, or who shall be married, to a natural-
l)orn subject or person naturalized, shall be deemed and taken to be
herself naturalized, and have all the rights and privileges of a nat-
ural-born subject.'
" Mr. Cutting also said :
" ' The section, in my opinion, ought to be immediately passed, for
there is no good reason why we should put a woman into the proba-
tionary term required by the naturalization laws, nor to the incon-
venience of attending at the necessary courts or i)laces for the purpose
of declaring her intentions and renouncing her allegiance, nor. again,
put the husband to the expense of the proceeding.' (Cong. Globe,
first session, Thirty-third Congress, p. 170.)
" The intention of Congress was clearly to make the effect of the
marriage of an alien woman to an American citizen, as regards citi-
zenship, the equivalent of naturalization in the courts, or, as it is more
fully expressed in the English statute, that b}^ such marriage she
should be deemed and taken to be naturalized.
" If there were anj' doubt regarding the construction of this statute,
the decisions of the courts are exi)licit and, under our system of juris-
prudence, conclusive. The United States circuit court say, in Leonard
vs. Grant (5 Fed. Hep. IG) :
" ' The phrase " shall be deemed a citizen,'' in section 1994, Revised
Statutes, or as it was in the act of 1855, '* shall be deemed and taken
to be a citizen," while it may inii)h' that the person to whom it relates
has not actually become a citizen by the ordinary means or in the
usual way, as by the judgment of a competent court upon a i)r<)per
application and proof, yet it does not follow that such person is on
that account practically any the less a citizen. The word '• deemetl ''
is the equivalent of " considered " or " judged: " and therefore what-
ever an act of Congress requires to be " deemed " or '* taken " as ti-iie
of any person or thing must, in law, be considered as having \)oeu duly
adjudged or established concerning such person or thing, and liave
force and effect accordingly. When, therefore. Congress declares that
an alien woman shall, under certain circumstances, be " deemed '' an
H. Doc. 551— vol 8 31
482 NATIONALITY. [§414.
American citizen, the eft'ect, wlien tlie continf'^ency occurs, is equiva-
lent to her being naturalized directly by an act of Congress, or in the
usual mode thereby prescribed.'
"And Mr. Justice Harlan, in United States vs. Kellar, cited above,
says:
" 'The marriage of the defendant's mother with a naturalized citi-
zen was made by the statute an equivalent in respect of citizenship to
formal naturalization under the acts of Congress. Thenceforward
she was to be regarded as having been duly naturalized under the laws *
of this country.'
" The general purport of the decisions is that an alien woman of the
class of persons that can be naturalized is as effectually naturalized, to
all intents and purposes, by her marriage to a citizen as if by the judg-
ment of a competent court.
"A complete answer to the whole contention of the Bavarian Gov-
ernment is that there are only two classes of citizens known in our law,
viz, natural-born citizens and naturalized citizens. Mr. Chief Justice
Fuller, in the late case of Boyd vs. State of Nebraska, cited above, de-
fines naturalization to be ' the act of adopting a foreigner and cloth-
ing him with the privileges of a native citizen.' And Attorney-
General Black, in an opinion to the President, July 4, 1859, said :
" ' AMiat, then, is naturalization? There is no dispute about the
meaning of it. The derivation of the word alone makes it plain. All
lexicographers and all jurists define it in one way. In its popular,
etymological, and legal sense it signifies the act of adopting a for-
eigner and clothing him with all the privileges of a native citizen or
subject.' (9 Op. 859.)
" The publicists are to the same effect. Calvo says (Le Droit Inter-
national, fourth edition, par. 581) :
" ' La naturalisation est Tacte par lequel un etranger est admis an
nombre des naturels d'un Etat et par suite obtient les memes droits
et les memes jjrivileges que s'il etait ne dans le pays.'
" Where our law makes a child a citizen at tlie moment of birth,
whether that be because born within the United States (as provided
in section 1992 and in the fourteenth amendment to the Constitution)
or because born of American parents abroad (as provided in section
1993), such a child is a natural-born citizen. If, however, a person is
born an alien, there is no way by which he can be made a citizen
except by adopting him and clothing him with the privileges of a
native citizen, which is naturalization.
" The position of the Royal Bavarian Government is not
strengthened by the contention of Baron Kotenhan's note that by both
the (xerman and American law, which, he alleges, ' in this instance are
precisely the same,' the marriage of a German or American woman to
a foreigner can not dej^rive the children of her first marriage of their
§414.] EFFECT OF PARENTs' NATURALIZATION. 483
native citizenship. I refrain from any discussion Avhether the fore-
going is, in fact, American law, as in any event it is innnaterial to the
present case. The very cases contemphited l)v the treaty are those of
conflicting claims to the allegiance of the same j)erson. If by the hiws
of Bavaria every Bavarian that became a naturalized citizen of the
United States ceased, ipso facto, to be a Bavarian subject, and by the
laws of the United States every native American that l)ecame a natu-
ralized citizen of Bavaria ceased likewise to be an American citizen,
there would have been no occasion for the treaty. It was necessitated
by the very fact that it was or might be i)ossible for the same j)ersou
to be claimed as a citizen or subject of l)oth countries. By its provi-
sion it is wholly unimportant whether or not under Bavarian law
Ilaberacker at his naturalization in America ceased to be a Bavariau
subject. The treaty provides that, having been so natui'alized and
having resided within the United States uiiinterrui)tedly for five
A^ears, he shall be treated by Bavaria as an American citizen.
" In my first instruction to you regarding this case, Se[)tember <S,
1890, I said:
"'It is conclusive, therefore, under the laws of this country that
John Haberacker, iij)on the marriage of his mother to Knauss. in
1886, became a naturalized American citizen.'
" The foregoing was repeated, in its exact language, in Mr. (\)le-
man's note to the imperial foreign office on Sei)tember i^:>, 1S<,)(). At
the very beginning it was admitted, as it nnist have been, that the
determination of that question was dependent solely upon the laws
of the United States. I can not refrain, therefore, from e.\i)ressing
regret that the deliberate and well-considered statement of this (Gov-
ernment as respects its own law should not have been accejjfed by the
Imperial Government of Germany. By reason of this i)r()tiacted
discussion Ilaberacker has already been held to more than one-half
of the term of service to Avhich, as it is thought must now ])lainly
appear to its satisfaction, he was unlawfully adjudged. lie is en-
titled to be released therefrom, and you are directed to presiMit the
foregoing views to the imperial foreign office, with a renewed re(iuest
that action to that end may promptly be taken by the Royal Bavarian
Government."
Mr. Hlnino, Sec. of State, to Mr. I'liclps. miii. to Ccnii.uiy, March lit.
1802, For. Kel. 1801, 5122. .'-.24-.527.
"The luulorsifrned has the lioiior to iiif()nH the envoy extraordinary and
niinistor jjlenipotentiary of tlio Initcd States of America. Mr. William
Walter IMielps. that, accordinj; to information received from the
Royal Bavarian Govcrnmont. .John Ilal)<>rackcr dc'scrtcd on March .".1.
ISOl, and has not as yet heen cai»tni-ed.
"As the affair lias actually Ihhmi settled li<>reliy. the nndersJLrned assnm(>s
that he may refrain from a furtlur discnssion of the i|ii(>stions which
have arisen, hut hej;s to remark that the lioyal bavarian Govern-
484 NATIONALITY. [i? 415.
luent, after reiiewiMl iiivostipition, still inaintnins, as liorotoforo, tho
entire correctness of the views wlilcli liave l)een set forth in tlic
undersiKntHl's note of DoceuilK'r 1 last." (Freiherr von Uotonhaii
to Mr. Phelps, Nov. 28, 181)2, For, Rel. 18»2, 1!)!).)
In conseciuence of the position taken hy the Bavarian (Jovennnent, the
Department of State, thonph it wonUl ajrain nrjre its own view, is
unable in snch a case to j;ive an assurance of ininnniity in the event
of the return of the person to his original jiu'isdiction. (Mr. Adw,
Act. Sec. of State, to Mr. Bock, Auj;. 3, 18!)."j, 2(r, MS. Doni. Let. i'AiTy).
In connection with the Ilaberacker case, see that of Herman F. Buss,
the illegitimate child of a woman hy a man who was at the time
married, hut who afterwards secin-ed a divorce and married the
child's mother, subsequently to his natiu-alization. The word "chil-
dren" in the act of 1802 (R. S. 199:}) had been held in a Maryland
court to apitly only to legitimate children. It was stated in a note
of the German foreign otHc-e that a bastard was not legitiniate<l by
the subsequent marriage of the parents where tlie father was at the
time of the child's birth married. The embassy was instructed
to inquire into this point, luider German law. (Mr. Ilay, Sec. of
State, to Mr. White, amb. to Germany, No. 783, March 3, 1899, MS.
Inst. Germany, XX. G59.)
Two persons, sister and brother, one of age and the other a minor,
who were born in Canada to British subjects, but whose mother,
after their father's death and during their minority, married an
American citizen and brought them to the United States to live, were
entitled to obtain passports from the American embassy at Berlin.
Mr. Hay, Sec. of State, to Mr. Jackson, charge, Oct. 3, 1900, For. Rel.
1900, 527.
See, also, Mr. Hay, Sec. of State, to Mr. Harris, min. to Aust-Hung.
Jan. 22, 1900, For. Rel. 19(X), 13-15.
3. Adoption of Children.
§415.
" The only mode of adoption by which a private citizen can confer
citizenship upon an alien is that of marrying a female of foreign
birth."
Mr. Fish. Sec. of State, to Mr. Morris, Feb. 20, 1870, MS. Inst. Turkey.
II. 272.
A citizen of the United States can not, by adopting a child of for-
eign nationality, confer on such child the privileges of citizenship
in the United States.
Mr. Fish, Sec. of State, to Mr. Rand, Jan. C>, 1872, 92 MS. Dom. Let. 142.
" There are but three methods known to me for obtaining the rights
of an American citizen. Those entitled to such rights are:
^ 41C).] NATURALIZATION : ABSENT FAMILY. 485
"(1) Children born in the United States, and snbject to the juris-
diction thereof.
"(2) Chikh-en born of American parents whose fathers have re-
sided within the United States; and,
"(3) Those embraced by the naturalization law, which would
include those naturalized and their children minors at the time of
naturalization, if within the jurisdiction of this country.
" I can not see that this child born abroad presumably of foreig^n
2->arents is by the act of adoption under a State law Ijrought within
either of these provisions prescribing United States citizenship."
Mr. Frelinglmysen, Sec. of State, to Mr. Willis, M. C. Feb. 21, 1884, 150
MS. Doni. Let. 86.
" The naturalization laws of the United States contain no provision
as to the effect on the status of an alien minor of adoption by a citi-
zen of the United States; and it has been held that a citizen of the
United States can not, by adopting a child of foreign nationality,
confer on such child the privileges of citizenship in the United States.
But even supposing the general rule were otherwise, it would seem
unquestionable that, where the law does not permit the naturalization
of persons of a certain race, and thus excludes them from citizenship,
citizenship can not be conferred on them by adoption."
Mr. liayard. Se<'. of State, to Mr. McCartee. Oct. IT), ISSC. 101 MS. Doiii.
Lot. (*41.
Ill this case Mr. Bayard declined to issue a passi)ort to n Chiue.so woman
who was adopted in China by an American citizen and who desired
to go to Japan as a medical missionary in the service of an American
missionary society. Mr. Rayard stated that, in the view the DcjKirt-
ment took of the case, it was not important to incpiire as to tlie valid-
ity of the adojttion under Chinese law.
That adopticm does not have the effect of naturalization. se<' Mr. .Vdce,
Second Assist. Sec. of State, to Mr. (ioepel. S('i>t. IM. 1S.S,S. IC,;) MS.
Dom. Let. (i57.
The nationality of a servant does not follow that of tlie master. (Mr.
Wharton, .Vssist. Sec. of State, to Messrs. Macy & Co., .\i»ril 2.1. ISSi),
172 MS. Dom. Let. 588.)
IX. NATl RMjIZAT/OX IXTEIfXAT/OXALr.Y ] S EFFFAniVi: l.V TO
ABSi:\T FAMILY.
1. Married Womkn.
§ 410.
"I have to ackno^vledge the receipt of your letter of the 21st
ultimo in relation to the imjiediment interposed to the embarkation
from Italy of the wife and children of Mr. Dominick Valon. a native
of that Kingdom, now a naturalized citizen of the United States.
486 NATIONALITY. [§ 416.
It may l)o o|)on to question whether lh<' act of Confess of February
10, 1855, declarino^ to be a citizen any woman wlio mijjht be lawfully
naturalized and who hjis married a citizen of the United States, can
be deemed to have operated upon a woman who has never been within
the jurisdiction of this (lovernment. This doubt renders it inexpe-
dient to issue a passport to the lady in (juestion, as the law requires
that passports be issued only to citizens of the United States. The
facts of the case Avill, however, be communicated to our consul at
Naples with instructions to use his ^ood offices to procure the with-
drawal by the state authorities of all obstacles to the emigration of
Mrs. Valon and her children."
\Mr. Seward, Sec. of State, to Mr. Tinelli, April 1, 18(W, 78 MS. Dom. Let.
" Wliile the general rule is that the wife and minor children share
(lie fortunes of the husband and father, it is necessary that they
should in fact partake of his chiuige of domicil and allegiance, and
it has been held that the naturalization of an alien in the United
States does not require this Government to regard as American citi-
zens those members of his household who have never been within the
jurisdiction of the United States, but have remained in the land
of their original allegiance."
Mr. Rives. Assist. Sec. of State, to Mr. Smith. r)eeeiul>er 1,3, 1888, 171 MS.
Doin. Let. 82.
Although Attorney-General Williams, in his opinion of June 4,
1874, 14 Op. 402, referring to Kelly r. Owen, 7 Wall. 49(;, and to
certain other cases, stated that the authorities " go to the extent of
holding that, irrespective of the time or place of marriage or the
residence of the parties, an}'^ free white woman, not an alien enemy,
married to a citizen of this country, is to be taken and deemed a
citizen of the United States," " yet in view of the obstacles to claiming
for the laws, judicial decisions, and executive opinions of the United
States effective validity beyond the jurisdiction of the United States,
this Department i)rudently refrains from asserting its application to
the case of an alien wife continuing within her original allegiance at
the time of her husband's naturalization in the United States, inas-
much as the citizenship of the wife might not be effectively asserted
as against any converse claim of the sovereignty within which she
has remained. The result would naturally be a conflict of private
international law, wherein the state within whose actual jurisdiction
the wife remains might be found to have the practical advantage of
the argument."
Mr. Foster, Sec. of State, to Mr. Tlioinpson, iiiiii. to Turkey, Fel>. 9, 189S,
For. Rel. 189a, 598.
§ 417.] NATURALIZATION : ABSENT FAMILY. 487
Naturalization in the United States has no international effect on
the allegiance of the wife and children of the naturalized person
while they continue to reside in the country of origin.
Mr. Oroshiini, Sec. of Statf. to Mr. Watrous, .Tan. 2:\. ISn."., 200 MS. Doin.
Let. :UG; Mr. Olnoy. Sec. of State, to Mr. Atladourian. .Tan. 7. 1890,
207 MS. Doni. T^et. 47: to ^Ir. IMatt. .Tan. 14, ISOC. 207 id. 173; to Mr.
Sarklssiau, Fob. i:i, ISiU'.. id. (>S4: to Mr. Ilawloy, .Vpril Ki. ISIKJ. 209
id. .39H; to .Mr. Ilitclicock, .Tune S. 1S9(!. 210 id. '>:iH; to Mr. liaker.
.Tune 29, 189(5, 211 id. 140; Mr. Day, Assist. See. of State, to Mr.
.Telalian, Nov. 29, 1897, 22:} id. ,S.">.
This rule a fortiori applies to other relations, such as that of mother or
sister. (Mr. Olney. Sec. of State, to Mr. Torrey, .Tune 17, 1890. 210
MS. Doni. Let. 080; to Mrs. .Tames. July 18, 1890, 211 id. 410.)
2. Infants.
§ 417.
As has just been seen (supra, § 413), the laws of the United States
expressly provide that the naturalization of the parent shall operate
to change the nationality of minor children only in case the latter
have dwelt in the United States, in the sense heretofore explained.
A native of the canton of A^aud, who had been naturalized in the
United States, invoked the intervention of the United States in order
to secure the removal of his children to the United States. It ap-
peared that by proceedings in his native country, which took i)lace
prior to his change of allegiance, he was divorced from his wife, and
the custody of his children was assigned to her. Tie had demandetl
their custody from the authorities of the canton of A'aud. but with-
out effect. The De])artment of State said : '" The fact of your liaving
become a citizen of the United States has the efl'ect of entitling you
to the same protection from this Oovernment that a native citizen
would receive; but it cannot operate to destroy or to weaken in any
way the authority of the canton of Vaud over its native-born citi-
zens who have never been out of its jurisdiction, nor the exclusive
rights of the tribunals, to whom the administration of its laws is com-
mitted, to decide all questions which may arise between such citizens."
Mr. liuchanan. Sec. of State, to Mr. Kosset, Nov. 2."., 1S4."'), :!.". .MS. Doni.
Let. IV.V\
"As the (juestion as to the right of your daughter, who is a minor,
to leave her native country for the purpose of joining you in the
United States, appears to be one over which the authorises of the
former have exclusive jurisdiction, and as these ha\e decid(!il against
488 NATIONALITY. [§ 4lS.
that right, it is conceived that there is no occasion for the interference
of this Department in the matter."
Mr. Treseot. Assist. Sec. of State, to Mr. CniM'llc, Juno IS, ISfiO, 52 MS.
Doin. Let. 358.
3. Good Offices for EMiciKAXioN.
§418.
" Your letter of tlio Oth of Aj^ril, and the prior correspondence,
touching your request for tlie intervention of this (lovernment to
secure the emigration from the Turkish dominion of persons con-
nected with you by ties of family or relationship, and whom you left
in Turkey Avhen you came to the United States, has been maturely
considered and has been made the subject of consultation with the
Treasury Department, under whose supervision the laws to regulate
immigration are executed.
" Your request is one of a rapidly increasing number of a similar
character of which this Department has lately been the recipient.
In one or two instances the Department has granted the request to
the extent of permitting an unofficial mention of the case by the min-
ister, but further reflection, excited by the increasing number of
applications, has led to the conclusioji that intervention in such cases
is not compatible with our legislation or with the method provided
for its enforcement.
" In the first place, in order to assure itself that it was not solicit-
ing something directly contrary to the letter or the spirit of our laws,
the Department would have to make an investigation of the character
of the applicant for intervention and of his ability to take care of
those whose immigration he seeks. In the second place, it would be
essential to institute inquiries abroad concerning those whose coming
hither was desired, in order that it might not turn out that those
whom this Department had assisted to emigrate could not be per-
mitted to land.
" To these very grave and weighty reasons must be added the con-
sideration that it is not the part of this Government to solve questions
of allegiance or claims of duty for i)ersons who are subject to and
reside in a foreign country, and who are left in such country by one
who, knowing the laws of the land of his origin, comes to this country
alone.
" While the Government of the United States welcomes the honest
and thrifty immigrant, it does not go so far as to employ the methods
of diplomacy in an endeavor to secure the suspension of measures
which other Governments may adopt to prevent the emigration of
their subjects. On the contrary, this Government has in several of
§ 418.] NATURALTZATTON : ABSENT FAMILY. 489
its treaties expressly recognized the competency of Governments to
employ such measures."
Mr. Wharton, Acting Sec. of State, to Mr. Terzian, May 14, 1891, 182 MS.
Dom. Let. 9.
See also, Mr. Wharton, Act. Sec. of State, to- Sec. of Treasury, March
24, 1891, 181 MS. Dom. Let. 310.
The Department of State, December 15, 1892, instructed the
American legation at Constantinople to use its good offices to secure
permission for the family of Mr. Michaelian, a naturalized citizen
of the United States, to leave Turkey. The legation, having satis-
fied itself that Mrs. Michaelian intended to come Avitli her children
to the United States, issued to her a passport. The Department
stated that the legation in so doing appeared to have exceeded its
instructions, which contemplated intercession, so far as it might be
practicable and proper, with the Ottoman authorities, whose inaction
or prohibition was detaining Mrs. Michaelian and her children at
Constantinople at much expen.se and inconvenience to them. As to
the minor children of Mrs. Michaelian, the case, said the Department,
was clear, since they had never at any time dwelt in the United
States, and, therefore, were not citizens under sec. 2172 of the Re-
vised Statutes. The legation was not to withdraw the passport
which it had issued, but, in case the Turkish (Jovernment contested
the evidence of the passport, was to use its good offices as was
originally contemplated.
iNIr. Foster, Sec. of State, to ;Mr. Thompson, nun. to Turkey. Feb. 9, 1893,
For. Kel. 1S9.3, r>98.
See, also, same to same, Dec. l.^>, 1892, id. r)91. Altirmed in Mr. Gresham,
Sec. of State, to Mr. MVrrell, niin. to Turlcey, Auj;. 9, 1893, For. Rel.
1893, 0(50.
" The second branch of the Senate inquiry covers two distinct
matters. It is asked, in the first ])lace, whether the families of such
naturalized citizens residing in Turkey are ])ermitted to leave that
country and come to the United States. By 'the families of sucli
naturalized citizens ' the resolution is j)resumed to mean the wives
and minor children, who alone might, when within the jurisdiction
of the TTnited States, be held to acquire citizenship through the
naturalization of the husband or father.
" The naturalizati<m laws of the TTnited States being obviously
framed to permit the bestowal of the franchise of citizenship upon
certain persons of alien birth who are within its jurisdiction, and the
application of these statutes being intrusted to the judicial branch,
it is clear that they can not operate to naturalize by indirection or
by executive interpretation a person who is an alien by birth and
490 NATTONAIJTY. [§418.
origin, who has iiovor lu'cii within the jurisdiction of the United
States, and who at the time may be dwelling within a foreign juris-
diction.
'' The Turkish Government has on several occasions permitted the
emigration of the wives and children of Turkish subjects ^vho had
conio to the United States and here ac<|uir('d citizenship, leaving their
families behind them. It has even })ermitted the emigration of other
kinsmen of a degree not within the purview of the naturalization
laws of the United States. It has also, asserting a discretionary
power in the ])remises, refused to permit the emigration of the fam-
ilies of naturalized Armenians, even within the marital or filial
degree. The good offices of the United States minister are imiformly
exerted on all proper occasions to assist the emigration of such j)er-
sons, upon permission properly secured from the Turkish authorities,
and, when funds have been assured to pay the journey, he has assisted
their departure. He has likewise assisted the coming to the United
States of the wives of citizens of Armenian origin, who, being in this
country at or subsequent to the naturalization of their husbands,
have returned to Turkey; and of the children of such citizens, born
abroad subsetpient to the naturalization of the father or who may
have acquired American citizenship by actual presence in the United
States subsequent to the father's naturalization, and in such instances
permission for the families to emigrate has been demanded as of
right. These latter instances, however, are relatively few in number
compared with the cases in which good offices have been exerted,
Avith varying success, to procure the emigration from the Turkish
dominions of the kindred of a naturalized Armenian, including the
parents, brothers, and sisters, and even relatives of remoter degree,
who could not become citizens of the United States except by indi-
vidual naturalizaticm."
Report of Mr. Olney, Sec. of State, to the President, .Tan. 22, ISnc, iu
response to an inquiry of tiie Senate " first, whether naturnlizecl
citizens of the United States of Armenian birth are allowetl to visit
Tnrliey on business or lo visit their fannlies. and whetlier United
States j)assports lield l)y tlieni are X'ecognized l)y tlie Turicisli Gov-
ernment ; secondly, wlietlier the families of such naturalized citizens
residinjj in Turkey are permitted to leave that (-(mntry and come
to tlie I'nited States." (S. Doc. 8:5, 04 Cong. 1 sess. ; For. Rel. hSO.J,
II. 1471-1473.)
The Department of State declined to solicit pennission for the emigration
from Turi<ey of a minor itrother. (.Mr. Moore, .Vssist Sec. of State,
to Mr. (Jreene, May 14, and May 24, 1808, 228 MS. Dom. Let. 48(;,
227 id. .580.)
Personal good offices \ver<» used in the case of an intended wife. (Mr.
Hay, Sec. of Stat«>. to Mr. Straus, min. to Turkey, Feb. 20, 1800, .MS.
Inst. Turkey, Vll. .-'.22.)
§ 418.] NATURALIZATION : ABSENT FAMILY. 491
It was stated that a request might be made " tliat permission l>e granted
as an act of grace" for tlie emigration of the wife and minor chil-
dren of a person who liad only made a declaration of intention. (Mr.
Hay, See. of State, to Mr. Sulloway, Feb. 4, I'.MJl, L'.'iO MS. Dom.
Let. 53G.)
Oct, IC), ISDG, the American minister at Constantinople advised bis
Government that he had obtained a telegraphic order from the Tnrk-
ish Government to jx'rmit the dejiartiire for the United States, with
safe-conduct to the seajjort, of all the native Armenian women and
children in wliose behalf he had made application, whose husbands
and fathers Avere in the United States. The l)ei)artinent of State
replied that the hunuine and considerate action of the Turkish (Jov-
ernment in the matter was " most cordially appreciated."'
During Novenil)er and December, 1890, Mr. Terrell re]oorted the
departure to the United States of numerous wives and cliildren of
naturalized citizens of the United States,
For. Kel. 180(). 024, 925.
"After long insistence and many unfulfilled promises on the part of the
Turkish Government. i)eremptory orders have at last Itocn itrociuHMl
to i)ermit the emigration of the wives and children of a numl)er of
men of Armeinan origin now in the United States, aiid many of them
have already departed from Turkey. This friendlj'' act of deference
is api)reciated. and it is trusted that no further obstacles will be
interposed to the escape of these unfortunate people from the i)erils
which unhappily appear to menace thoir race in the Ottoman territo-
ries." (Report of Mr. Olney, Sec. of State, to the President. Dec. 7,
18!)(), For. Rel. ISKC. Ixxxix.)
The nnnister of the United States having on several occasions Ikm'u
embarrassed by the arrival at ('()nstantino]>le cf tlie wives and minor
children without the meiUis of pursuing tli(>ir journey to the United
States, the l)ei)artment of State adopted a rule requiring the de])()sit
with it of sulticient fluids in the form of a draft on London. i)ayai»Ie
to the order of tlie Unit(>d St;ites consul . general at Constant iiiopU'.
to defray the expenses of their journey to America, as a condition
precedent to tlie use of good ollices. or. in lieu of sucii deposit, a satis-
factory assiu'ance that the ]H'rsoiis in (ineslion had suliicient funds
for the i)nrpose. (^Mr. Hay. Sec of State, to Mr. Straus, iiiin. to Tur-
key. Feb. IM. IS!)!). MS. lust. Turkey. VII. :V_>;? ; Mr. Adee. Acting Sec.
of State, to Mr. Tenikian, Aug. 1.".. 1000. 247 .MS. Dom. Let. 17."»;
same to Mr. (Jriscom, Sept. 14, 1!)(lO. .MS. Inst. Turkey, VII. 4(;S: Mr.
Hill, Assist. Sec. of State, to Mr. .Nakasli. Oct. :{L 1!)(I0. 21S MS. Dom.
Let. 58S; Mr. Hay. Sec. <if State, to .Mr. Xakasii, Fel>. D. r.Mil. 272
MS. Dom. Let. 24:',; Mr. Hill to :\lr. .Mahoney, \ov. 2:'., 1!)00. 21!) MS.
Dom. Let. 22:5: Mr. Hill. Acting Sec. of Stat(>. to Mr. r.aboyaii. .Ian.
7. 1001, 2.".0 MS. Dom. Let. 100: Mr. Hill. Assist. Sec. of Stat(>. to Mr.
Kaproulian. Felt. 1. 1001. 2.".0 MS. Dom. Let. 400; Mr. Hay. Sec. of
State, to Mr. Sulloway, Fei». 4. 1001. 2.")0 .MS. Dom. Let. :>:',*'>.)
A request was made for (he interposition of tln^ (lovcM-umenl of the
United States to obtain permission for the return to the United States
492 NATIONALITY. fS'*^^-
of the wifo and two minor childiHMi of a naturalized American citizen
of Turkish oritjin, residing; at Palorson, N. J. It ajjpeared that the
wife, after her husband's naturalization, went on a visit to Turkey,
taking with her her two minor children, who were horn in the United
States. The Department of State replied that, as the wife had Ikhmi in
the United States " at the time of and subscciuent to her hushaiuFs
naturalization, and her children having been born in this country,"
the American minister at (Constantinople would be instructed " to
demand as of right i)ermission for them to leave Turkey."
Mr. Ohiey. Sec. of State, to Mr. Van Iloveiiberj,'. Feb. '2n, 181)(>, 208 MS.
Doin. Let. 17.S.
See, in this relation, Mr. Olney. See. of State, to Mr. McColluni, Oct. 18,
1805, 205 JSIS. Doni. Let. .'{89.
In 1895, Mr. Cinnamon, of Taylor, Texas, requested the good offices
of the Government of the United States to obtain for his family, and
also for his brother-in-law and the hitters family, permission to
leave Russia. The minister of the United States at St. Petersburg,
under instructions of the Department of State, requested the neces-
sary permission for the Cinnamon family, but merely transmitted
Mr. Cinnamon's request in regard to the others, since they were all
Russian subjects. The Russian Government replied " that, accord-
ing to the laws in force, all requests of this nature should be ad-
dressed directly, under the form of petitions, signed by those inter-
ested themselves, to the ministry of the interior if it is a question
of nationality, or to the governor of the respective province if it is
a question of obtaining a passport to go abroad."
For. Rel. 1805, II. 1122-112.3.
X. PROOF fi OF XAT/OXALITY.
1. EVIDENCKS OF CITIZENSHIP.
§419.
Passports, certificates of naturalization, registration in the consu-
lates of the United States, and service on ships sailing under the
flag of the United States, were " alike accepted by our c(msular offi-
cers and the Spanish authorities as prima facie evidence of citizen-
ship establishing the rights of the claimants to the treatment secured
to our citizens under our treaties and protocols with Spain."
Report of Mr. Olney. Sec. of State, to the Pre.sident. .Tan. 22, 1807. For.
Kel. 180(5, 74(), in relation to arrests made by the S|)anish juithorities
in Cuba since the break inj; out of the insurrection. Feb. 24. 180."».
The same report is i)rinte(l in S. Doc. 84. .54 Con«. 2 sess.
For numerous decisions as to tlie nviuisite i)roofs of citizi'iishij). see
Moore, Int. Arbitrations, III. 25151-2537.
§ 420.] PROOF or NATURALIZATION, 493
As to residence at time of annexation, see Moore, Int. Arbitrations, HI.
2542.
As to oflieial recognitions as evidence of citizenshij), see Moore. Int.
Arbitrations, III. 2543-2547; and, as to the performance of political
acts, see id. 2547-2548.
A person 23 years of age, who was born in Hayti, who had never
been in the United States and who expressed no intention of coming
thither, applied to the United States k^gation at Port an Prince to
be registered as an American citizen. He chiimed citizenship
through his father, who left the United States forty-one years before
and had never returned, and whose only evidence of American citi-
zenship Avas a pajDer under the seal of the State of Louisiana, signed
by the governor thereof, in AvJiich he was styled a resident of that
State. Held, that the application for registration was properly
declined.
For. Kel. 1901, 280.
2. Proof of Naturalization.
(1) the judicial record.
§420.
The proper evidence of naturalization is the judicial record, or an
exemplified copy of it, and parol evidence is admissible only in case
of the loss or destruction of such record.
Green v. Salas, 31 Fed. Kep. lOG ; Slade -v. Minor. 2 ('ranch C. C. 130;
Drydeu v. Swinburne, 20 AV. Va. 80; I'eople r. McXally, 50 IIow.
(N. Y.) Pr. 500; Bode v. Trimmer, 82 Cal. 513; Prentice r. Miller,
id. 570.
This rule applies to a woman who alleges citizenship through the natu-
ralization of her husband. (Belcher r. Fanvn. 20 I'ac. 701.)
. • A mere certificate of the clerk of the court, stating that the ap])licant had
been naturalized, is not competent proof, and cannot be aided l)y parol
evidence. (Green r. Salas, supra.)
A passport issued by the Department of State is not competent judicial
proof of citizenship. (In re C}ee Hop, 71 Fed. Uep. 274; see, also,
Urtetiqui r. D'Arcy. 0 Pet. 002.)
As to proof of citizenshi]) in the case of locators of mines, see Hannner r.
Garfield Go., 130 V. S. 201.
The fact that an alien assumed to make leases and ])erform otlier acts
which oidy a citizen might do is of no i)robative force in establishing
his naturalization. (Kichardson r. Amsdon (1003), 85 N. Y. Supp.
342.)
Proof that defendant on a certain day was admitted to citizenship of the
United States and took the usual oath is i)rima facie evidence that
he was previously an alien. (Peacock c. United States (1003), 125
Fed. Hep. 583, 00 C. C. A. 380. )
494 NATIONALITY. [§ 420..
It is not ncfossarv that the judginent of naturalization should
oxi)rossly stativ that the rcHjuisito i)rior declaration of intention was
made; and it is not to be implied from the absence of such a state-
ment that the declaration was not made.
Mr. Hay. Sec. of State, to Count Viiici, ItMli.iii cliiirK*''. Sept. I. l.S5«>. For.
Uel. I8!H). 4'tK 4".!); citing,' Stark v. Cbesaiwake Ins. Co., 7 Cninch.
420; Mutual I?onofit Life Ins. Co. r. Tlsdale, J)l U. S. 2:i8: Campbell
r. Gordon, (i Crancli. 17!>.
McC, a native of Ireland, was admitted to citi/x'nship of the
United States at San Francisco in 1S()4. In the record of his natu-
ralization it was recited that he came to the United States in 1852.
He sul)se<iuently became convinced that he ari'ived in 1858 instead of
1852, and. a (luestion having been raised as to the validity of his
natui-alization, applied to the court to renaturalize him, if in its
opinion his former naturalization was defective or o})en to (juestion.
The court held that the judgment of naturalization was not impaired
by the inaccurate statement of fact in the recital, it appearing that
the conditions of the law, which reqidred only a live years' residence,
had in any event been fulfilled.
In re INIcCoppin. .1 Sawyer C. (-. (;.".().
Where the name of a person is misstated in a certilicate of naturalization.
the true name may he proved hy i)arol ; nor does the inclusion of
two names in the record, thoufj;li an informality, vitiate it (Hehrens
meyer r. Kreitz, 185 111. 591, 2G N. E. TOi.)
A person who ol)tains a legal change of name is not entitled to have his
certificate or record of naturalization changed accordingly. (In re
Nigri, ;{2 Misc. .•592, (»; N. Y. S. 1M2.)
Where a court, by way of amending its records, entered a judg-
ment of naturalization nvnc pro tunc, thirty-three years after judg-
ment was alleged to have been rendered, but no entry or memorandum
of any kind of the alleged original judgment existed, it was held that
the order was invalid, the power to amend not involving the power to
create. ,
(Jagnon /•. Unil(>d Stales (1904). 19:5 V. S. 4."il.
" The recitals of the certilicate of natm-alization, a copy of which
accompanies your dispatch, on this jjoint are: ^ That he resided in the
United States three years next preceding his arriving at the age of
twenty-one years, and has continued to reside therein to this time;
and that he has resided within this State for one year preceding this
date, and that he is twenty-one years of age, and that he has resided
five years within the United States, including the three years of his
minority.'
"I am of o|)iirK)ii (hat these coudilions amount to a fulfillment of
the recpiirementsof the law in (he classof cases to which thatof II
§421,] PROOF OF NATURALIZATION. 495
belongs. Statutes eiilargiiio- or confcrrino- personal rights are to be
construed liberally, in contradistinction to those wliich al)ridgt> or
take away such rights. This liberal rule of judicial interi)retati()n,
in harmony as it is with our system of (iovernment, has been, so far
as I am aware, uniformly respected and followed by the executive
branch of the Government."
Mr. Fish, Sec. of State, to Mr. Davis, Dec. liU, INT."), .MS. Inst., (k'rui.
XVI. i:«.
In the absence of proof that an alien has become a citizen of the
United States, his original status is i)resumed to continue: the burden
of proving naturalizaticm rests upon the party that alleges it.
Ilnuenstein v. Lynliaiu, 100 U. S. 48:?.
Evidence that a person born in the United States, of parents who
were citizens thereof, came to Texas while it was ])art of Mexico.,
Avith his mother, a widow, in 1(S;U, left there in 18^55, Avas married
in Louisiana, and was again living in Texas fnun 1851) to 18()8, does
not prove that he became a citizen of Mexico or re(|uire any evidence
from defendant to the contrary; plaintiff's right being based on the
claim that such i)erson did become a Mexican citizen.
Ferguson v. John.son (Tex. Civ. Aj)!).), IMi S. W. i:>8.
Where an inquiry was made of the Department of State in regard
to the citizenship of a person at one time minister resident of the
United States to Costa Ivica, the Department replied: "The ])apers
on the Department's files in su})port of Mr. Kiotte's ai)i)licati()n for
appointment mention him as a naturalized citizen of the Ignited
States. His certificate of naturalization is not, however, among
them, and in its absence the Department could not say that he was a
citizen of the Vnited States, although, as aliens are not a])pointe(l
to our diplomatic service, the presumption is that the iippointing
power at the time was satisfied that he was such. I enclose, as
recjuested, a certificate of ^Nfr. Riotte's services as minister resident."
Mr. Sherniiui, See. of State, to Mr. Uirkins, April :•(», 1S!>S. L'2T MS. Doni.
Let. 4(;2.
(2) I>OSS OK nKSTUicnoN Ol" kkcoud.
§ 421.
B., at a general election held in Nebraska in Xovember, 1800.
received the hi<>hest numbei- of votes for o()veriioi".
ftuestion of fact, t t ■ , • , i , , i <«■ . i i . i
Ills title to the othce was contested on tlie streiigtii
of the clause of the State constitution which declares that no person
41)G NATIONALITY. [§ 421.
shall l)c eli<ril>li' to the oflice of governor who shall not have been
for two years next preceding his election a citizen of the United
States and of the State.
B. was born in Ireland in 1834 of Irish i)arents. He was brought
to the United States in 1844 by his father, in regard to whom the
following facts a])})eared :
lie settled in Ohio, where in 1849, in a court of Muskingum county,
he made a declaration of intention to become a citizen of the United
States; in 1870 he was elected a justice of the peace, an office which
he held for several years; he also held for several years another
office, under the constitution and laws of the State; he exercised the
rights of a citizen of the United States and voted at elections; but
in October, 1890, on applying for registration to vote, under a new
law which required the production of citizenship papers, he was
unable to find any certificate or record of his naturalization, and, on
application to the court in wdiich he had formerly made- his decla-
ration of intention, he was admitted to United States citizenship.
The facts in regard to B. were as follows: On attaining his
majority, in Ohio, he exercised the elective franchise; in ISSG he
settled in Douglas County, Nebraska, where in 1857 he was elected
county clerk; in 1864 he volunteered, was sw^orn in, and served as a
soldier of the United States to defend the frontier from an Indian
attack; in 18(56 he was elected a member of the Nebraska house of
representatives, and served one session ; in 1871 he was elected and
t>erved as a member of a State constitutional convention, and in 1875
Avas elected and served as a member of the convention by which the
State constitution then (1892) in force was framed; in 1880 he w'as
elected and acted as president of the city council, and in 1881 and
1885 was elected mayor of Omaha. From the time of his settlement
in Nebraska he voted at all elections, territorial. State, municipal,
and national. In assuming the various official functions wdiich he
discharged he took the necessary oaths, including the oath to support
the Constitution of the United States, and (prior to the admission of
the State) the provisions of the organic act under which the Territory
of Nebraska was created. He never was judicially admitted to citizen-
ship, except that, after his election as governor, when he learned that
his citizenship was questioned, he w^as, on a petition setting forth the
facts, declared and adjudged by the United States District Court for
the District of Nebraska to be in fact and in law a citizen of the
United States.
On an information to oust B. from the office of governor, it was
maintained by the relator that B's father never was naturalized and
never became a citizen of the United States while B. was a minor,
nor till 1890, when B, was 5() years of age; and that, as B. himself
had not been naturalized, he was not a citizen.
§ 421.] PKOOF OF NATURALIZATION . 497
In his answer, B., after referring to the declaration of intention
made by his father in 1849, and averring that the hitter had for forty-
two years exercised all the rights and discharged all the duties of a
citizen of the United States, and was " in all respects and to all
intents and purposes a citizen of the United States and of the State
of Ohio," alleged, " on information and belief, that prior to October,
1854, his father did in fact complete his naturalization in strict
accordance with the acts of Congress known as the ' naturalization
laws ' so as to admit and constitute him a full citizen of the United
States thereunder."
To B.'s answer the relator demurred.
Held (Mr. Justice Field dissenting on grounds of jurisdiction) —
1. That, while the usual proof of naturalization is a copy of the
record of the court, yet, " where no record of naturalization can be
produced, evidence that a person, having the requisite qualifications
to become a citizen, did in fact and for a long time vote and hold
office and exercise rights belonging to citizens, is sufficient to war-
rant a jury in inferring that he had been duly naturalized as a
citizen." Blight v. Rochester, 7 Wheat. 535, 54G; Hogan v. Kurtz,
94 U. S. 773, 778 ; and the constitution of the State of Ohio, by which
only citizens of the United States are entitled to vote, or to hold office,
2. That the allegation that B's father did, prior to 1854, complete
his naturalization under the laws of the United States necessarily
implied that he had been duly naturalized before a court as required
by those laws, and, together with the other allegations in connection
with which it was made, would, if traversed, have warranted a jury
in inferring that B's father became a citizen of the United States
before October, 1854, and consequently that B. himself Avas likewise
a citizen ; and that for this reason, without regard to any other ques-
tion argued in the case, B. was entitled to judgment on the demurrer.
Boyd r. Thayer (1892), 143 U. S. 135.
Evidence that a iiiuii had lived in the I'nitod States for forty yoars, tliat
he voted for twenty-flve years, and that a person of liis name Iiad
been naturalized is sulticient to show that ho was a naturalized
citizen. (Ryan v. Egan, 156 111. 224, 40 N. E. 827.)
That decedent, an alien by birth, came to the United States in 18(!5 and
lived here until his death in 1899, during which time he participated
in national and State elections, and at his death held a li(iuor-tax
certificate, which could lawfully be issued only to a citizen, is suffi-
cient to show prima facie that he had been in fact naturalized and
was a citizen at his death. (Fay v. Taylor, ()3 N. Y. S. 572. 31 Misc.
Rep. .32.)
A man who came to this country with his father when a ciiild; whose
father, since dead, told him he was naturalize<l, and votcnl as a citi-
zen; who has himself exercised the rights of a citizen in the i)Mrish
without question for thirty years, is uot to be declared disqualifled us
H. Doc. 651— vol 3 32
498 NATIONALITY. [§ 421.
u grand juror l)ecause ho can not procure his father's naturalization
papers, and, owing to his father's residence in several States, does
not know where to find the judicial record thereof. (State v. Guil-
lory (La.), 10 So. 701.)
Se<«, also. Cowan v. Prowse (Ky.), 19 S. W. 407; Kadlec v. Pavik, 9 N. D.
278, 8:{ N. W. 5.
Wliere it is jilleged that a record of naturalization has been burnt
or otherwise destroyed, the Department of State
Practice of Depart- j^^jivos it to the courts to hear the evidence of such loss
ment of State. i i -^
and remedy it.
Mr. Bayard, Sec. of State, to Mr. Ferguson, Feb. 2, 1887, 163 MS. Doin.
Let. 21.
" The proper course for a person seeking to establish his naturaliza-
tion by other than the ordinary proofs is to resort to the judicial
branch of the Government, which is charged with the duty of natu-
ralizing aliens, and which is invested with appropriate powers for
investigating and determining matters of fact which are essential to
the decision of the question of acquired citizenship."
Mr. Blaine, Sec. of State, to Messrs. Birdseye, Cloyd & Bayliss, May 9,
1889, 173 MS. Doni Let. 10. See, also, same to same, June 22, 1889,
id. 432.
Mr. Blaine, Sec. of State, to Mr. Towusend, February 18, 1890, 170 MS.
Dom. Let. 443; Mr. Adee, Second Assist. Sec. of State, to Mr.
Emanuel, ^pril 5, 1889, 172 MS. Dom. Let. 387.
In the case of Campbell v. Gordon, 0 Cranch, 170, there was a certificate
of naturalization to prove citizenship. (Mr. Blaine, Sec. of State,
to Mr. l»ope, April 29, 1890, 177 MS. Dom. Let. 358.)
" It has always been held to be beyond the j^ower of the Depart-
ment to pronounce a judgment that a person is a citizen of the United
States by naturalization in the absence of judicial proof of the fact.
The records of the Department do not disclose a single case in which,
where this question was involved, the Secretary of State did not
decline on the ground of lack of authority to take up the question of
naturalization independently of the judicial records. The Depart-
ment acts upon the judgment of the courts, which -exercise jurisdicti(m
in such matters and are invested by law with appropriate jjowers for
that purpose."
Mr. Blaine, Sec of State, to Mr. Pennj'packer, June 20, 1890, 178 MS. Dom.
Let. 95.
In the case of a widow, w'ho was abroad, and desired a passport, but
was unable to produce as evidence of her citizenship the certifi(;ate of
naturalization of her late husband, it being stated that the document
had been lost, the Department of State said : " The sufficiency of the
§422.] IMPEACHMENT OP NATURALIZATION. 499
secondarj^ evidence of her citizenship must be determined by the
diplomatic officer to whom she may apply for a passport, but, when it
is clearly shown that the certificate of naturalization or a certified
copy thereof cannot be i:)rocured, the Department accepts secondary
evidence the nature of Avhich is governed by the circumstances sur-
rounding each case."
Mr. Olney, Sec. of State, to Mr. Rrice, Dee. 0, 189G, 214 MS. Dom. Let. 059.
With reference to the case of certain persons who asked for intervention
in respect of tlie seizure of a vessel, and wlio claimed citizenshli)
throujih the naturalization of their fathers, Mr. Olney said: "Record
evidence of the naturalization of their fathers is of course the best
evidence, but is not the only evidence admissible. If you can pi'ove
by the testimony of witnesses who know the fact that their fathers
were naturalized, such evidence will be received and considered.
Evidence that their fathers exercised the rights of citizenship, how-
ever, is another thing. What is wanted is secondary proof of the
facts of naturalization." (Mr. Olney, Sec. of State, to Mr. Finney,
April 14, 189U, 209 MS. Dom. Let. 347.)
3. Impeachment of Naturalization.
(1) BUiJcs of municipal courts.
§422.
The decree or order of naturalization cannot be impeached collat-
erally.
Campbell v. Gordon, 0 Cranch, 170; Spratt v. Spratt, 4 Pet. 393; The
Acorn, 2 Abb. (U. S.) 434; United States r. Gleason. 78 Fed. llep.
396; Ackerman r. llaenck, 147 111. 514, 35 N. E. 381; Andres r.
Circuit Judge, 77 Mich. 85; State v. MacDonald, 24 Minn. 48; In re
Fadden, 3 Lack. Leg. N. 74; Williams, At. Gen., 1874, 14 Op. .5(«).
The record must show, however, that the necessary proceedings were
taken. (Matter of Desty, 8 Abb. (N. Y.) N. Cas. 250; Green v. Salas.
31 Fed. Kei». 10(!, and cases cited.) Rut its erticacy is not impaired by
inaccurate recitals (In re Mc('opi)iii, 5 Sawyer, C C. <>:U): In re
Coleman, 15 Hlatch. 4(X>) ; and it may be amended nunc jtro lime to
correct clerical errors. (State r. Macdonald, 24 Minn. 48.) Kut the
power to amend does not include the power to create a record.
(Gagnon r. United States (1904). 193 U. S. 451. See supra. S420.)
A judgment of naturalization, void on its face, may t)e collatei-ally
attacked in a subse(]uent j)roceeding by the alien to be admitted to
l^ractice as an attorney.
In re Yamasiiita (1902), 30 Wash. 234, 70 Pac. Kep- -^■'^2. See supra,
S ;',8;{.
Provision is made for the criminal prosecution of false personation,
false swearing, and forgery in naturalization procct'dings. as wAl as
of the uttering, selling, and use of false naturalization papers.
500 NATIONALITY. [§ 422.
Rev. Stat. §§r>:«)r.. ->42^rA-2'.) ; riiiUtl states c. I.<*hnian, :{9 Fed. Itep.
7(«: United States r. ItaKazzini, 50 Fetl. Uep. !>2:{; UiiittHl States v.
Tyneii. 11 Wall. KS; UiilttHl States v. (Jrottkaii, .'{() FimI. Rep. 072,
eitiiiK State r. Ilelle, 2 Hill (S. C), 21)().
§ 5424, R. S., does not render punishable the tittering of a forged
naturalization certificate by a person other than the person applying
for such certificate or appearing as a witness for the person so ap-
plying.
Uuited States r. York (1904), 131 Fed. Rep. 323.
An individuar cannot maintain an action to set aside a naturaliza-
tion on the ground that it was procured by fraud, the wrong being
to the State and not to the individual.
McCarran v. Cooper, 102 N. Y. 054, 57 N. E. 1110 ; McCarran v. Cooper,
44 N. Y. S. 095, 10 App. Div. 311 ; Iii re McCarran, 29 N. Y. S. 582,
31 Abb. N. C. 410, 8 Misc. 482; Pintscb Co. v. Bergin, 84 Fed.
Rep. 140.
" The vacation by judicial decrees of fraudulent certificates of
natiiralization, upon bills in equity filed by the Attorney-General
in the circuit court of the United States, is a new application of a
familiar cMjuity jurisdiction. Nearly one hundred such decrees have
been taken during the year, the evidence disclosing that a very large
number of fraudulent certificates of naturalization have been issued."
President Harrison, annual message, Dec. 1, 1890. See In re McCoppiu,
5 Sa\Yyer C. C. 030; United States v. Norsch, 42 Fed. Rep. 417;
Pintscb Co. v. Bergin, 84 Fed. Rep. 140 ; United States v. Kornniebl,
89 Fed. Rep. 10; In re Sbaw, 2 Pa. Dist. Rep. 250.
It was held, liuwever, in 1S9S, by Judges I^aconibe and Sbipnian, Judge
Wallace dissenting, in a similar suit by the United States, on the
strength cf United States r. Throckmorton, 98 U. S. 01, 00, that the
naturalization would not be set aside solely on the ground that it
was procured by the perjured testimony of the pei-son to whom it was
granted. (United States v. Gleason, 02 U. S. Apj). 311.) But it may
be doubted whether the rule, as laid down in United States v. Trock-
morton, as to the determination of litigattnl issues by a judgment
infer partrs, is applicable to the so-called judgment in a naturaliza-
tion ])roceeding. The principle of /r.y jiKlicata appears to be theoretic-
ally inapplicaltle to a decree of natiu'alizatlon, which is in no wise
a judgment terminating a preexisting controvei'sy. but which is, on
the contrary, the basis of constant and repeated future claims on the
part of the beneficiary to the rights and i)rivileges of citizenshii» and
the prote<-tive action of the Government. See infra, p. 502.
It has lately been held by a Texas court that that State has not sufficient
interest, in the legal sense, to qualify it to bring an action to set
aside a fraudulent decnv of naturalization in a State court. (Pet-
ersen r. The State. Court of Civil Api)eals, .Tune 27. 1!H»5, 89 S. W.
81.) It is a fact, however, that the citizenship gained by naltu'aliza-
tion qualifies the Individual to vote at elections in the State and to
§ 423.] IMPEACHMENT OF NATURALIZATION. 501
hold the most imiHjrtant iniblie offices. It is stated, in the opinion
of the court, that the decision was made without an examination of
the authorities, for which there appeared at the moment to be no
opportunity.
Certificates of naturalization o:ranted to Chinese against the pro-
hibition of the act of 1882 have been treated as void.
In re Hong Yen Chang, 84 Cal. 1(>3, 24 I'ac. Kep. 150; In re Gee Hop,
71 Fed. Rep. 274 ; McKeuna, At. Gen., 1897, 21 Op. 581 ; Mr. Blahie,
Sec. of State, to Mr. Rockwell, Dec. 12, 18!X), ISO MS. Dom. Let. 1.57;
Mr. Foster, Sec. of State, to Mr. Long. .Inly 18, 1892, 187 ^^IS. Dom.
Let. 277 ; Mr. Gresham, Sec. of State, to Mr. Rein, Aug. 30, 189.3, 193
MS. Dom. Let. 287.
(2) RULE OF INTKRNATIONAI. ACTION.
§423.
The Department of State possesses no power to vacate decrees of
naturalization; but it exercises, under the direction
lio^yadiatioii of nat- of the President, plenary jurisdiction over the con-
properly obtained. *'"<^t ot foreign rehitioiis. In tlie exercise or this
jurisdiction, the Department, as has often been held,
»vill, so far as any action of its own is concerned, treat as invalid a
cc^rtificate of naturalization that has been improperly obtained.
The grounds on which the Executive so acts have perhaps never
been stated more concisely, nor yet with greater clearness and pro-
fundity of reasoning, than by the Conunander Bertinatti, as umpire
of the Costa Rican Connnission, 3 Moore, Int. Arbitrations, 258(>-
2589.
C. was admitted to citizenship by the superior court of New York
Dec. 29, 1853, and on the strength of his certificate
' ' ■ he obtained from the Dei)artmeut of State a i)assport
and went to Prussia. A question having arisen with legard to him,
the legation in Berlin reported that he did not emigrate to the United
States till 1851, On inquiry of the conrt. tlie Department of State
learned that he was naturalized under the act of May 2(i. 1S24,
requiring a five years' residence. On these facts, the legation was
instructed that C. was "not entitled to protection as an Amt'rican
citizen," and that he should be recjuired to snrreiuler his passport.
Mr. Marcy, Sec. of State, to Mr. Vrooni. niin. to I'riissia. No. Hi. May
23, 18.>4, MS. Inst. Trnssia. XIV. 21.": s.-niie to .Mr. I.yiicli. .lerk of
the Superior Court of .New Vorlv. M.iy is. 1S.71. 42 MS. Doiu. Let.
432.
See, as to a case in Tin"lv(>y, Mr. Trescot, .\ssist. Sec of Slate, to Mr.
Miller. Sei>t. 2.'>. 18(;(». 'u', .MS. Dom. Let. 12i;. See. niso. Mr. Si'ward.
Sec. of State, to Mr. Hall. .Inly 17. 18C.7. 7(; .MS. Dom. Let. 4.S.J.
502 NATIONALITY. [H23.
"The record of naturalization ought certainly to be received as
•prima facie evidence of the facts which it recites. It is not, how-
ever, conclusive. Upon this point I give, for your information and
guidance, the following extract from an opinion of the Attorney-
General, under date of January 21, 1871, uj)on the (;ase of a natural-
ized citizen of German birth, submitted to this Department by our,
minister at Berlin :
" ' He was naturalized in the United States district court for Con-
necticut on the 27th day of March, 1809. The record recites that he
had resided constantly in the United States for more than five years.
If this recitation were conclusive, his right to protection under the
treaty would be established. The record establishes the general fact
of his naturalization and of his right to be recognized here as an
American citizen in all domestic transactions. But recitations in the
record of matters of fact are binding only upon parties to the pro-
ceedings and their privies. The Government of the United States
was no party, and stands in privity with no party, to these proceed-
ings; and it is not in the power of Mr. Stern by erroneous recitations
in ex parte proceedings to conclude the Government "as to matters of
fact.' "
Mr. Fish, Sec. of State, to Mr. Wingr, min. to Eoiiador, April 0, 1871, MS.
In.st. Ecuador, I. 203. Mr. Fish added that in tlie case al)ove referred
to " the evidence impeaching the recitals in the record of naturaliza-
tion was derived by Mr. Bancroft from the deliberate admissions of
the piirty himself, corroborated by the statements of others cogni-
zant of the fact."
For the opinion cited, see Akerman, At. Gen., 1871, 1.3 Op. .37(>. See
Williams, At. Gen., 14 Op. 154.
Naturalization in the United States, without an intent to reside perma-
nently therein, but with a view of rosidinj; in another c-ountry, and
using such naturalization to evade duties and responsibilities to
which, without it. he would be subject, ought to be treated by this
Government as fraudulent. (Williams, At. Gen., 1873, 14 Op. 295.)
Dec. 31, 1874, Mr. Schlozer, German minister at Washington, en-
closed to the Department of State the ceutificates of naturalization
of two former subjects of Prussia, dated, respectively, Jan. 12 and
Feb. 13, 1871. Mr. Schlozer stated that both the persons in question
returned to Prussia in 1871, and that it was shown by their admis-
sions, which had been confirmed by an official inquiry, that they left
Prussia, the one in May, ISGG, and the other in 1807; and he there-
fore inquired (1) whether their certificates were valid under the
laws of the United States, and (2) whether on the strength of those
documents the j^ersons named in them were recognized by the United
States as American citizens. Mr. Fish replied: "Under the circum-
stances, and ill the case you state, certificates of naturalization, valid
§ 423.] IMPEACHMENT OF NATURALIZATION. 503
on their face and founded on the decree of a competent court, cannot
be questioned except through judicial proceedings instituted for the
puri:)ose, or in Avhich the correctness of tlie facts formerly passed
upon .may properly be adjudicated, and that it is not within the
province of the political department of the Government to anticipate
what would be the result of a judicial inquiry into the question."
Mr. Fish, Sec. of State, to Mr. Schlozer, Jan. 8, IST."), For. Rel. IST.l, I. 577.
By an investigation, conducted under the direction of the American
consul at Smyrna, it appeared that one M. N., a native Turk, Avho had
been residing in Turkey since August, 1875, with a certificate of
naturalization as a citizen of the United States, first wqnt to America
in 1872, leaving his family behind him, and that he returned to his
home a few months later, but went again to America in Jtnie, 1873.
His certificate of naturalization bore date Aug. 20, 1874, and was
granted by the United States district court at Boston. By a copy
of the proceedings in the court, it appeared that M. X. swore that
he was a Greek subject, and that he came to the United States in
1851, being then a minor under eighteen years of age. Two witnesses-
vouched for him, but neither his name nor those of his vouchers
appeared in the Boston directory for 1873, 1874, or 1875. On these
facts, Mr. Fish said :
" Upon his presentation of the ordinary certificate of naturaliza-
tion to you and with your knowledge of the decisions of the tribu-
nals of the United States as to the force and effect of such judicial
proceedings, you hesitate to entertain any suggestion from the
authorities of the XHtoman Government bringing in question the
conclusiveness of the judicial acts of the tribunals of the United
States or the validity of Mr. M — — — - N "s claim to citizenship
under those proceedings, and properly remit the determination of
the question to the Department.
"The Supreme Court of the United States has decided in several
cases in which the question has been collaterally before it that the
decree of a competent court being in due ft)rm is to be held as con-
clusive evidence of the legal naturalization of the ])arty, and the
Attorney General who is the legal adviser of the Executive branch of
the Government following the doctrine of these judicial decisions
holds that such decrees of naturalization have the force and ett'ect of
a judgment.
"The doctrine thus judicially pronnilgated is not a new one. All
judgments of a competent court in the United States, arc taken and
accepted as a verity, and a decree of naturalization as to all (|iie>ti<)ns
which may be affected by it within the United States and while the
party is subject to the jurisdiction of the United States carries
504 NATIONALITY. [§ 423.
with it the same force and effect. The party holding it may take,
hold, and transmit property, may hold office either by election or
appointment, in short may exercist^ all the rights and enjoy all the
privileges that pertain to the character of a citizen. ^
" It is at the same time not to be doubted but that a decree of nat-
uralization like any other judgment may be impeached for fraud in
its procurement by a direct and proj^er judicial proceeding insti-
tuted for that purpose, and it is equally incontrovertible that the
party to such decree who may have been guilty of fraud in the pro-
curement and all persons aiding and abetting him in such purpose
are liable to be proceeded against criminally and punished under the
laws of the United States, and if the decree of naturalization should
be found to have been procured by fraud, it would as in the case of
any other judgment thus corruptly obtained be set aside and held
for naught.
" With the facts now in possession of the Department in regard to
the naturalization of Mr. M X , it is difficult if not im-
possible to resist the conclusion that his pretended naturalization is
the rasult of a deliberate and preconcerted fraud on his part. He is
now without the jurisdiction of the United States where its judicial
process cannot reach him. It cannot be that a fraudulently obtained
decree of a court, which would be set aside if the process of thei
court could reach and bring within its jurisdiction the party holding
it, is to be considered conclusive upon this Government merely
because the party has placed himself without its jurisdiction, and is
availing himself of the first fraud to practice another. It is the
Executive Department of the Government to which, in this case,
he appeals. The Executive Department of the Government must
therefore see that the good name and good faith of the Government
be -not compromitted by sustaining a claim resting on fraud and
falsehood, and which the courts would set aside, could the case be
brought within their jurisdiction. AATiile the Executive Department
bows with deference to the decrees of the Judicial Department of the
Government within the limits of their reach, it is not lx)und to claim
for these decrees in foreign countries, where manifestly obtained
by fraud or perjury, a validity which might not be conceded, and
which could neither be enforced nor defended on the ground of truth,
or justice or equity. I cannot doubt the evidence that N was
a resident of Calymno until the year 1872, that he occupied an official
position in that island inconsistent with other than alien citizenship
during the years 1871, 1872, that his claim to have come to the United
States in 1851 when under the age of 18 and to have resided here con-
tinuously from that time is untrue, or that his naturalization certifi-
cate was fraudulently obtained.
§ 423.] IMPEACHMENT OF NATURALIZATION. 505
"He has now returned to his native country, and is atteniptinjj to
shield himself under the nominal character of a citizen of tlie United
States, thus fraudulently acquired, from tiie obligation of answering
to the laws of his own country, and in pursuajice of this purpose he
invokes the protection and aid of the United States.
" To comply with his request, in the face of these established facts,
would be in my estimation no less than lending the sanction of tiiis
Government to the attainment of an inequitable and fraudulent end,
and would be alike inconsistent with its established policy and con-
trary to its known practice, an act which could not be expected to
meet with the approval of the President.
"You will therefore without any expression of opinion to the
Ottoman Government as to the validity or otherwise of the naturali-
jzation in question, give Mr. M. X. to understand that, while
the Department does not at this time determine, conclusively, the
question of the validity of his naturalization and his claim to citizen-
ship consequent thereon, the protection of this Government must be
denied to him until he shall have succeeded by jjroper steps and
satisfactory evidence in removing the presumption of fraud in the
procurement of that naturalization which the facts and circum-
Btances as now knowm to the Department plainly give rise to, and
should he desire your advice as to the proper measures to be ado})ted
by him towards that end, you will give such counsel and advice as
may in your judgment tend to facilitate his efforts in such pur])ose.''
Mr. Fish, Sec. of State, to Mr. Maynard, iniu. to Turkey, No. 40, Feb. n.
187G, MS. Inst. Turkey, III. 1G3.
See, also, Mr. Cadwahuler, Act. Sec. of State, to Mr. Davis, iiiiu. to (Jor-
many, Aug. 11, 1875, MS. Inst. Germany. XVI. 01.
" While the decisions concerning the binding force of a record of
naturalization make it difficult to go behind the record ; at the same
time, whenever the Government is called upon for its interposition
in a foreign state on behalf of any person claiming to be a naturalized
citizen, the question whether, under all the facts presented by him,
intervention should be accorded is always open for consideration.''
Mr. Fish, Sec. of State, to Mr. Morau, Feb. 1(5. ISTT. MS. Inst, rortu^-al.
XV. 156.
" It appears that you obtained the decree of naturalization . . . when
you had not resided five years innnodiately preceding the rendition
of such decree; con.sequently such decree of naturalization cannot
be consideretl valid." (Mr. Hunter, .Vet. Sec. of State, to Mr. Trujiilo.
Sept. 20, 187G, 115 .MS. Doni. Let. :r>l.)
"The matter \ot fraudulent naturalization! has become a source of iireat
trouble to certain of the diplomatic officers of this (loveninuMit. as
well as to this Department." (Mr. Fish. Sec. of State, to Attorney-
General Taft, Feb. U, 1877, 117 MS. Dom. Let. 701.)
506 NATIONALITY. [§ 423.
The legation at Berlin declined to issue a passport to a naturalized
citizen on the ground that he had resided in the United States only
three years. It appeared by the proceedings in which he was natur-
alized that it was represented to the court that he had resided in the
United States five years. On these facts Mr. Evarts declared " that
his certificate of naturalization was obtained on fraudulent and false
affidavits and is therefore void ;" that he was " not a citizen of the
United States," and was " not entitled to a passport," The thanks
of the Department were expressed to the legation for its " prudence
and caution."
Mr. Evarts, See. of State, to Mr. White, iiiin. to Germany, No. 55, Dee. 10,
1879, MS. Inst. Germany, XVI. 520.
The question as to impeachment of naturalization was at one time
much discussed in the course of the proceedings of the
Question before the Spanish Claims Commission under the agreement
Comm^ission^ ^ "^ ^ between the United States and Sixain of February 12,
1871. By that agreement it was stipulated that no
judgment of a Spanish tribunal disallowing the affirmation of a party
tlvit he was a citizen of the United States should prevent the arbitra-
tors from hearing a claim presented in his behalf by the Government
of the United States, but that in any case before the arbitrators the
Spanish Government might " traverse the allegation of American
citizenship," and that thereupon " competent and sufficient proof
thereof" would be "required;" and that "the Commission having
recognized the quality of American citizens in the claimants they will
acquire the rights accorded them by the present stipulations as such
citizens."
In the case of Ortega, No. 91, it aj^pearing by the claimant's own
statements that he had not complied with the condition of residence
under the naturalization laws, the umpire, M. Bartholdi, held that
his naturalization was invalid and that he was not entitled to appear
as an American citizen.
The agent of the United States, Mr. Durant, March 7, 1870, invoked
the interposition of the Department of State in respect of the question
thus decided, the same question being involved in other j)ending cases.
Mr. Evarts, who was then Secretary of State, replied, in a letter bear-
ing the same date, that the Department was of opinion that the
powers of the Commission for the determination of disputed cases of
citizenship Avere not " judicial," and that when the advocate for Spain
had traversed " the fact of naturalization," and the naturalization was
shown "by judicial proof," and it "being established that the party
has done nothing since to forfeit his acquired right," the limit of the
"discretionary power " of the Commission " would seem to be
reached."
§423.] IMPEACHMENT OF NATURALIZATION. 50*11
When this reply was written M. Barthohli had been succeeded a:-
umpire by Baron BUmc, before whom there was pending the case of
Fernando Dominguez, No. 32. In this case Spain alleged that the
naturalizati(m was fraudulent, chiefly on the ground that the claimant
had spent in Cuba the greater part of the five years innnediately pre-
ceding his admission to citizenship. Baron Blanc held that it was
the duty of the umpire to determine on the papers submitted to him
whether the certificate of naturalization was procured by fraud or
was granted in violation of treaty stipulations or of the rules of inter-
national law, but he also held that the claimant had j^reviously to his
naturalization been domiciled in the United States, and that such
absences as were shown did not " work a change of legal residence;"
and, assuming that the court had taken this view. Baron Blan(; said
that it must prevail so long as it remained " unreversed by an Ameri-
can tribunal of superior jurisdiction."
The arbitrator for Spain dissented from this conclusion, declaring
that he could not agree to refer to the umpire any case in which the
question of citizenship was involved till he should have submitted the
subject to his Government, in order that it might determine in con-
junction with the United States the exact scope of Spain's right to
"traverse" an allegation of American citzenship. February 0, 18S0,
the subject was brought to the attention of the Department of State
by the Spanish minister at Washington. In his reply, dated March 4.
1880, Mr. Fvarts declared that it was the view of the United States
that the Commission, under the agreement of 1871, was an " inde-
pendent judicial tribunal," possessing competency "to bring under
judgment the decisions of the local courts of both nations; " that in no
case had the right been denied to Spain to support her traverse of the
allegation of American citzenship by showing that the ])roofs adduced
thereof " were on their face inadmissible, or that they were unworthy
of credit because of a taint of fraud in the proceedings of naturaliza-
tion from which the documents emanated, or that, taken together,
such proofs were insufficient to establish the demand of American
citizenship put forth by this Government on behalf of the claimant."
Mr. Evarts further declared that, if the decision of the umpire had
been that the claimant had never in fact acquired American citizen-
ship, the United States woidd have felt bound to accept the decision
as final and conclusive.
May 4, 1880, the Spanish minister informed Mr. Evarts that, as llic
result of the hitter's note of the 4th of March, a " perfect confoiinity *"
existed between the views of the two governments.
The question thus apparently settled was, however, soon revived.
In April, 1880, Baron Bhmc, being on the point of leaving the United
States for an indefinite time, resigned. He was succeeded as umpire
508 NATIONALITY. [§ 423.
by Count I>nvonh«'iupt, then Swedish ministw at Washinj2:ton. In the
foUowin*; niitunm (he discussion of the <iuesliou of luituralization was
revived before the Commission by extended arguments of counsel on
the part of the respective governments, and on April 18, 1881,
Count Lewenhaupt in the case of Buzzi, No. 22, decided that the
claimant had no right to appear as an American citizen, since it was
shown that during the five years immediately preceding his naturali-
zation he liad lived about four and a half years in Cuba.
On the following day Mr. Durant brought this decision to the
notice of the Department of State, of which Mr. Blaine had suc-
ceeded Mr. Evarts as the head. On the 22nd t)f April Mr. Blaine
wrote to Mr. Durant concurring in the suggestion of the latter that
a motion should be made before the umpire for a rehearing.
Noveml^er 30, 1881, however, Mr. Blaine withdrew this instruction,
and directed Mr. Durant to inform the Commission that the United
States could not accept the judgment in the case of Buzzi as being
" within the competence of the innj^ire to render," and he added :
" For the present it is sufficient that I refuse to recognize the power
of the Commission to denationalize an American citizen. When a
court of competent jurisdiction, administering the law of the land,
issued its regular certificate of naturalization to Pedro Buzzi, he
was made a citizen of the United States, and no power resides in the
Executive Department of this government to reverse or review that
judgment. And what the power of the Executive can not do in
itself it can not delegate to a commission, which is the mere creation
of an executive agreement,'' as was that of 1871. Mr. Durant was
therefore instructed not to have any case referred to the umpire
wherein the question in Buzzi's case was involved. Under this
instruction Mr. Durant suspended action in some fifteen cases.
February 17, 1882, Mr. Frelinghuysen, who was then Secretary of
State, instructed Mr. Suydam, who had succeeded Mr. Durant as
advocate for the United States, to i)ress the business before the arbi-
trators, and whenever he found them disagreeing, and in his judg-
ment the disagreement opened a controverted question of citizenship
to the decision of the umpire, to report to the Department. Septem-
ber 25, 1882, when the Commission, after a recess, was about to rexx)n-
vene, Mr. Freylinhuysen addressed a further instructicm to Mr.
Suydam in which he stated that the Department must insist: (1)
That it possessed no power and had conferred none on the Commis-
sion to examine into " the motive, the purpose, and object of the
applicant in seeking naturalization;" (2) that the Department pos-
sessed no power and had conferred none on the Commission to make
it requisite that a naturalized citizen should have been "actually
present" in the United States for five years iimnediately preceding
§423.] IMPEACHMENT OF NATtTRALIZATION. 509
naturalization, since a " residence " might " exist without an unin-
terrupted actual presence during the whole probationary period;"
(3) that the Government of the United States could '' not deny that,
under the terms of the agreement, the certificate of naturalization
may be proven to have been obtained fraudulently;" and (4) that
the " true rule " to govern the Commission was that when the allega-
tion of naturalization was traversed and the naturalization was
'■'■ established prima facie by the production of a certificate of natural-
ization, or by other competent and sufficient proof, it can only be
impeached by showing that the court which granted it was without
jurisdiction, or by showing, in conformity with the adjudications of
the courts of the United States on that topic, that fraud, consisting
of intentional and dishonest misrepresentation or suppression of
material facts by the party obtaining the judgment, was practiced
upon it, or that the naturalization was granted in violation of a
treaty stipulation or of a rule of international law."
December 14, 1882, Mr. Lowndes, then arbitrator for the' United
States, and the Marquis de Potestad, arbitrator for Spain, announced
an agreement between them in the very terms in which Mr. Freling-
huysen had expressed the " true rule " by which the Commission
should be governed; and they added that they would transmit these
rules to the umpire, in order that he might be guided by them in the
cases yet to be decided by him.
Moore, Int. Arbitrations, III. 2.500-2021.
Subsequently the following decisions were rendered : In the ease of .J. G.
de Angariea, No. 17, Mr. Lowndes, December 20, 1882, with the con-
currence of the arbitrator from Spain, dismissed the claim on the
ground that the claimant, who appeared as a naturalized citizen,
had not resided in the United States during the five years preceding
his naturalization.
A similar decision was rendered by Mr. Lowndes on the same day in the
case of H. F. Criado y (iomez, Xo. 21).
These two decisions may be found in Moore, Int. Arbitrations, III. 2(521,
2024.
For other decisions in similar cases, see id. 2(!2(»-2('>47.
By the French and American Claims Commission, under th(> convention oi
.lanuary 1,~), 1880, claims of naturalization were rejected on the
ground that the certificate was obtained by misrei)resentAtion of
material facts, as well as on the gromul that the conditions of resi-
dence were not complied with. (Moore, Int. Arbitrations, III.
2047-2053. )
S. invoked the interposition of the legation of the United States
in Berlin. It appeared that he emigrated to Auum-
Cases since 1881. • • t-v i i o>-i i • ,i • .
lea 111 December, 18(1, being then nineteen years
old, and arrived in New York in January, 1872. He was naturalized
Oct. 2, 1870, and in tlie same month returned to Germany, lie stated,
510 NATIONALITY. [§ 423.
ill response to inquiries, that his final papers were issued to him by
the court vohmtarily, and that he did not eniph)y any attorney, pay
any bribe, or use any inipr()j)er means to secure his naturalization in
advance of the proper time. On these facts Mr. Blaine said: ""On
Mr. S 's own showing he was admitted to citizenship contrary
to the laws of the United States, and the decree of the court admit-
ting him is therefore a nullity. The court was misled and deceived
by the testimony of his witnesses. He knew the facts and must be
presumed to have known the law. Under the circumstances it was
Mr. S 's duty to have brought these facts to the knowledge of
the court. It is not a question of merely honest intention. The cir-
cumstance, moreover, that Mr. S , immediately after obtaining
his certificate of naturalization, returned to his native country, does
not tend to impress me with a strong sense of the bona fides of his
case. This Government can not properly interfere in his behalf.
Your course in the matter is approved."
Mr. Blaine, Sec. of State, to Mr. Everett, charge at Berlin, No. 265, Oct.
10, 1881, MS. Inst. Germany, XVII. V2r>, aclvnowletlging the receipt of
Mr. Everett's No. 248, Sept. 3, 1881, 29 MS. Desp. Germany.
A. F. Pinzon applied to the United States legation at Bogota for
its intervention, in order that he might be exempt from the duties of
Colombian citizenship. He was a native of Colombia, but produced a
certificate of naturalization as a citizen of the United States. In
reply to inquiries of the legation, however, he stated that he had lived
in the United States but four years; that he had never made any
declaration of intention; that when naturalized he was not required
to prove that he had lived at least five years in the United States;
that, immediately on obtaining his certificate, he returned to Colom-
bia, and that he had not since been in the United States and had no
intention of returning thither to reside. The Department of State
held that he was not entitled to protection, " his certificate of natu-
ralization having been admittedly obtained in fraud of the United
States statutes."
Mr. Bayard, Sec. of State, to Mr. Scrnggs. min. to Colombia, May HI, 1S8."»,
For. Itel. 1885, 211. See Mr. Scruggs's dispatch of Dec. 2(5, 1884, id.
109.
See, to the same effect, Mr. Bayard, Sec. of State, to Mr. Cramer, No. 138,
May 0, 1885, MS. Inst. Switzerland, II. 251 ; to Mr. Winchester, No.
33, Dec. 28, 1885, id. 295 ; to Mr. Sterne, April 20, 188(;, 159 MS. Dom.
Let. <!74.
See, also, Mr. Bayard. Sec. of State, to Mr. Francis, min. to Anst.-IInng..
May 20. 1885. For. Kel. 1885, 27; to Mr. Coleman, No. im\, Dec. 4,
1888, MS. Inst, (iermany. XVIII. 174.
K. applied to the American legation in Berne for a passport. His
application showed that he arrived in New York May 21, 1873, and
§423.] IMPEACHMENT OF NATURALIZATION. 511
was naturalized October 23, 1877, when he had resided in the United
States only four years and five months. He admitted that the facts
were as stated, but claimed that he was misinformed as to the law, and
that the court which admitted him to citizenship did not ask him any
questions. The legation declined to issue a passport, and its decision
was approved.
Mr. Bayard, Sec. of State, to Mr. Winchester, miii. to Switzerland, Oct. 7,
3887, For. Hel. 1887, 1072.
A passport having been issued to a person, as a naturalized citizen,
in the name of Stephen Emil Heidenheimer, he subsequently ad-
mitted his identity with " Edward Heidenheimer," who, as appeared
by the passenger list of the steamer Australasian^ arrived in the
United States on November 1, 1866, only four years and six months
prior to his admission to citizenship. He declared, however, that the
name in the passenger list was erroneous; that when he applied to
the court for naturalization, it was with a view to go to Germany
temporarily, on account of his health; that he had no intention of
defrauding or misleading the court, but that he was unable to state,
after the lapse of time, whether he acted in ignorance of the law or
under a mistake as to the date of his arrival. AVhatever the cause
may have been, whether ignorance of the law or mistake as to the
facts, he attributed it to his illness in 1870 and 1871. The Depart-
ment of State held, however, that under the law (sec. 2170, R. S.)
the duty of the courts was imperative, admitting of no exercise of
discretion ; that the question whether the false statement as to five
years' residence was made ignorantly or not Avas immaterial, since
innocent intent could not confer jurisdiction upon the court to grant
naturalization in violation of law ; that the applicant consequently
was not a citizen of the United States and was not entitled to a ]xiss-
port or other certificate as such, and that his pass[)ort should be
cancelled.
Mr. Bayard, Sec. of State, to Mr. McLane. min. to France. Dec. 8. 188S
For. Hel. 1888. I. HCw.
Mr. Bayard added: "You will cancel the [Kissport heretofore issu«'d by
yon to Mr. Heidenheimer. and you will return hither the i»assport
issued to him in 1871 l)y this Department."
A. L. obtained from the sui)erior court of the city of Xew York a
certificate of naturalization October 24, 1888, and, securing a passport
from the Department of State, went to Palestiue. By the record of
the naturalization iwoceediugs, it seemed that he had rcpresentiMl him-
self as a native of Russia and as having resided in the United States
in 1880: and from his ])assi)ort application it was infernal that, in
order to bring himself within K. S., ij 2167. and thus avoid the pro-
duction of a previous declaration of intention, he had represented
512 • NATIONALITY. [§ 42S.
hini.st>lf, when he was naturalized, as having come to the United
States while a minor. In 181)0 A. L., who was then residing iir
Palestine, invoked the protection of the United States consul at Jent-
.salem in respect of a complaint against the cavass of the liritish
consulate. The consul reported that A. Ij, was, in fact, a native of
Palestine; that he was five years older than was stated in hiH passport
application; that he was a protege of the British consulate down to
August, 1884; that he was, to the consul's knowledge, residing in
Palestine in 1880, and that he had at length admitted that he left for
the United States in November, 1887, less than a year before he was
naturalized. Mr. Blaine said : " L is not now within the juris-
diction where he committed the illegal acts which the evidence dis-
closes, and can not be reached by the process of our courts. The only
course open to this Government, therefore, is to refuse to recognize
his claim to its protection."
Mr. Blaine, Sec. of State, to Mr. Hirsch, niin. to Turkey, No. 141, Dec. 17,
1890, MS. Inst. Turkey, V. 171.
In the similar case of a native of Italy, who had been naturalized aijpa-
reutly after a two years' residence, and who, after his return to Italy,
invoked the i)rotection of the American legation, Mr. Blaine said:
" There is no doubt that his naturalization was procured by fraud, and
that the passjwrt he holds was improvi:!c-itly issued. It should,
if iK)ssil)le, be surrendered and cancelled ; but, if that can not be done,
you will refuse any fiu'ther intervention in P 's behalf." In saying
that the passport was " improvidently issueil," Mr. Blaine referred to
the circumstance that V. stated in his passport application that he
emijn-ated hi August. 18(}8. and was naturalized in 1870. (Mr.
Blaine. Sec. of State, to Mr. Porter, uiin. to Italy, No. 123, April 1,
1801, MS. Inst. Italy, II. 510.)
It being stated in a passi)ort ai)plication that the api>licant arriveil iu
the United States Dec. 18, 1880, and it apiiearing that his naturaliza-
tion was granted April 1, 1885, the DeiMirtmeut of State refusetl to
issue a passport. (Mr. Wharton, Act. Sec. of State, to Mr. Schultz,
Jan. 8, 1892, 184 MS. Dom. Let. 615.)
M., a native of Germany, arrived in the United States in May, 1874.
He was naturalized by the court of common pleas, in Philadelphia, in
October, 187(), under sec. 2107, K. S., on averment that he came to the
United States in his eighteenth year and had resided there 11 years.
The action of the American embassy in Berlin in refusing to grant
him a passport was approved.
Mr. Gresham, Sec. of State, to Mr. Runyon. amb. to Germany, No. 189,
Dec. 15, 1894, MS. Inst. Germany. XIX. 171.
" It is the practice of the Department to refuse to issue a passport
in case it appears upon the face of the paj)ers |in this instance a
passport application and certificate of naturalization] that naturali-
zation was obtained by fraud."
§424.] IMPEACHMENT OF NATURALIZATION. 513
Mr. Olney, Sec. of Stute, to clerk of coiimion pleas, New York City, Jan.
13, 1897, 215 MS. Dom. Let. 202.
" Naturalization after a residence of less than the lawful period
can only be presumed to have been decreed by the court in ignorance
of the facts, or by imposition upon it and a false declaration under
oath as to the time of residence and the other statutory conditions
of naturalization. A certificate of naturalization so obtained is not
regarded as binding upon this Department, as it would be equalh' not
binding upon the German Government under the naturalization
treaty."
Mr. Day, Assist. Sec^ of State, to Mr. Stewart, Xov. 11, 18!J7, 222 MS.
Dom. Let. 359.
Where the validity of naturalization is in doubt, the presump-
Presumption in ^^^^ ^^ " ^^^ favor of the rights and privileges of the
doubtful cases. citizen."
Mr. Fish, Sec. of State, to Mr. Davis, luin. to (Jermany, Dec. 20, 1875, MS.
Inst. Germany, XVI. 133.
To the same effect. Mr. Rockhill, Act. Sec. of State, to Prince Wrede, Aug.
7, 1896, MS. Notes to Aust. Leg. IX. 273.
" Under ordinary circumstances, where a prima farie record of
citizenship, both of the father and the son, appears in the archives
of the legation, untraversed by any adverse allegation, and where no
motive of deception and fraud is apparent, the Department would be
adverse to throwing on the applicant the perhaps needless and incon-
venient burden of proving that the father actually and legitimately
acquired the status of a citizen of the United States."
Mr. Frelinghuysen, Sec. of State, to Mr. Langston. Aug. l.S. 188:{. MS. Inst
Hayti, II. 353.
(3) AUTHORITY TO MAKK DECISION.
" § 424.
The question of the validity of naturalization in tlie United States
cannot be determined ex parte by a foreign government, but should
be presented to the government of the United States,
Mr. Fish. Sec. of State, to Mr. Nelson, min. to Mexico. Felt. 13. 1872, For.
Kel. 1872, 387.
An American decree of naturalization '" is not open to imi^oach-
ment by the French Government, either in its executive or its judicial
branch," and " if it is alleged to have been improvidently issued the
remedy is by application to this Department."
Mr. Bayard, Sec. of State, to Mr. McLane. min. to France. Fcii. !.'•. 18.S8,
For. Rel. 1888. I. 510.
H. Doc. 551 — vol 3 33
514 NATIONALITY. » [§424.
" This Department has, therefore, acting upon well-settled prin-
ciples of law, uniformly declined to admit the right of any foreign
power to question the validity of such judgment [of naturalization].
" But, at the same time, this Government will in all proper cases
itself inquire into the regularity of any judgment of naturalization
that may be impeached. And proofs touching the identity of the
person, or showing that the judgment was obtained by fraud or
granted improvidently. will receive the careful attention of this
Department upon being presented by your Government."
Mr. Bayard, Sec. of State, to Mr. Bluhdorn, Aug. 21, 1888, MS. Notes to
Austrian Leg., VIII. 575.
" It is proper, however, to advert to a circumstance which in this
case, as in others heretofore, especially attracts the Department's
attention. Upon arrest, the citizen papers of the accused are taken
away, and he is thus deprived of the means of proving his citizenship
before the legation of his count^ry, to which" he h^s an indisputable
right to appeal for protection. You have very properly invited
Count Kalnoky's consideration of the anomaly of seizing the identi-
fication papers of a citizen of a friendly power, and holding him to
prove his foreign citizenship, which it has been nuule impossible for
him to prove. Besides this, great delays have often occurred in past
instances through this needless obstruction of the legation's right to
promptly intervene to establish the rights of the citizen. Fre'^uent
cases of such hardship are of recent record in your legation. You
should intimate to the minister of foreign affairs the confident
expectation here entertained, that it is only necessary to point cut
this abuse to ensure its correction, and to secure to any American
citizen accused of violation of the military laws of Austria-Hungary
the right of free and instant appeal to the legation for protection, and
the opportunity to establish, to its satisfaction, by documentary proof,
his clctim for its inter^^ention to secure his rights as a citizen under
the naturalization treaty of 1870 between the two countries. In this
way, moreover, the intervention of the legation in any case of
unfounded or fraudulent claim to protection would be averted."
Mr. Gresham, See. of State, to Mr. Grant, niin. to Austria-Hungary, May
S, 1893, For. Rel. 1803, 13, in relation to tlie case of Charles Mercy,
alias Saul Moerser, a naturalized citizen of the United States, of
Galician hirth, who was arrested at Kralvau on a charge of evasion
of military duty and of embezzlement previous to emigration. When
he was arrested all his papers, including his certificate of naturaliza-
tion, were taken from him. On the strength of the evidence of
naturalization, the former charge was withdrawn, and he was held
to bail on the charge of embezzlement, pending the disposition of
which a right was asserted to hold all his papers in judicial custody.
He appears to have forfeited his bond and quitted the country.
§424.] IMPEACHMENT OF NATURALIZATION. 515
May 8, 1893, the imperial-royal minister of foreign affairs wrote to tlie
minister of the United States : " The fliglit of the aforesaid individual
fully proves the suspicion . . . that Saul Moerser was entertain-
ing dishonest thoughts when lie impatiently clamored for his docu-
ments of identity which were in the safe-lieei)ing of the court, and
that the authorities at Krakau were i)erfectly justified in refusing
to hand these documents over to Saul Moerser, because they kne.v
his true character."
In an instruction of June 1, 1893, Mr. Gresham said : "In witliliolding
the evidence of the citizenship of Mr. Moerser, it may be observed
that there is an eosential distinction between witld-olding tlie papers
from the individual and withholding them from tlie legation. By
the latter course the legation is deprived of all opi>ortunity to ascer-
tain whether the party is in fact a citizen of tlie United States by
lawful process and as such entitled to the protection of the legation
to secure him speedy and impartial justice or to defend his rights
under the treaty if infringed." (For. Rel. 1893, 14-1 .j.)
In the case of John Benich, a native of Hungary, who was alleged to
have obtained his naturalization in the United States without having
resided there for live years uninterruptedly, as retpiired by the treaty
. bet\yeen the United States and Austria-IIungaiy, the Austrian Oov-
, , enimeiit asked that his certificate of naturalization saould be can-
celled ; and it was suggested that the superior court of Cook County,
Illinois, by whom the certificate was granted, should require Benich
to show cause why it should not be cancelled. (For. Ke). 1894,
36-38.)
The minister of the United States at Vienna, who had made this sug-
gestion, was instructed to inform the niini;;ter of foreign affairs that
• the Department of State had no powers by any st.ei)s of its own to
cancel the certificate, but that the matter would be submitted to the
court at Chicago, and that, should the court decide that its decree of
naturalization was erroneously issued and set it aside, the Depart-
ment would withdraw the passport which had been issued in reliance
uiwn it. (For. Kel. 1894, 46, 47.)
The treaty of naturalization between the United States and Aus-
tria-Hungary of Sept. 20, 1870, "being a contract between eqiuil
sovereignties, stipulates that five years' residence in the territory of
the one, coupled with naturalization, shall constitute full citizenship
to be duly recognized and respected in the territories of the other.
Naturalization is a sovereign attribute Avithiji the sole competence of
the respective parties and each' is competent to certify the fact .mder
its own laws. By the laws of the United States a five years' uninter-
rupted residence is essential to the lawful naturalization of all aliens,
save minor children of naturalized parents (such children residing
within the jurisdiction of the United States) and honorably dis-
charged soldiers, which latter may be naturalized on proving at least
one year's residence.
" AATiile in these exceptional cases the Austro-IIungarian (iovern-
ment may rightly require the facts, there is nothing in the treaty
516 NATIONALITY. [§425.
which can authorize its ex j>arte municipal action to that CMid. It
rests with the Gov^ernment of the United States to certify those facts,
upon request, if need be, and it is equally incumbent upon this (lov-
ernment to press no case where citizenshij) nuiy be ascertained to have
been conferred and the naturalized Austrian to have quitted the
United States within the stipulated term of five years. As for the
provisions of Article II,, they are clearly intended to authorize the
respective governments to apply the penalties in certain specific cases,
and the opportunity and obligation to prove the facts necessarily
rests with the government which takes advantage of the right con-
ferred. But the facts so to be shown are wholly distinct from any
question of citizenship; for the returning offender may be punished
according to Austro-Hungarian law for any of the specified acts of
nonfulfillment of military duty before emigration, without impugn-
ing the validity of his subsequent naturalization in conformity with
the laws of the United States."
Mr. Gresham, Sec. of State, to Mr. Tripp, uiin. to Austria-Hungary, Sept.
4, 1893, For. Rel. 1893, 23, 25.
This instruction related to a case in wliich a native of Croatia, who had
been naturalized in the IJnitetl States after a seven years' residence,
was, while on a visit to his native country, arrested and held for
military service, although his passport and certificate of naturaliza-
tion were submitted, in original and translation, to the local authori-
ties. Subsequently, on the interposition of the American legation at
Vienna, he was, by order of the Hungarian minister of defense, tem-
porarily discharged from active service, but the question of finally
erasing his name from the I'olls was reserved till " full information "
should be received as to his United States citizenship. It was with
reference to these circumstances that the foregoing instruction was
written, in which ^Ir. Gresham maintained that United States pass-
ports were, " on their face, entitled to faith and credit " as prima
facie evidence of citizenshii). and that if the Austro-Hungarian au-
thorities should " have reason to believe that thej' are fraudulently
held by others than the persons to whom they were lawfully issued,
or that the holders have obtainetl naturalization in fraud of the laws
of the United States, or claim privileges of citizenship not granted
by the treaty of naturalization between the two countries, the facts
should at once be brought to the notice of the Government of the
United States through its accredited envoy in Austria-Hungary," so
that any "doubtful cases of citizenshii>" might be disposetl of "by
tlie cooperative action of the legation and the foreign office."
(4) msposrnoN of fraudulent certificates.
§ 425.
" Frequent instances are brought to the attention of the Govern-
ment of illegal and fraudulent naturalization, and of the unauthor-
ized use of certificates thus improperly obtained. In some cases the
§425.] IMPEACHMENT OF NATURALIZATION. 517
fraudulent character of the naturalization has appeared upon the
face of the certificate itself; in others, examination discloses that the
holder had not complied with the law ; and in others, certificates have
been obtained where the persons holding them not only were not
entitled to be naturalized, but had not even been within the United
States at the time of the pretended naturalization. Instances of each
of these classes of fraud are discovered at our legations, where the
certificates of naturalizati<m are presented, either for the purpose of
obtaining passports or in demanding the protection of the legation.
When the fraud is apparent on the face of such certificates, they are
taken up by the representatives of the Government and forwarded to
the Department of State."
President Grant, annual message, Dec. 7, 1874. (For. Rel. 1874, xi.)
Following this passage. President Grant went on to urge that legislation
be adopted to secure the ready cancellation of records of naturaliza-
tion obtainetl by fraud, so that the individual, after his certificate was
taken from him, might not immediately obtain a fresh duplicate from
the court.
The precedents of the Department of State with regard to the treatment
of the certificate of naturalization in such cases are altogether con-
tradictory. President (irant and Mr. Fish, as is seen by the foregoing
extract, refused to return to the individual the certificate which lie
had fraudulently obtained, evidently acting upon the principle that,
as he was not entitled to protection as a citizen, he should not be per-
mitted to carry about with him the discredited evidence of citizenship,
on which he might attempt to obtain or even might obtain a passix)rt
from another legation. At other times the Department has assumed
that the certificate nuist be returned to him, on the theory (1) that
he has in it a sort of property right of which he can not be deprived,
or (2) that the Executive "can not declare that the man is not a
citizen." (Mr. Sherman, Sec. of State, to Mr. Drai>er, amb. to Italy,
No. 128, March 22, 1898, MS. Inst. Italy, III. 278.) With regard to
the first ground, it may be observed that the Department does not
hesitate in such case to retain and ca'ncel a passport, which the indi-
vidual has obtained and for which he has paid the usual fee. As to
the second ground, the answer is two-fold. In the first place, the
Executive has in reality repeatedly declared that a person who has
been fraudulently naturalized " is not a citizen," for any pur])ose of
protection abroad : and, in the second place, this is all that the with-
holding and retention of the fraudulently obtained (-ertificate in such
case amounts to. It does not involve any assumption uf power to
^ cancel or set aside the judicial record, or to invalidate any claim of
citizenship which the individual might afterwards assert in tiie
United States. On the contrary, it merely deprives him of the nicans
of continuing to assert a fraudulent claim to itrotection abroad. It
seems advisable, in any event, to c<»muuinicMte the f.icts to tiie proper
court for its information. (Mr. (Jresham, Sec. of State, to Mr. Hnn-
yon. No. 180, Dec. 1."., 1804, MS. Inst. (Jerniany. XIX. 171.)
In the case of a person who was naturaIiz«Hl on tlie ground of service in
the Army of the United States in the war with Spain, lint who, as
it ai)peared, had never so served, a direction was given to procure
518 NATIONALITY. [§425.
and retain his certificate of naturalization. (Mr. Cridler, Third
Assist. Sec. of State, to Mr. Donzelniann, No. 27, March L'O, 1899,
ma MS. Inst. Consuls. 'M\).)
A person improperly naturalized is not entitled to a passport "or other
certificate" of Aineriean citizenship. (Mr. Bayard, Sec. of State,
to Mr. McLane, uiin. to France, Dec. 8, 1888, For. Rel. 1888, I. GeJo.)
XI. DOUBLE ALLEGIANCE.
The doctrine of double allegiance, though often criticised as un-
philosophical, is not an invention of jurists, but is the logical result
of the concurrent operation of two different laws. In the absence
of a general agreement for the exclusive apj)lication, according to
circinnstances, of the one or the other of such laws, the condition that
actually exists is described by the term double allegiance. An undis-
puted example of it is furnished by the case of a child who, by reason
of his parents being at the time of his birth in a foreign land, is born
a citizen of two countries — a citizen of the country of his birth jure
soli, and a citizen of his parents' country jure sanguinis. It is true
that in such a case a double claim of allegiance potentially may not
arise. For instance, the country of birth may not claim the alle-
giance of children born on its soil to alien parents; or the country to
which the parents belong may not claim the allegiance of the foreign-
born children of its citizens; or the laws of the two countries, while
recognizing both sources of allegiance, may coincide ill giving a pref-
erence, at least during the infancy of the child, to the one or the other
source. But, if the conditions be otherwise, and the double claim
actually exists, it is conceded to have a valid foundation. A conflict,
however, is obviated by the rule — which is indeed but the practical
formulation of the doctrine itself — that the liability of the child to
the performance of the duties of allegiance is determined by the laws
of that one of the two coimtries in which he actually is.
Another example of double allegiance may be furnished by the case
of an infant whose father emigrates and acquires a new allegiance.
In the cases above mentioned it is held that the child on attaining
his majority, if the double claim has not sooner been dissolved, has
the right to elect which of the two allegiances he will retain; and
this election he is required to make.
It is sometimes stated that a double allegiance also exists where a
person born in one country afterwards emigrates to and becomes a
citizen of another country. That a person in such a situation may be
subject to the claims of allegiance in two cotmtries, is in point of
fact no doubt true; but it is in point of principle equally ti-ue that,
when writers place such a case under the head of double alle-
giance, they at least impliedly hold that the doctrine of voluntary
expatriation, as maintained by the United States, is not well founded.
§426.] DOUBLE ALLEGIANCE. 5l9
This will the more clearly appear when we discuss, below, the ques-
tion of expatriation. From the point of view of the doctrine of
expatriation, as enunciated by the United States, the man who, volun-
tarily forsaking his original home and allegiance, acquires a new one,
has thereafter but one allegiance — that of his adopted country.
1. FoREioN-BoRN Children.
(1) ACT OF 1855.
§426.
The act of February 10, 1855, 10 Stat. 604, provides that " per-
sons heretofore born, or hereafter to be born, out of the limits and
jurisdiction of the United States, whose fathers were or shall be at
the time of their birth citizens of the United States, shall be deemed
and considered and are hereby dechired to be citizens of the United
States: Provided^ however, That the rights of citizenship shall not
descend to persons whose fathers never resided in the United States."
Rev. Stat. § 1993. This section, which incorporates the substance of the
act of 1855, reads as follows: "All children heretofore born or here-
after born out of the limits and jurisdiction of the United States,
whose fathers were or may be at the time of their birth citizens
thereof, are declared to be citizens of the United States ; but the
rights of citizenshii) shall not descend to children whose fathers
never resided in the United States."
" If therefore by the laws of the country of their birth children
of American citizens, born in that country, are subjects of its govern-
ment, I do not think that it is competent to the United States by any
legislation to interfere with that relation, or, by undertaking to ex-
tend to them the rights of citizens of this country, to interfere with
the allegiance which they may owe to the country of their birth
while they continue within its territory, or to cliange the relation to
other foreign nations which, by reason of their place of birth, may at
any time exist."
Hoar, At. -Gen., .Tune 12, 18(59, V,\ Op. 89. 91.
" Every independent state has as one of the incidents of its sov-
ereignty the right of municipal legislation and jurisdiction over all
persons within its territory, and may therefore change their nation-
ality by naturalization, and this, without regard to the municiiial
laws of the country whose subjects are so naturalized, so long as they
remain, or exercise the rights conferred by naturalization, within
the territory and jurisdiction of the state which grants it.
520 NATIONALITY. [§ 426.
" It may also endow with the rights and privileges of its citizen-
ship persons residing in other countries, so as to entitle them to all
rights of property and of succession within its limits, and also
with political privileges and civil rights to be enjoyed or exercised
within the territory and jurisdiction of the state thus conferring its
citizenship.
" But no sovereignty can extend its jurisdiction beyond its own ter-
ritorial limits soTs to relieve those born under and subject to another
jurisdiction, from their obligations or duties thereto; nor can the
municipal law of one state interfere with the duties or obligations
which its citizens incur, while voluntarily resident in such foreign
state and without the jurisdiction of their own country.
" It is evident from the pr^oi^iso in the act of 10th February, 1855,
viz, ' that the rights of citizenship shall not descend to persons whose
fathers never resided in the United States,' that the law-making
power not only had in view this limit to the efficiency of its own
municipal enactments in foreign jurisdiction, but that it has con-
ferred only a qualified citizenship upon the children of American
fathers born without the jurisdiction of the United States, and has
denied to them, what pertains to other American citizens, the right
of transmitting citizenship to their children, unless they shall have
made themselves residents of the United States, or, in the language
of the fourteenth amendment of the Constitution, have made them-
selves ' subject to the jurisdiction thereof.'
" The child born of alien parents in the United States is held to
be a citizen thereof and to be subject to duties with regard to this
country which do not attach to the father.
" The same principle on which such children are held by us to be
citizens of the United States, and to be subject to duties to this coun-
try, applies to the children of American -fathers bom without the
jurisdiction of the United States, and entitles the country within
whose jurisdiction they are born to claim them as citizens and to
subject them to duties to it.
" Such children are born to a double character : the citizenship
of the father is that of the child so far as the laws of the country of
Avhich the father is a citizen are concerned and within the jurisdiction
of that country; but the child, from the circumstances of his birth,
may acquire rights and owes another fealty besides that which at-
taches to the father."
Reijort of Mr. Fish, Sec. of State, to the President, Aug. 25, 1873, For.
Rel. 1873, II. 118G, 1191-1192.
"173. It is provided by law that persons born out of the limits
and jurisdiction of the United States, whose fathers were or shall
Ije, at the time of their birth, citizens of the United States, shall be
§426.] DOUBLE ALLEGIANCE. 521
deemed and considered to be citizens of the United States, provided
that the right of citizensliip shall not descend to persons whose
fathers never resided in the United States. Within the sovereignty
and jurisdiction of the United States such persons are entitled to all
the privileges of citizens; but while the United States may by law
fix or declare the conditions constituting citizens of the coimtry
within its own territorial jurisdiction, and may confer the rights of
American citizens everywhere upon persons who are not rightfully
subject to the authority of any foreign country or government, it
ought not, by undertaking to confer the rights of citizenshi}) upon
the subject of a foreign nation who had not come within our own
territory, to interfere with the just rights of such nation to the gov-
ernment and control of its own subjects. If, by the laws of the
country of their birth, children of American citizens born in sucii a
country are subjects of its government, the legislation of the United
States will not be construed so as to interfere with the allegiance
which they owe to the country of their birth while they e<))itin>ie
within its territoi'y. If, therefore, such a person, who remains a
resident in the country of his or her birth, applies for a passport as
a citizen of the United States, such passport will be issued in the
qualified form shown in Form No. 11."
Consular Regulations of the United States. 1881, sec. 173.
The qualified form of passport thus referred to stated that the right of
the hearer to ask the aid and protection of the United States was
" limited and qualified hy the ohligations and duties which attach to
him [or herl under the laws of the Kingdom [Empire or Keimhlicl
of , in which he lor she] was horn (his [or her] father heing
then a citizen of the Ignited States), and where he [or she] now
resides." (Consular Regulations of the United States, LSSl, .'»!."». I
Sec. 173, above quoted, first appears as sec. 115 of the Consular
Regulations of 1870, p. 40. It also forms sec. 115 of the Consular
Regulations of 1874, p. 31, Similar directions wei-e embraced in
sec, 131 of the printed instructions of 1885 to the di})louiatic rei)re-
sentatives of the United States.
For these sections there was substituted by a circular of the De-
partment of State of June 29, 1885, the following jxiragraph:
" It is provided by law that ' all children" born or hereafter born
out of the liuiits and jurisdiction of the United States, whose fathers
were or may be, at the time of their birth, citizens thereof. ar(> to be'
declared '' to be citizens of the United States; but '' the rights of citi-
zenship shall not descend to children wjiose fathers nevt'i- resided in
o In the statute the word " i>ersons " is used.
''This quotation is inaccurate, the statute reading "sli.iU he (U'cnicd and con-
sidered and are herehy declared to he," etc.
c This is iu the form of a proviso in the original statute, suiira.
522 NATIONALITY. [§ 426.
the United States.' That the citizenship of the father descends to
the children horn to him when abroad is a generally acknowledged
principle of international law.""
This section was carried into the Consnlar Regulations of 1888,
sec. 140, and is preserved, with some abbreviation, in the Consular
Regulations of 1890, sec. 138, p. 49, and the Instructions to the Dip-
lomatic Officers of the United States of 1897, sec. 188, p. 52.
The object of the change made in the consular and diplomatic
instructions in 1885 is set forth in a report of Dr. Francis Wharton,
then solicitor of the Department of State, of May 4, 1885, in which
it is suggested that the instructions in the form in which they previ-
ously stood might be construed as implying a denial of the civil
.status derived from domicil in matters of guardianship, legitimacy,
marriage, and succession to property. His report contains the fol-
lowing statement:
" The correct rule I apprehend to be that the children born abroad of
parents domiciled in the United States partake of their father's
domicil. and children born abroad of citizens of the United States
partake of their father's citizenship. The possession of these rights
continues until the infant arrives at the age of twenty-one, at which
age he is entitled to make election as to what nationality and domicil
he will accept, which election must be regarded as final. It is true
that such children, like all other citizens of the United States resid-
ing in a foreign land, may be regarded as bound to render the duty
of local obedience. Rut with the above limitation as to election they
are no more subject to the domiciliary municipal laws of such foreign
land, or clothed with its nationality, than are any other citizens of
the United States temporarily residing abroad. As will be seen by
authorities in an exhibit attached hereto, these views are sustained
not only by rulings of our own and English courts, but by the opin-
ions of leading jurists who are experts in this branch of law.
" It is true that in a letter of Mr. Hoar, when Attorney-General, dated
June 12, 18(50, we have the following statement :
" ' If, therefoi-e, by the laws of the country of their birth children of Amer-
ican citizens, born in that country, are subjects of its government. I
do not think that it is competent to the United States by any legislation
to interfere with that relation, or by undertaking to extend to them
the rights of citizens of this country, to interfere with the allegiance
which they may owe to the country of their l)irth while they continue
within its territory, or to change the relation to other foreign nations
which, by reason of their place of birth, may at any time exist.' I.*^.
Op. Atty. Genl. 80. See, to same effect, letter of Mr. Fish, Aug. 2.^.,
187:i. (For. Ilel. U. S., 187;{-4, vol. 2, p. 1102.)
" So far as this statement bears on the question of passports, in reference
to which it was made. I do not propose to discuss it, though even in
this limited relation I doubt its accuracy. But I do unreservedly
maintain tliat by the law of nations no legislation of a foreign state
can sul)ject either a person domiciled in one of the United States.
tenii)orarily residing in such foreign country, or a child born to him
"Circulars, HI. 237.
426.] DOUBLE ALLEGIANCE. 523
during such teuiix)rary residence, to tlie nninicipal laws of sucli
foreign country, so as to divest Iiini of liis lionie status, and to impose"
on liim the status of the country in which lie is temporarily resident.
" The conse(iuences of the latter doctrine are so disastrous that it is hard
to helieve that it was delil)erately intended to have heen advanced.
Were a person domiciled in one of our States (whether an adult or a
minor) suhjected to the municipal laws of a foreign country, in
which he is temporarily resident, and clothed with its stdtiix. he
might he placed permanently under the control of a guardian
appointed hy the authorities of such country: his lcgitim;i<y would
be subject to its laws; his marriage would be invjjlid if made such
hy its laws; by its laws would the succession to his itroperty be
determined; by its laws, as one of its subjects, would his property
be distributed in case of his death.
" For this Department, in its consular regulations and diplomatic instruc-
tions, to declare otherwise, would not only contravene the rulings of
our courts and the opinions of the great body of modern inter-
national jurists, but would interpose a serious difficulty in the way
of the obtaining, by persons domiciled in one of the United States,
the rights abroad to which they are entitled by the law of nations
and by the rulings of domestic courts. We will suppose, for instance,
that a person domiciled in the United States, but temporarily resi-
dent abroad, is subjected to personal taxation, or to other laws
determining status in the place of his temporary residence; or that
an effort is made to subject his legitimacy, or the legality of his
marriage, to the laws of such temporary x-esidence ; or to limit his
business capacity by such laws, or, on his death, to declare that his
estate by such laws is to be distributed. This is contested; and to
sup|)ort this adverse contention, we will suppose that it is said by
the authorities of such place of temporary residence: 'Undoubtedly
hy the law of nations personal status is determined by th(> place of
domicil, but by your consular regulations and diplomatic instruc-
tions you preclude yourselves from claiming for persons domiciled
in your States this right.' Hut that such a concession should not
be made by this Department I maintain for the following reasons:
" 1. Even supposing the question were one of doubt, it ought not to itc
decided in this summary way against persons domiciled luitlcr our
flag.
"2. The case is one belonging to the States, as domicil is incident to resi-
dence in a State (or Territoi-y, as the case may be), .and not to resi-
dence in the United States as a whole. A person, for instance, may
be domiciled in the State of New York, and thus become enveloped
in the nnuiicipal law of New York : but excei)t as domiciled in New
York, he cannot be domiciled in the United States. Domicil by the
law of nations, it must be remembered, is residence wit'liin a jtartic-
ular state, with the intention to make it a final altode. It may or
may not be coupled with domestic i>oliticjil i)riviU'g(>s. Domicil.
however, and not the i)ossession of political privileges, internation-
ally determines status.
"But while intention to ])ermanently rem.'iin is an essential incident of
domicil. this is not inconsist«'nt with temporary al)sencc. It is in
relation to iiersons KMiiporarily .absent, .-md to tlieir cbiiiln'n l)orn
during such temporary absence, that the i-viics I li.ivc cited l»e;ir
harshly in denying to them rights to which they arc entitled Ity the
law of nations. . . .
524 NATIONALITY. [§ 42G.
" This leaves the question of status in such cases to the courts, unpreju-
diced by any utterances from this Department. It may be that a
distinction now talicn in England l)et\veen civil and political domicil
may be hereafter internationally ac<"epte<l, and tliat it may conse-
(piently be held tiiat wliile domicil without naturaii/.ation imposes a
civil status, d»'tcrmininj; nnniicii)al rights, it does not imjtose jjolitical
stdtiis conferring i)olitical innnunities, r. //.. relief from military or
police duties. Uut be this as it may, no statement should be jH-r-
niitted to remain in the records of this Department sanctioning the
view that a person domiciled in the United States i.s b.v our action
precluded from dainnng the nunnclpal rights he is entitled to by the
rules of i)rivate international law." (17 MS. Opinions of Solicitors
of Dei)t. of State, 305.)
With regard to tliis paper, it may be ob.served, in tWe first place,
that a sharp distinction is made in laws and judicial decisions between
tlie civil status derived from domicil and the political status derived
from citizenship. This distinction is maintained not only in England
and in the United States, but may also be found in various codes of
Continental Europe. In some cases, indeed, as in Italy (see infra,
p. 811), citizenship is made the test of civil as well as of political
status; but in no case, it is believed, is political status made to depend
upon the civil status of the individual, as derived from domicil, under
the rules of private international law. In the second place, it is to
be noted that citizenship is the creature of municipal and not of
international law. It is true that a person may derive a qualified
nationality from the rules of international law in certain relations,
particularly in matters of prize; but this is a different thing from
citizenship. It has never been sujjposed, for instance, that a passport
might be issued to a British subject as a citizen of the United States,
])ecause, by reason of his having a belligerent domicil in the United
States, his property perchance might be subject to seizure and con-
fiscation on the high seas in a war to which the United States was
a party.
The opinion of Attorney-General Hoar referred, as is admitted, to
an api^lication for a passport, and the language which he employs is
j.ppropriate to that subject. He speaks of " citizens " and " sub-
jects," and of the " allegiance " which they owe. These words fairly
exclude the idea that he intended to deny to any person the civil
rights derived from domicil, the determination of which rights, as
Dr. Wharton observes, may be left, certainly primarily, to the courts.
Passports are granted to an individual as an evidence of his political,
not of his civil, status, and their issuance therefore is based, not on
domicil, but on citizcMiship. By the laws of the United States they
can l)e granted only to persons owing allegiance.
The doctrine of " election " necessarily implies the existence of
a double allegiance. This condition naturally arises where a person
§426.] DOUBLE ALLEGIANCE. 525
is born in one country to a father who is a citizen of another country.
By rules of nnniicipal JaAV, which generally prevail, such a person has
two citiz:enships by birth — (1) citizenship by virtue of the place of
birth (jure soli), and (2) citizenship by right of blood (jmr .san-
guinis), i. e., by virtue of the father's nationality. TTnless this be so,
the child on attaining his majority has nothing to elect. So far as
doniicil may play any part in the matter, its general tendency would
seem to be to enhance the claim of the country of residence, since it can
hardly be assumed that a person will usually be found to be domiciled
in a country other than that in which he lives.
"Robert AV. Wilcox, Alexander Smith, and several others, boiii
here of American fathers, have appealed for protection, which I have
been unable to extend, they being at j^resent under foreign jurisdic-
tion, with no law or treaty exempting them from th(> usual rule."
Mr. Willis, iiiin. to Iliiw.iii, to Mr. Grosliain, Sec. of State, M:ir<h 7.
1895, For. Kel. 1895, IL 8.50, in relation to persons :uT«>sted and held
under martial law for complicity in the insurrectionary pk^ in
Hawaii in 1895.
Although Lazarus Marks, a native of Prussia, but a naturalized
citizen of the United States, had, by reason of his permanent residence
in (juateniala since 1870, apparently renounced his naturalization
and had ceased to be entitled to an American passport, it was held
that his minor sons, although they were natives of (Juatcmala, Avere,
by virtue of section 1993 R. S., entitled to i)assports as citizens of the
United States until, by attaining their majority, they became "" com-
petent to elect another nationality."
Mr. Adee, Acting Sec. of State, to Mr. Comhs, No. 71, Sept. 15. 19<».">. For.
Rel. 1903, 595, citing Mr. Hill, Acting Sec. of State, to Mr. INIerry.
May 7, 1901, in the case of Rafael Franklin Iline. in Costa Kica, For.
Rel. 1901, 421.
See, also, Mr. Adee, Acting Sec. of State, to Mr. Beanpre, niin. to Arg.
Rep., No. 1(>, Aug. 30, 1904, For. Rel. 1904, 30, in relation to the case
of C. L. Tappen.
"WTiile the Department of State holds that the minor children of an
American citizen who has taken u}) a ])ermanent I'esidence al)road
are by virtue of section 1998, Revised Statutes, entitled dui'ing minor-
ity to passports, yet the Department has i-ul(>d : " \f born aftei- the
father has become the sul)j(H't or citizen of another power, oi' after lu>
has in any way expatriated himself, the childivn born al)r()ad ai-«' to
all intents and purposes aliens, and not entitled to protection from
the United States." (For. Rel. 1873. IT. 1191.) .Vnd again: "If
the father has, at the time of the birth of a son, abandoned his citi-
zenship in the United States, the son can make no claim to such cili-
526 NATIONALITY. [§427.
zenship." (For. Rel. 1885, 8J)().) These rulings were applied in the
'case of Robert Albert Boker, in Cierinaiiy.
Mr. Hay, Sw. of State, to Mr. Tower, ainbass. to Gennany, Ne». 192, May
31, 1!K)4. For. Rel. 1904, 314, citing Van Dyue on Citizenship, 34.
Compare For. Rel. 1873, II. 1191.
(2) PABTICULAR APPLICATIONS.
• '■ §427.
" AVith regard to the proposed laSv naturalizing' children born in
the Argentine Republic of foreign parents, with its
rgen me epu c. j.^.^j.Q^^pgg^jyg declaration, inasmuch as the Attorney-
General of the United States has decided that such individuals born
in the United States become endowed with the rights and liabilities
of our own citizens, the comity of nations enjoins that we should
acquiesce in any analogous legislation."
Mr. F. W. Sewird, Act. See. of f.'uvte, to Mr. Kirlv, No. 35, Nov. 4, 1863,
MS. Inst. Arg. Rep. XV. 183.
See C Op. 373, and 10 Op. 321 ; supra. § 373.
See, to the same effect, Mr. Fish. Sec. of State, to Mr. K'wk, No. 4, June
» !"' 18, 1869, enclosing a copy of Attorney-General Hoar's opinion of June
12, 1860. (MS. Inst. Arg. Rep. XV. 319.)
'- 1 have to acknowledge the receipt of your letter of July 17, 18G7,
ill relation to. your claim to American citizenship.
You are correct in your belief that the circumstance
of 3'our mothcr"'s being an English "woman does not impair the right
to citizenship derived from that of your father. The act of Congress -
to be found in vol. 10 of Statutes at Large, ptige C04, w^as passed for
the express purpose of removing any doubt on that point. Uj^on tak-
ing up 3^our residence in the United States, 3^ou will become a citize.'i,
in the full sense, Avithout any naturalization. At present, however,
you are in the position of having a double allegiance, the one which
you owe to ChiiC, from your birth within its jurisdiction, the other due
to this Govermnent as the son of a citizen of the United States. Until
you make your election to resids in this country, it is not in the power
of this Government to protect you against the enforcement of any
obligations you may be under as a citizen of Chile or any of the inci-
dental consequences which may result from that character.''
Mr. Seward, Sec. of State, to Mr. Vantassel, Sept. 10, 1867, 77 MS. Dom.
Let. 78.
See, to the same effect, Mr. Hunter, Act. Sec. of State, to Mr. Dutton,
Aug. 7, 1868, 79 MS. Dom. Let. 182.
By chapter 4, article 0, paragraph 1, of the Chilean constitution,
all persons born in Chile are declared to be Chilean citizens. On this
§ 427.] DOUBLE ALLEGIANCE. 527
ground it was held that the minister of the United States at Santiago
properly declined to intervene for the purpose of exempting from
service in the national guard the Chilean-born children of American
citizens.
Mr. Oluey, Sec. of State, to Mr. Strobel, uiin. to Chile, June 4, 189G, For.
Rel. 1896,- 34-35.
In 1885 the British minister at Bogota inquired of the Colombian
Government as to its views concerning the national-
ity, while they were in Colombia, of certain cliildreu
under the following circumstances: Their father was a native British
subject; their mother was born in Colombia of British parents: the
children were born in Chile, but had removed to Colombia Avith their
>
widowed mother. The Colombian Government, in reply, referred to
paragraph 2 of article 31 of the Colombian constitution, which i)ro-
vides that '' the children of a Colombian father or mother, whether
born within the territor}'^ of the United States of Colombia or not,
provided in the latter case they settle in the country, are Colombians."
On the strength of this provision, the Colombian Government stated
that there seemed to be no doubt that the children of the Colombian
mother were citizens of the country, provided they settled in it.
For. Kel. 1885. 208.
The Colombian Government, publislietl, Jtui. 15, 1885. tlie following
notice :
"According to the tenor of iirticle 31 of the national i-onsUlution. all such
* persons are Colombians, viz :
"(1) Who have been or may be born in the territory of the I'iiite(|
States of, Colombia, although children of foreign i)arents trjuisitory
sojourners in the same, if tlie.v (the children) shall come and settle
in the country.
"(2) The children of a Colombian father or mother, whelh.'r boiii in the
United States of Colombia or not, if. in the latter case, they shall
come arid settle in the country. ,
"(3) Foreigners who have obtained letters of naturalization.
"(4) Persons born in any of the Spanish-American Uepublics, \vheiiev(>r
they Jiave settled in the territory of the T'nion and declared their
desire to be Colombians before a competent autho'Mty.
"As several cases have alread.v occurred of Colombian citizens. m<M-ely on
account of being sons of foreigners, pretending not to be Colombians.
the attention of the public is directed to the national pres<ripts al>t)ve
set forth.
"Notice is likewise given that the issue of i)assi>orts, whether for tiie use
of Colombians or of foreigners, is a function exclusively pcrtaiiiini:
to the constitutional authorities of the Republic." (For. Hel. 1,SS5.
204.)
In commiuiicating this notice to the Department of State. Mr. Scruggs,
American minister at BogotA. .January ."{O. 1885. said:
"I apprehend, in view of the Colombian fundamental law icAMicd to.
that persons born in this country whose fathers were at the time
528 NATIONALITY. [§427.
ritizens of the United States, have a dual nationality ; and that,
while in Colombia, their Colombian nationality nuist prevail.
" In aeeordanee with this principle therefore, and until instructed other-
wise by the Department. I shall, if a])|)lied to, Krant passi)orts to
such persons; but with the express caution that such passjMjrt will
not necessaril.v confer the rij^ht to protection by the Cnitevl States
(Jovernment, as aj^ainst that of Colombia, wliile the holder remains
in Colombia." (For. Kel. iy.S.">. 2(J4.)
V. ap[)lied to the American legation in Paris, in 188^3, for a cer-
tificate or attestation that he had preserved his
France. ...
American nationality. He was born at Bordeaii.x,
France, in 18(')2. His father, however, who also was a native of
France, had lived in the United States 35 years, and in 18r)3 was nat-
uralized, hut in 1851) returned to France, where in 1874 he died. V.
had never been in the United States, and expressed no intention of
going there to reside, but stated that he had property interests which
might render it necessary for him to visit the United States at some
future time. Held, that V. was not entitled to a pass])ort — the lusual
form of attestation of xVmerican nationality to foreign govermnents.
Mr. Frelinghuysen, Sec. of State, to Mr. Morton, min. to France, Nov. 9,
1888, For. Kel. 1883, 285.
" In 1873 the son of John Peppin, a Frenchman by birth, invoked
the protection of this Government against the operation of French
military law. The circumstances of his case were these: Peppin,
when a young man, emigrated to the United States, was educated in
Kentucky, became a citizen of the United States, resided in New
Orleans several A'ears, returned to France, married a French woman,
and remained in France until his death. Some eight years after his
return to France two children were born to him, one of them the son
in question, who at the time of his application was eighteen years
old. Protection in this case was refused by my predecessor, Mr.
Fish."
Mr. Frelinjrhuysen, Sec. of State, to Mr. Lowell, min. to England, Feb.
27, 1884, For. Rel. 1884, 21G, 218.
By the French law of December IG, 1874, amending article 1 of
the law of February 7, 1851, " any individual born in France of a
foreigner Avho himself Avas born there is French, unless, in the year
following the time of his majority, as fixed by French rule, he
claims his foreign nationality by a declaration made either before
the municipal authorities of the place of his birth or before the
diplomatic or consular agents of France abroad, and establishes
that he has maintained his original nationality by an attestation
in due form of his government, which will remain affixed to the
declaration."
§ 427.] DOUBLE ALLEGIANCE. 529
By this law a man born in France of a father who was himself
born there, but who had become by naturalization a foreigner, is
considered a French citizen unless, before he reaches the age of
twenty-two, he establishes in the prescribed manner his retention of
his original nationality, that is to say, the acquired nationality of
his father. The law of 1874, as above quoted, requires the individ-
ual to jjrove that he has maintained his original nationality by " an
attestation in due form of his government;" but the circular issued
by the French mayors to the sons and grandsons of foreigners born
in France states that each one of them nuist produce a certificate
of the diplomatic agent of the country of which he claims to be a
citizen to the effect that he has not lost his original nationality.
Mr. Vignaud, charge at Paris, to Mr. Bayard, Set-, of State, June l.'S,
1886, For. Rel. 1886, 301.
But by the law of 1889, as amended by the law of 1893, " any person
born in France of foreign parents, one of whom was also born
there, is French, excei>t that in the year following his majority
he may disclaim his French status, by complying with the require-
ments of paragraph 4, if it is the mother who was born in France."
(Mr. Yignaud, charge, to Mr. Gresham, Sec. of State. Xo. 47, Aug.
22, 1893, and enclosure. For. Rel. 1893, 303.)
Children born abroad whose father was, at the time of their birth,
a citizen of the United States, are, by virtue of the act of February
10, 1855, citizens of the United States, and within the sovereignty
and jurisdiction of the United States are entitled to all the privi-
leges of citizens. As to whether they are entitled, while continuing
to reside abroad, to passports as American citizens, the answer must
be more qualified. If, by the laws of the country of their birth, such
children are subjects of its government, it is not competent by any
legislation to interfere with that relation or with the allegiance
which they owe to the country of their birth while they continue
within its territory. If, therefore, they receive passports as citizens
of the United States, such passports should be qualified with the
statement that, although they are citizens of the United States, their
rights as siich are subject to the rights, obligations, and duties which
nuiy attach to them under the laws of the country in which they
were born and in which they continued to live.
" The conclusions above .stated, which I adopt, were affirmed ex-
plicitly by Mr. Frelinghuysen, in instructions to Mr. Kasson, Jan-
uary 15, 1885, (Foreign Relations, Germany, 1885), and impliedly
by Mr. Frelinghuysen in instructions to Mr. Morton, November i>,
1883 (Foreign Relations, France)."
Mr. Bayard, Sec. of State, to Mr. Vignaud, charge at Paris. .Tuly 2. 1886.
For. Rel. 1886, 803, 304, referring to the opinion of iloar. At. -Gen.,
June 12, 1869, 13 Op. 89.
H. Doc. 551— vol 3 34
530 NATIONALITY. [§ 427.
" If Karl Kling:enmeyer's father [a native of Germany wlio had
been naturalized in the United States] was at the
Oermany. ^-^^^ ^^ j^j^ son's birth a citizen of this country [the
United States], the son was such a citizen, while possibly by the
German law (which I have not at hand) he might also be a citizen
of the place of his birth [(lermany). On general principles such
conflicting citizenship is decided according to the laws of the one of
the two countries claiming allegiance within whose jurisdiction the
individual happens to be. (Vol. 13, Opinions Attorneys-General,
p:89.)"
Mr. Frelinghuysen, Sec. of State, to Mr. Kassoii, luin. to Germany, Jan.
15, 1885, For. Rel. 1885, .'«)(>, m)8.
" The two sons of Mr. Smith [a citizen of the United States who
had been naturalized in Mexico], aged respectively
seven and ten years at the time of their father's death,
were undoubtedly American citizens by birth, inasmuch as the fa-
ther's change of allegiance occurred after the birth of the youngest
child. If Avithin the jurisdiction of the United States, their right to
American citizenship would be unimpaired, and even if within Mexi-
can jurisdiction during minority, they would, in the absence of any
Mexican law specifically attaching the altered status of the father
to his minor children within Mexican jurisdiction, be still properly
regarded as American citizens. But if there be such a law, or if on
attaining majority they remain in Mexico and come within any pro-
vision of Mexican law making them citizens of that Republic, they
could not be regarded as citizens of the United States.
" The registration of the younger son, by the widowed mother,
after the death of the father, although irregularly and unnecessarily
delayed, is in contraA'ention of no rule, the child's citizenship at birth
being clear."
. Mr. F. W. Seward, Acting Sec. of Stafe, to Mr. Foster, uiin. to Mexk-o,
Aug. 1.3, 1879, For. Rel. 1879, 824.
As the Mexican law "does not nialce such a minor [i. e.. a child l>oru in
Mexico of an alien father] a Mexican during minority." it was held
that a minor child, born to an American father in Mexico, might
receive there a passport as a citizen of the United States. (Mr.
F. W. Seward, Act. Sec. of State, to Mr. Foster, min. to Mexico, July
2, 1879, For. Hel. 1879, 815.)
See, also, Mr. F. \V. Seward. Act. Sec. of State, to Mr. Noyes, No. 115,
Dec. 31, 1878, MS. Inst. France, XX. 7.
" The Russian naturalization law of March 6, 18G4, A. 12, provides:
' Children born of foreigners not Russian subjects,
born and educated in Russia, or, if born abroad, yet
•who have completed their education in a Russian upper or middle
§427.] DOUBLE ALLEGIANCE. 531
school, will be admitted to liussian allegiance shoidd they desire to
do so within the succeeding year after they shall have attained their
majority.'
" This provision appears to be permissive, not compulsory, and to
contemplate that persons born in Russia of alien parents, may, under
certain specified circumstances, make election of Russian citizenship,
and thereupon be admitted to such citizenship by some formal act of
naturalization.
" The precedents you have examined would seem to have led you
into the misapprehension that the theory of dual allegiance during
minority is involved, requiring formal opfion between two conflicting
claims. This is, indeed, the case according to the nninicipal law of
certain countries.
" The French rule is typical, and under it ' a person born in France
of alien jiarents and domiciled in France at the time of reaching
majority, is allowed one year after attaining majority to elect to
retain the citizenship of his parents. In default of so doing at the
expiration of that period, and if retaining French domicil. he is to
be deemed a citizen of France.' (Foreign Relations, 1891, pp. 493,
494.)
" The contrast between the two rules is clear. In France, upon the
expiration of the probationary year following majority, the domi-
ciled alien loses his right to elect the status of his parents. In Russia,
as explained to you by the Russian minister, if the election of Russian
citizenship be not availed of within the prescribed year, the person
loses his right to become a Russian subject.
" The law of the United States does not, as you seem to suppose,'
provide for option of American citizenship l)v ])ersons situated as you
represent the Powers brothers to be circumstanced. By section 11>9:J
of the Revised Statutes the children born abroad to citizens of the
United States ' are declared to be citizens,' with the sole excei)tiou
that such citizenship shall not descend to chihbvn whose fathers
never resided in the United States. The precedents you (juote con-
template recognition of a formal option, only in the cases where a
conflict of laws arises under the legislation of the foreign country of
birth and sojourn. In Russia, however, it appears that such conflic-t
does hot arise, and that in the event of not acquiring Russian status
in the jiermitted way, the persons in question will be regarded after
attaining nuijority as lawful citizens of the ITnited States."
Mr. Adec, Acting See. of State, to Mr. ("ooiiihs, niiii. to .Tai>.iii. Ai>iil US.
1893. B^or. Rel. IS!).'?. 401.
Mr. Coombs, in a di.spatcli of Marcli 21. ISiKJ. to w liicli Mr. Adoo's instruc-
tion is a reply, pointed out. as the result of a consuitalion willi liis
Russian colleague, an error in the translation of tlie foregoing pro-
.532 NATIONALITY. [§ 428.
vision (»f tlu' KussiMii law, as prlntod in the He|X)rt of tlio British
Royal C'oiniiiissiou of 18«*>n on Naturalixatioii and Alh'siaiK-e, and
reprinted in For. Uol. 187:5, II. 1288. (For. Hel. 189:}, 3'j:}.)
2. Xativk-Hor.n Childkkn.
(1) UOUULK ALI.K0IANCK UY ItlRTH.
§ 428.
An application havin^jf been made for a passport for a youth of
seventeen, wliose father desired to send him to Germany as a student,
tlie Department of State said: ''The yoinig man referred to, under
the Constitution of the United States, having been born in this coun-
try, is, while subject to the jurisdiction of the United States, a citizen
of the United States notwithstanding the fact of his father being an
alien. As such citizen he is entitled to a passport. This, of course,
would be a sufficient protection to him in every other country but that
of his father's origin — Germany. There, of course, as the son of a
(lerman subject, it may be claimed that he is subject to German mili-
tary law, and that, not being then subject to the jurisdiction of the
United States, he can not claim the rights secured to him by the 14th
amendment to the Constitution. It is proper, therefore, that I
should add, in the interest of young Mr. J , that it will be peril-
ous for him to visit Germany at present."
Mr. Frelinghuysen, Sec. of State, to Mr. O'Neill, M. C, Aug. 8, 1882, 1-13
MS. Dom. Let. 270.
See, to the same effect, Mr. Hunter, Second Assist. Sec. of State, to Mr.
Ford, Nov. 18, 1881, 139 MS. Dom. Let. (>04.
In Sept., 1878, M. S., the wife of J, A., of the canton of Luzerne,
Switzerland, came to the United States with Joseph H., also a
Switzer. In April, 1879, she gave birth to a son, who was baptized
as the son of Joseph H. Meanwhile, divorce proceedings were insti-
tuted in Switzerland b}' J. A., who obtained a decree of divorce from
M. S., in fontuTnaeiam, shortly after the birth of the son. In August,
1880, M. S. died, and Joseph II. took the child to his home, in the
canton of Aargau, Switzerland. The Swiss Federal Council held
that the child was a citizen of Luzerne, presumably because it was
born before the decree of divorce was granted. The canton of
Luzerne, however, suggested that the child was a citizen of the
United States, and the question was. referred to the American lega-
tion, with a view to the issuance of a passport to the child as an
American citizen. The legation declined to issue a passport, and its
action was approved.
Mr. Frelinghuysen, Sec. of State, to Mr. Cramer, No. 'M, June 4, 1883,
MS. Inst. Switz. II. 178.
§428.] DOUBLE ALLEGIANCE. 533
"I have received your No. 418, of the 8th ultimo, respecting an
application for a passport made by Ludwig Henckel, who states he
was born in St. Louis, Mo., January 10, 1874. He was taken in 1875
to Venezuela by his father, who claims to have previously declared
his intention to become a citizen of the United States, and who, on
January 13, 1882, was appointed c(msular agent of the United States
at San Cristobal, Venezuela. After thirty years' absence, the father
returned to Hanover, his native city, taking the son witli him. The
latter, it appears, is now serving an apprenticeship at Hamburg, and
at its expiration, three years hence, ' declares it to be his intention to
return to America to reside.'
" Notwithstanding the alienage of the father the son is by birth a
citizen of the United States. His absence from the country during
minorit}^ and while under the control of his father should not be
counted too strongly against him, especially in view of the fact that
he declares his intention of returning to this country to reside after
the completion of his apprenticeship. If he will take the necessary
oath to that effect he would seem to come substantially within this
rule and a passport may be issued to him. In issuing him a passport,
however, it is proper that the legation should inform him that it does
not guarantee him against any claim w'hich may be asserted to his
allegiance or service by the Government of Germany while he re-
mains in that country. Having been born of a German father, con-
flicting claims with respect thereto may arise, which it is not the
purpose of this Government b}^ the issuance of a passport to in any-
wise prejudice."
Mr. Blaine, Sec. of State, to :Mr. Phelps, luin. to Germany. May .S, 1892.
For. Uel. 1802, 180. See Mr. Phelps' No. 418, ul. 184.
Similar views were expressed in the case of Ah'xander Block, id. 184,
188, 101.
The child horn to an alien in the United States loses his citizenship <in
leaving the Pnited States and returnini; to his parent's allejiiance.
(Mr. Blaine. Sec. of State, to Mr. O'Neill, Nov. 1.1. 1881 — l.'Ut .MS.
Dom. Let. .")7-2. )
While a person born in the United States, (hough of alien ])arents,
is by the laws thereof a citizen, yet, should he be taken by his parents
whih^ a minor to the countiy of which they are subjects, lie l)e('()mes
amenable to the laws of that country and siil)je('t to a claiiu of
allegiance thereunder jure saugidiiis. On this ground the I)e|)artnn'iit
of State refused to issue a pass])ort for the ])r<)te('ti()n of a minor.
born in the United States, wliose pai-ents jiroposed to ictuiii witli him
"for a brief period" to the country (Russia) of which they were
subjects.
Mr. Gresham, Sec. of State, to Mr. Seely, .March 0. is:t:t. I'.to MS. Dom.
Let. 553.
534 NATIONALITY. [§ 428.
On the other hand, a i)assi)ort was issued to a minor, i>orn in the United
States, whose father had been naturalized as a Uussian suitjeet, with
a warning that he too might be regardetl by the Russian Goveriunent
as its subje<'t sliould he voluntarily enter that country. (Mr.
Gresham, Sec. of State, to Mr. Foote, Jan. 14, 1894, 200 MS. Dom.
Let. 247.)
O. H. R., was born in Baltimore, Md., August 21, 1860, of German
parents, who four years later returned to Germany, taking him with
them. He remained in Germany till 1881, when he was examined for
military service, and, being found then to be unfit for it, was
ordered to appear the next year. He then left for America, where
he had since resided. The Department of State said: "Upon this
state of facts you are under our laws a citizen of the United States,
by reason of your birth in this country, but by the German law you
are a subject of Germany. Should you voluntarily place yourself
again within German jurisdiction, this Government w'ould not be
warranted in intervening to protect you from trial and punishment
for violation of the military laws of that coimtry."
Mr. Uhl, Acting Sec. of State, to Mr. Rudolph, May 22, 1805, 202 MS. Dom.
Let. 298.
Roberto J. J. Pinto was born of Costa Rican parents at San Francisco,
Cal., in 1879. His parents resided in California alx)ut six yeare.
When he was three years of age they returned to Costa Rica, where
they had ever since remained and where the son was rearetl ai»d
educated. He did not speak English and had never been registered
at the United States consulate as a person claiming its protection.
In 1899, when twenty years of age, he was called uijou. in accordance
with the law of Costa Rica, to perform military drill. On these
facts it was held by the Department of State th.-it the youth was
entitled to a passport and protection as a citizen of the United
States, as well as to exemption from military service, under article 9
of the treaty between the United States and Costa Rica of 1851,
which exempts the citizens of the one country in the territory of
the other from all compulsory military service whatsoever. This
decision was placed by the Department of State on the following
ground: "He [Pinto] was born in the United States, and no prin-
ciple is better settled than that birth in the United States, irresju'c-
tive of the nationality of the parents, confers American citizenshit).
The right of election of nationality, which it is generally conceded
a person l)orn under such circumstances has, cannot be exercised
until he attains his majority. The father cainiot by any act of his
alter the status conferred ui)on the son by his birth in this country.
The United States circuit court in Ex parte Chin King (:{5 Fwl. Rep.
354) said: ' In my judgment a father cannot deprive his minor child
of the status of American citizenshij) impressed uiK)n it by the cir-
cumstances of its birth under the Constitution and within the juris-
diction of the United States. This status, once acquired, can only
be lost or changed by the act of the party when arrived at majority,
§428.] DOUBLE ALLEGIANCE. 535
and the consent of the Government.' " ( Mr. Ilay, Sec. of State, to
Mr. Merry, niin. to Costa Kica. Oct. 25, 188!), For. Hel. 1899, r>88. ;")81). )
As the statement above quoted, from tiie oi)inion in Ex parte Chin Kinj?,
formed in Pinto's case, as it seems to have done less pointedly in
certain nearly c-ontemixn-aneous but less obvious instances, the basis
of a departui-e from what had seemed to be the settled law in regard
to double allegiance, it is proper to point out that the statement of
the court contained nothing new, unless indeed the c-ourt intended,
by the phi-ase " consent of the Government." to deny the force in the
United States of the act of Congress of 18()8. It is possible, how-
ever, that the phrase was somewhat loosely employed, and if so,
the statement contains nothing of special moment, so far at least
as the present question is concerned. On the contrary, the legal
inability of the parent to deprive his child of his natural allegiance
or natural allegiances is itself the foundation of the doctrine of
double allegiance in such cases. The father, however, as the head
of the family^an institution which it is the policy of all civilized
states to preserve — possesses, under normal conditions, as a neces-
sary incident of the parental relation, the power to control the move-
ments and regulate the domicil and national character of his minor
children; and if the child, while living under the protection of his
home government, is required to perform the duties of allegiance to
it, there is In such requirement no denial, express or implied, that
he may ix)ssess a double nationality. By the laws of the Unitetl
States the minor children of a naturalized citizen are, if dwelling
in the United States, citizens thereof by virtue of the parents'
naturalization. It is believed that no objection has ever been made
to the United States enforcing, within its own jurisdiction, either
this legislation or the rule, also embodied in its laws, of citiz«Miship
by birth jure sanguinis.
For the use, on other occasions about the same time, of language similar
to that employed in IMnto's case, see For. Rel. 1899, 7()0. 7»?2 ; UM)1,
r».TJ. These rulings stand, together with that in IMnto's case. i>y
themselves, and have not since been followed.
It may be remarked that the (luestion of protection in cases of double
allegiance cannot be determined off-hand by lixed i)resumi)tions, since
by the law of the particular country in which the ([uestion ari.scs
a preference may be given during minority to the one source of
nationality over the other.
Dec. 31, 1896, the American ambassador at Berlin requested the
discharge from the Prussian military service of one Alfred Mever.
He stated that Meyer Avas horn at Baltimore, Md., Dec. 16, 187."), and
that his father was a nattiralized citizen of the United States.
The German Government, March 14, 181)7. denied that the elder
Meyer was naturalized in the United States, and stated that as
Alfred Meyer had returned with his father to (iermany in lS7t) and
had since resided there, with the exception of a visit to Switzerland
in 1895, he was to Ik' considered a Prussian subject, even though he
was by birth also an American citizen. Reference was made to a
note of Jan. 15, 18«(), in the case of Henry Kabien, as showing that
536 NATIONALITY. [§ 428.
the treaty of Feb. 22, 1868, had no relation to persons of double
nationality. The request for Meyer's discharge was therefore
refused.
The Government of the United States, April 20, 1897, pointed out
that there was an important difference between the cases of Meyer
and Rabien, in that Rabien made a formal declaration before a (ler-
man tribunal that he did not intend ever to settle in America. The
case of Ferdinand Revermann, in 1885, was, said the United State.s,
a " case in point." Revermann's father emigrated to the United
States from Germany in 1850, was naturalized in Illinois in 1850,
and resided continuously in America till 1871. The son was born in
Illinois in 1860, was taken to Germany by the father in 1871, and
continued to reside there till 1880. In the latter year the landrath
at Miinster certified that as he was born a citizen of the United States
his name would be stricken from the military rolls, and this was
done; and Dr. Busch, the German minister for foreign affairs, while
contending that the father had renounced his American naturaliza-
tion, said: "American law, so far as known here, contains no pro-
vision which makes the renunciation of American naturalization by
the father act upon his minor sons also. The Government of H. M.
the Emperor has, therefore, no hesitation in recognizing such persons
as American citizens. . . . Individuals possessing this character
cannot be made to perform military service in Germany."
' In June, 1897, Meyer was discharged from the army as " dienst-
untauglich " (unfit for service), but the German Government con-
tinued to maintain its opinion as to his liability to perform military
duty, and declined to release him from such liability. The case
of Revermann was declared to be in a legal sense different from
that of Meyer. " With Revermann," said the German Government,
" it was the case of an American citizen who was born after his
father was naturalized in America, and w' ho therefore never pos-
sessed German nationality, and on his coming to Germany was to l)e
solely regarded an American citizen. With Alfred Meyer, on the
other hand, the acquisition of American citizenship was based solely
on his birth in the United States, while the naturalization of his
father in America could not be proved. According to investiga-
tions made, the latter remained a Prussian subject until the time of
his death. His son, therefore, also possesses German nationality by
descent, and if through his birth in Baltimore he is considered by
the American side as at the same time an American citizen, it can
only be stated that through his double nationality he will have to
fulfill his duties toward both countries."
Mr. Uhl, Am. anib., to Baron Marschall, luin. of for. aff., Dec. 31, 189(5;
For. Rel. 1897. 195 ; Baron Marschall to Mr. Ubl. March 14. 1897, id.
195 ; Mr. Sherman, Sec. of State, to Mr. Uhl, April 20, 1897, id. 196 ;
\
§428.] DOUBLE ALLEGIANCE, 537
Baron von Rotenhan, acting niin. of for. aff., to Mr. White, Am.
aiBb., July 23, 1897, id. 20L
See, also, Mr. Adee, Second Assist. Sec. of State, to Mr. Wiliuski, Aug.
19, 1897, 220 MS. Dom. Let. 352.
Albert F. Gendrot was born at Cambridge, Massachusetts, April 28,
1866, his father being a Frenchman, who had resided in the United
States since 1847. In 1870 the father returned to France, but after
remaining there a few years he resumed his residence in Boston. lu
1885, however, he went back to France with his family, including his
son Albert, then nineteen years of age, who bore an American pass-
port. In 1887 Albert was notified to perform military duty, and. on
failing to respond, was arrested and imprisoned. In reply to an aj)-
peal made in his behalf by the United States legation in Paris, the
French (xovernment stated that, as by the French law a person born
abroad to P^rench parents was French, the case presented no ii-regu-
larity. The legation answered that the case was not one in which the
rule of jus sanguinis could be " strictly applied; " that at the time of
Albert's birth his father was " regularly domiciled " in the United
States, where he resided thirty years, giving his son an American edu-
cation, and that the latter was only "" temporarily " in France.
The Department of State approved the course of the legation, and
instructed it to use its " good offices " to obtain Gendrot's release froui
military service, and added: " You will, however, advise hiui that his
remaining in France after he becomes of age may be regarded as an
election of French nationality (see Wharton's Digest, vol. 2. J^ 188,
pp. 396-7, 2d edition), and that his only method of electing and
maintaining an American nationality is by a prompt return to this
country."
Mr. Bayard. Sec. of State, to ISIr. McLane. niin. to France. Dec. 28, 1887.
For. Rel. 1888. I. 498. See, also. For. Kel. 1888. L 49.".-4!t8.
The French (iovernnient subsequently stated that (Jendrot, if he desired
to a.ssert his American citizeiishii), shoidd apply to the courts, since
the nnlitary authorities would strike his name from the rolls only on
tlie strength of a judicial decision declaring him to he an alien. The
legation suhse(iuentl.v reported that, being alumt to be rearrested and
imprisoned, he had left France, since he understood that, as he was
by French law a Frenchman, an ai>pIication to the courts could not
be successful. (For. Kel. 1888. I. 499.)
In 1808 Gendrot returned clandestinely to Frauce. thinking that
his presence Avould not be detected. Early in ISO*.), being then (hii-ty-
three years of age and having passed the j)erio(l of military serxice in
the active army, he was notified to appear before the military author-
ities to e.\i)lain why he did not comply with the order issued to him
in 1887 to join the regiment to which he had Ihh'u assigned. Again
the legation intervened, representing that as he had passed the age of
538 NATIONALITY. [§ 428.
active service he might, according to the hiw of 1889, renounce his
French citizenship without the permission of the French (Jovernment.
The case came before thesecond council of war, February 18, 1899,
and upon application of his attorney, whom the court had assigned
to him, a decision was postponed in order that he might have the
question of his nationality decided by a civil tribunal. It appearing
that Oendrot would probably be unable to employ counsel before the
civil tribunal, the embassy of the United States was directed, if neces-
sary, to arrange with its counsel to look after the case, with the under-
standing that a reasonable fee might be charged for the service. In
the last report of the case by the embassy, April 5, 1899, the civil
proceeding was not yet terminated. On March 29, 1899, howevei',
an important note was addressed to the embassy by Mr. Delcasse,
minister of foreign affairs. In this note the ground was taken that
Oendrot must be considered as French in accordance with article 8,
section 1, of the Civil Code (old article 10), and that the question
whether an individual had lost his title to French citizenship by
establishing himself abroad without any intention of returning
depended upon matters of fact '"which the courts, sovereign judges
in questions of nationality, can alone decide." Finally, said Mr. Del-
casse, the fact that Gendrot had passed the age of service in the active
army did not give him the right to claim foreign nationality. He
could make effective such a claim " only by showing that he has been
naturalized in the United States in accordance with the laws in force.""
Moreover, in order that his naturalization might be effective with re-
gard to France, he " should have a formal authorization." Hence he
remained in the position of one still subject to the obligations of mil-
itary service in the active army. " It is," said Mr. Delcasse, " the
fact of having complied with the obligations of the military service
in the active army and in the reserve, and not the fact of having
reached the age when one is transferred to the territorial army,
which enables a Frenchman to have himself naturalized abroad with-
out the consent of the Government."
Commenting on this note the American ambassador said : " The
minister of foreign affairs, expressing the view of the minister of jus-
tice, assumes (juite a new position. In its correspondence with this
embassy, and particularly in the case of Giron (1897), the French
Government had admitted that a Frenchman having passed the age
of service in the active army was no longer obliged to obtain permis-
sion from the French authorities to change his original nationality,
an admission which is in strict conformity with the revised article
17 of the Civil Code."
Mr. Porter, ambass. to France, to Mr. Hay, Sec. of State, April 5, 1899,
For. Rel. 1899, 271.
§ 4-^-] DOUBLE ALLEGIANCE.
539
In a letter of November 20. 1897. Mr. Adee, Second Assistant Secretary
of State, replying to an inciuiry of (Jendrofs before tbe latter went
to France, said: " Should you voluntarily jait yourself within French
jurisdiction, the dual claim of that country to your allegiance would
revive and you could scarcely hope to escape judicial proceedings,
perhaps under added disadvantage of being regarded as a fugitive
from military service by reason of your return to the Ignited States
in 1888. There is no naturalization treaty between the T'nited States
and France. Under the Fi-ench code a person born a Frenchman
can only lose that status by process of law. one of the causes of
such loss being naturalization in a foreign country. Ycm have not
been naturalized in the United States, and the fact of your being
born In the United States is by French law no bar to the Fren<h
claim upon your allegiance; it is. on the contrary, a case expressly
provided for by that law, so that the French courts will be pre-
cluded from declaring you to be anything but a French citizen should
the case actually arise for judicial determination. This contingency.
however, could not arise, so far as seen, except by your own volmi-
tary act in returning to France, and in such a case it is (loui)tful
if this Government could efiiciently i)rotect you outside of its own
jurisdiction." (For. Rel. 18!m, 2()1)-L>70.)
(2) CHANGE OF PABENTS' NATIONALITY.
§ 429.
The 4th section of the act of April 14, 180-2 (Rev. Stat. §2172).
making children of naturalized persons citizens, '* is only a municipal
law, and can have no effect beyond the jurisdiction of this govern-
ment and especially in Holland, if it should be in conflict with the
local law of that country. If, therefore, Johannes [whose citizenship
was contested I voluntarily placed himself within Dutch jurisdiction,
his rights and his obligations nnist be measured by the laws of Hol-
land and not by the laws of the United States."
Mr. Marcy. Sec. of State, to Mr. Wendell, Sept. 7, 18r)4. 4.'^ :MS. Dom. L*'t.
102.
S., a Prussian subject by birth, emigrated to the Ignited States in
1848, and became naturalized in 1854. In the following year a son
was born to him. Four years later S. return(>d to (lermany with his
family, including the infant son, and settled at AViesbaden. in Nas-
sau, where he afterwards resided. In 18(')(> Nassau became incorjio-
rated into the North German Confederation. In 1874, on reaching
the military age, the son was called upon by the (ierman (iovermueut
to perform military duty. The father invoked the interveiuiou of
the American legation at Berlin, but declined to give any assurance
as to return to the United States. By Art. IV. of the treaty of
18G8, between the United States and North (Jermany, it is stii)ulated
that if a citizen of the one country, naturalized in the other, renews
540 NATIONALITY. [§ 429.
his residence in the country of his origin without an intent to return
to the country of his adoption, he " shall bo held to have renounced
his naturalization," and 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." Held, (1) that the father must
be deemed to have abandoned his American citizenship and to have
resumed the Cierman nationality; (2) that the son, being a minor,
acquired under the laws of Germany the nationality of his father,
but did not thereby lose his American nationality; (3) that upon
attaining his majority, the son might, at his own election, return and
take the nationality of his birth or remain in Germany and retain
his acquired nationality; (4) yet that during his minority and while
domiciled with his father in (irermany, he could not rightfully claim
exemption from military duty there.
Steinkauler's case, Pierrepont, At. Gen., 1875, 15 Op. 15.
Tbe minor child of a Spaniard, born in tlie United States and while
in the United States, or in any other country than Spain, is a citi-
zen of the United States. "The United States has, however, recog-
nized the principle that persons although entitled to be deemed citi-
zens by its laws, may also, by the law of some other country, be held
to allegiance in that country." (Mr. Fish, Sec. of State, to Mr.
Cushing, Feb. 16, 1877, MS. Inst. Spain, XVIII. 115.)
See, also, Steinkauler's case affirmed, in Mr. ^Vharton, Act. Sec. of State,
to Mr. Goldsmith, Sept. 3, 1890, 179 MS. Dom. Let. 88.
" If the father . . . did in fact renounce his American citizen-
ship and resume his original allegiance, in a manner recognized by the
laws of his native country, that fact would operate as a renunciation
of the adopted citizenship for his minor children, at least while they
remain within the jurisdiction which their father reacknowledged."
Mr. Frelinghuysen, Sec. of State, to Mr. Kasson, min. to Germany, Jan. 15,
1885, For. Rel. 1885, 396, 397.
In April, 1885, John L. Geist applied to the American legation at
Berlin for a passport as a citizen of the United States. He was then
sixteen years of age, having been born in the United States in 1809.
He gave as his reason for wishing a passport the fact that he had
been notified by the German authorities that he might not remain
in Germany later than the 1st of the following August. It appeared
that his father, a German subject by birth, emigrated to the United
States in 1854, but was not naturalized till 1872. Subsequently,
in the same year, he returned to Germany, where, early in 1885, he
was formally readmitted to German allegiance. In the certificate
of readmission it was expressly stated that it included five of his
minor children, who were designated by name. John L. was not
among them. It was held that he was entitled to a passport for the
following reasons :
§4:29.] DOUBLE ALLEGIANCE. 541
1. That, at the tmie of his birth, his political as well as civil status
was in the United States.
2. That, under ordinary circumstances, his status in both relations
would have followed that of his father when the latter returned to
Gennany and resumed his German nationality, but that, as the cer-
tificate of readmission by its own terms impliedly excluded the son,
the change of the father's nationality and domicil did not affect the
nationality and domicil of the child; that the German Government
not only accepted the father's change of nationality on the conditions
specified, but, by requiring the son to return to the United States at a
specified time, conceded the continuance of the latter's American
nationality.
Mr. Kasson, luiii. to Germany, to Mr. Bayard. Sec. of State. April 1.5,
1885 ; Mr. Bayard, Sec. of State, to Mr. I'endletou, min. to (Jermany,
May 12, 1885, For. Kel., 1885, 408, 414.
" By the law of nations, an infant child partakes of his father's
nationality and domicil."
Mr. Porter, Act. Sec. of State, to Mr. Winchester, niin. to Switz., Sept. 14,
1885, For. Rel. 1885, 811.
" It has been settled by frequent rulings in this Department that
when a child, who is born in the United States to a father tem-
porarily here residing, returns with his father to the latter's country
of native allegiance, such child cannot, during his minority and his
residence in such country, call on this Department to intervene in
his behalf against such country. In the present case the child was
posthumous; the father, though he had taken up a ' pernuuient ' resi-
dence here and had therefore acquired a Xcav York domicil, had
been here but four years at the time of his death, and had not been
naturalized; and the mother, in 1870, when the child was one year
old, took him back to Germany, where she has resided with him ever
since. An interesting question here arises as to whether a widowed
mother can, by the principles of international law, change, by her
own action, without the approval of the court of the child's douiicil,
the child's domicil and nationality. That it cannot l)e so changed
is held by eminent continental jurists. (Bar, §31; 1 Foelix, pp. T)!,
55, 94; Denisart, Domicile, §2.) ' Der Wittwe,' says Bar, whose
authority both in (Jermany and this country is deservedly high,
' kann dagegen das Kecht das Douiicil ihrer minderjiihrigen Kindci-
7Ai veriindern, nicht zugestanden werden.' To the same effect is
Lamar /'. Micou, 112 U. S. 452. According to this view the mother
of the child in question could not, on the bare facts stated to us,
change his domicil so as to withdraw him from the i)r()tection of
the United States. But as h« is now in Germany the question is
542 NATIONALITY. [§429.
one wliich. if niilitary service be insisted on, must l)e presented to the
German (iroverninent for consideration, and their views heard before
this Department can express any final determination in this relation.
'" The treaty of 1808 provides that ' citi/AMis of the North German
Confederation, who become naturalized citizens of the United States
of America and shall have resided uninterruptedly within the United
States five years, shall be held by the North (Jerman Confederation
to be American citizens, and shall l)e treated as such.' This, however,
does not say that persons not falling within this class who are
domiciled in the United States shall not ()l)tain from (lermany those
rights to which such persons are entitled by international law."
Mr. Bayard. Sec. of State, to Mr. Liebermann, July 9, 188G, IGO MS. Dom.
Let. G<57.
" The general view held by this Department is that a naturalized
American citizen by abandonment of his allegiance and residence in
this country and a return to the coiuitry of his birth, animo inanendi,
ceases to be a citizen of tlie United States; and that the minor son of
a party described as aforesaid, who was born in the United States
during the citizenship there of his father, partakes during his legal
infancy of his father's domicil, but upon becoming ,sui juris has the
right to elect his American citizenship, which will be best evidenced
by an early return to this country."
Mr. Bayard. Sec. of State, to Mr. de Weckherlin. April 7, 1888, For. Uel.
1888. II. 1341.
A person who stated that he was a German by birth, that he
served in the United States Navy during the Civil War, and that he
had been a citizen of the United States since 187(), but that he in-
tended to visit Prussia " to stay for several years and perhaps per-
manently," inquired (in 189G) as to what would under these cir-
cumstances be the status of himself and his four minor sons, the
eldest of whom was nineteen years of age and the youngest four.
The Department of State, referring to Art. IV. of the treaty with the
North German Union of Feb. 22, 1868, by which the renewal of
residence in the country of origin, without nn intent to return to the
country of adoption, operates as a renunciation of naturalization,
replied that, in case of such renewal of residence, the children, though
they were l)orn in the ITnited States, "'■ would be required to elect
citizenship on attaining their majority, provided they were still within
(lerman jurisdiction," and that, if they decided to retain their Ameri-
can citizenship, " the best evidence of this fact would be their return
to the United States to remain and discharge their obligations and
duties as such."
Mr. Olney. Sec. of State, to Mr. Materne, May 20, 189G, 210 MS. Dom.
Let. 406.
§ 430.] DOUBLE ALLEGIANCE. ^ 543
3. Election at Majority.
§ 430.
" It is quite clear that the two young -Boisseliers, being native horn
citizens of the United States, and- now subject to the jurisdiction of
the United States, can not be held under any law, municipal or
public, to owe military service to the German Government. Their
rights rest on the organic law of the United States. The Constitu-
tion declares (Article XIV. of the xVmendments) ' That all persons
born or naturalized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and of the State
wherein they reside.' This is the supreme law of the Republic, avail-
able alike to all its citizens, whether native or naturalized, and binding
upon every Department and officer of this Government. The brothei's
Richard and Caspar Boisselier, in their present political status, fulfil
all its conditions. Their father, it is true, took them to Schleswig
when they Avere quite young, the one four and the other two years
old. They lived there many years, but during all those years they
were minors, and during their minority they returned to the Ignited
States; and now, when both have attained their majority, they declare
for their native allegiance and sul)mit themselves to the jurisdiction
of the country where they were born and of which they are native
citizens. Under these circumstances, this (jovernment cannot recog-
nize any claim to their allegiance, or their liability to military service,
put forth on the part of Germany, whatever may be the uninicipal
law of Germany under which such claim may be asserted by that
Government.
" It follows from this view that any property which they now
possess in the (ierman dominions, and any {property wliicli tliey may
hereafter acquire in that country, either by piu-chnse. inheritance, or
testanjentary succession, must be held to l)e free from liability on
grounds arising from their refusal to submit themselves to that (tov-
ernment for the performance of mibtary service. AVhether or not
the father, Carl (ierhard Boisselier. may by his continued residence
in Schleswig have resumed his original nationality and renounced
his American citizenship is a question which I do not now undei-take
to determine nor is its determination deemed essential to the present
(juestion."
Mr. Evarts. Sec. of State, to Mr. Wliit«>. iiiin. to (Jcnn.-uiy, .Tuiio (">. ISTO.
MS. Inst. Goniiany. XVL 4(;r>.
The father. ('. (J. Boissolior. was iiaturalizod in th(> I'nitod States in 1S4S.
He returned to Sehh>swig in 1S.")(;. after haviu); lived in the I'nited
States IJ) years. His two sons were horn in St. Louis. Mo., in 1S."»2
and 18.")4, respectively. Thoujih tlieir father took them with hiiu to
Schleswig, they returned to America durinj; their minority. Sub-
544 NATIONALITY. [§430.
•
seciuently they ivcoIvchI notices from the Schleswig authorities to
report for military service. 'I'liese notices were served iuhjh theui
by (Jerniaii agents in the United States, while their father was
threatened witli iHinalties in case they failed to appear, such jienal-
ties to be enforced against any property which he might giv<' or
devise to his sons; and it was stated that, finally, he was notified that
unless they ai)iK>arwl in court ou July 2, 1879, they would be prosecuted
under ssec. 140 of the penal code, and that all such property as their
fiither might bequcnith to tliem would be confiscated to tin? state.
Mr. White was instructed to express to the Imperial (iovernment
the earnest desire of the I'resident that any proceetlings pending or
contemplated against the property of the sons, baswl on their refusal
to submit to the demand for military service, be at once put an
end to.
For further proceedings in this case, see Mr. Evarts, Sec. of State, to Mr.
Wliite, min. to Germany, .luly 28, 1880, MS. Inst, (iermany, XVI. 502.
See, also, as to the same principle, in the case of Ferdinand Revermann,
Mr. Frelinghuysen to Mr. Kasson, Feb. 7, 1885, MS. Inst. Germany,
XVII. 408. See supra, p. 530.
P. was born in New York in 1854. His father was a native of Den-
mark, but was said to have been naturalized in the United States; his
mother was of American nativity. At the age of four years he was
taken abroad by his parents, with whom he lived, at times in pjugland
and at times in Denmark. On attaining his majority, being then in
Denmark, the authorities called upon him for military service. He
asserted his American citizenship. The authorities recognized it,
but commanded him as an alien to leave the country. He repaired to
England; but, after some years' stay there, returned to Denmark,
where, at the instigation of his father, he Avas put into a lunatic
asylum. From the asjdum he was soon discharged; but when he
again sought to go to England, with a view, it was alleged, to proceed
to the United States, the Danish authorities, at the instigation of his
father, j^rohibited him for the time being from leaving the country.
He then invoked the interference of the American legation. On these
facts Mr. Evarts, while holding that P. was a citizen of the United
States by birth, said : " He lost no time, when he attained the age of
majority, in declaring that he claimed the United States as his
country, and that he considered himself a citizen of the United States.
He appears to have adhered to this choice ever since, and now declares
it to be his intention to return to this country and reside here per-
manently. His father's political status (whether a citizen of the
United States or a Danish subject) has no legal or otherwise material
effect on the younger P 's rights of citizenship. Under these
facts and conditions it will be proper for you to bring the claim to the
attention of the Danish Government, with a view to the removal of
any obstacles to his departure that may now exist at the instance
§430.] DOUBLE .ALLEGIANCE. 545
of the local authorities. It is not doubted but that a simple statement
of the facts will be sufficient to accomplish that result."
Mr. Evarts, Sec. of State, to Mr. Cramer, No. 337, Nov. 12, 1880, lii MS.
Inst. Denmark, 22G.
" We now reach a point less easy of decision, and that is, assuming
that the father resumed German citizenship during the son's minority,
what are the son's rights as against this Government upon reaching
the age of twenty-one years, for there is no doubt that during
minority his rights, if he had any other than tliose possessed by his
father, were at least suspended and subject to the father's allegiance.
"The statute of the United States (Revised Statutes, section 1993)
declares that all children born Avithout the United States whose
fathers ' were or may be at the time of their birth citizens thereof,'
are themselves citizens of the United States, but that right ' shall not
descend to children whose fathers never resided in the United States.'
" Therefore, if Mr. Karl Klingenmeyer's father was at the time of
his son's birth a citizen of this country, the son was such a citizen,
while possibly by the German law (which I have not at hand) he
might also be a citizen of the place of his birth. On general princi-
ples such conflicting citizenship is decided according to the laws of
the one of the two countries claiming allegiance within whose juris-
diction the individual happens to be. (13 Op. At. -Gen. 89.)"
Mr. Frelinglmysen, Sec. of State, to Mr. Kasson, min. to (Jerniany, Jan.
15, 1885, For. Rel. 1885, 39(*, 397.
" AVhile the law is indisputable that the child of an American
father, born abroad, takes his father's nationality when an infant. I
apprehend that the rule also is settled that when he arrives at full
age he may elect or surrender such nationality and accept that of the
country of his birth and residence. The j^reponderance of authority
is that when such election is made it is final.''
Opinion of Dr. Francis Wharton, law oflicer of the Doitartnicnt of State,
April 29, 188.5, connnunicated hy Mr. Bayard, Sec. of State, to .Mr.
Smithers, charge at Peking, May 4, 1885, For. Rel. 1S85, 171. 172.
In cases of double allegiance, the child, when he beconu's of age. " is
required to elect between the country of his residence and the count rv
of his alleged technical allegiance. Of this election two incidents are
to be observed; when once made it is final, and it requires no formal
act, but may be inferred from the conduct of the party from whom
the election is required . . . If he | Koberi Emden. born in Switz-
erland in 18()2, and now -23 years ohl. his father In-ing a person of
Swiss origin, who had been natin-alized in (he Tnited States] sol-
emnly elected, on arriving al full age, to be a citizen of the United
H, Doc. 551— vol 3— —35
546 NATIONALITY. [§ 430.
States, the proofs of such election must be produced. If, on the
other hand, he made no such -election, but by remaining in Switzer-
land is to be inferred to have accepted Swiss nationality, he can not
now obtain a passport as a citi/.en of the I'^nited States, If this he
the case, his proper course, should he desire to Ix^come a citizen of the
United States, is to come here in person aad become naturalized."
Mr. Porter, Act. Sec. of State, to Mr. Winchester, inin. to Switzerland,
Sept. 14, 1885. For. Rel. 188r), 811.
The Department of State, in referring to the age of majority where per-
sons are chiiming American citizenship, means the usual age of ma-
jority in the United States — that is to say, twenty-one years. (Mr.
Frelinghuysen, Sec. of State, to Mr. Cramer, min. to Switzerland, Feh.
13, 1885, For. Rel. 1885, 795, 790.)
It was held that Moritz Philipp Emden. father of Robert Emden, was not
entitled to a passport as a citizen of the United States, it appearing
that he i-eturned to Switzerland in 1854, the year of his naturaliza-
tion, and had continued to reside there, and that he gave indefinite
and- ambiguous answers to the question as to his intention to resume
his residence in the United States. (Mr. Bayard, Sec. of State, to
Mr. Winchester, min. to Switzerland, May 7, 1887, For. Rel. 1887,
1065. )
With regard to the case of Victor Labroue, who was born in France
of an American father, and who was still living in that country, the
Department of State said: "This election [of allegiance] can not be
made by Victor Labroue until he arrives at full age in September,
1886, and the election, to be operative, must not only be formally and
solemnly declared, but must be followed by his coming to and taking
up his abode as soon as is practicable in the United States. Should he
remain voluntarily in France after the period w^hen the French law, as
well as the law of nations, requires him to make his election, this may
properly be regarded as an abandonment of American and an accept-
ance of French allegiance."
Mr. Bayard, Sec. of State, to Mr. Vignaud, charge at Paris, July 2,
1886, For. Rel. 1886, 303, 304.
" Friedrich de Bourry, according to the allegations in his memorial,
was born in the city of New York on December 4, 186*2, of Austrian
parents, then temporarily resident in that city, and there remained
with them until he was five years of age, when he accompanied his
mother to Europe. In 1869 he and his mother, residing in ^'ienna,
were joined in that city by his father, who died in 1880. Under the
Austrian Government Friedrich de Bourry, the memorialist, has re-
mained until this day, employed in the Austrian raihvay service. It
is not claimed that his father was ever naturalized, or made the
requisite declaration of his intention to become a citizen of the United
States, or in any way signified his intention formally to abjure his
§ 430.] DOUBLE ALLEGIANCE. 547
Austrian allegiance. Nor is it pretended that when, on December 5,
1883, the present memorialist arrived at full age, he took any steps to
make or record his election of citizenship in the United States. For
several years before that date he was old enough, with his mother's
permission, which it is plain from her affidavit she was ready to give,
to come to the country of his birth if it had been the country of his
intended citizenship. He alleges no effort of this kind, nor any act
or event indicating his election of United States citizenshij) when he
arrived at full age.
" Under these circumstances it is not necessary for me to consider
the question whether Friedrich cle Bourry was, at the time of his
birth, a citizen of the United States under the naturalization statutes
and the fourteenth amendment of the Constitution of the United
States. It is enough to say that he has exhibited no such proof of an
election, on arriving at full age, of United States citizenship as now
entitles him to a passport. An election in a case of duiil or doubtful
allegiance, which is the utmost which can be claimed in the present
case, must be made on attaining majority, or shortly afterwards, and
must be signified by acts plainly expressive of intention, such as
immediate preparations to return to the elected country.
'' In the present case there is no evidence that an election to Ijecome
■a citizen of the United States was ever made or intended, but on the
contrary all the facts create the presumption that an Austrian domi-
cil was chosen."
Mr. Bayai'd. Sec. of State, to Mr. Lee, charge at ^'ienna, .July 24. 188(5,
For. Kel. 1880, 12.
See, also, the case of C. L. George. For. Kel. 188."). 42u ; For. liel. 1887.
402-404 ; and supra, § 392.
In 1887, Emil Stucker, who was then residing at Odessa, in Russia,
applied to the American legation for a passport. He was boi-n in
England, May 12, 18()3. His father, the place of whose nativity
does not appear, had been naturalized in the United States, but soon
after his naturalization he returned to Europe Avhere he ever after-
wards resided, dying in Paris in April. 1887. It api)eared that Emil
Stucker, who had never been in the United States, and expressed no
purpose to go there to reside, had for some years Ikhmi in business in
Europe, and that on one occasion, when he was living in Bremen,
being suddenly called to Russia on business, he obtained "' British
protection." He had never taken any oath of allegiance to (Ji-eat
Britain. On the facts, the legation decided that he couhl not l>e
considered an American citizen. This decision was njjproved. tlie
Department of State saying: ''The fact that Stuckei-'s I'athei- had
resided over twenty years abi'oad after his naturalization, and died
there last April without having returned to the United States, and
548 NATIONALITY. [§430.
the further circumstance that the son has always resided and even
been in business in Europe, without any apparent intention of ever
residing in the United States, are quite sufficient ground for question-
ing the son's bona -fides as an American citizen and for refusing to
acknowledge him as such by issuing him a passport, the more espe-
cially as he admits having obtamed British protection temporarily
in Bremen,"
Mr. Lothrop. iiiin. to Uussia. to Mr. liayard, Sec. of State, June O, 1887 ;
Mr. Porter, Act. Sec. of State, to Mr. Lothrop, June ;J0, 1887, For.
Rel. 1887, 905, tW37.
"As to . . . persons born in the United States of French par-
ents, the rule is that while such persons remain in the United States
they are citizens of the United States; but that should they go to
France, and there, Avhen they arrive at the age of twenty-one, elect
to be French citizens, they lose all claim to the protection of the
United States.
•^ It has further been repeatedly held by us, as j^ou are aware, that
when a person thus born in the United States arrives at twenty-one
in a foreign country, the mode of expressing his election to be a
citizen of the United States is by promptly returning to the United
States. The same distinction is applied to children born abroad to
the citizens of the United States. There is, in both these cases, what
is called double allegiance ; and by the law of nations the nationality
of such persons is to be determined by their own election of nation-
ality at their majority, which election is evidenced by placing them-
selves in the country they elect. Should such persons after electing
the United States, and here taking up their domicil, go to France
for a transient visit, it will be your duty to protect them as citizens
of the United States."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Feb. 15, 1888,
For. Rel. 1888, 1. 510, 511.
"A child born abroad of American parents, or in the United States
of foreign parents, although subject to the parental domicil during
minority, has, on becoming f<ui juris, the right of election of citizen-
ship; and, in the event of choosing American nationality, the best
proof of such election is to be furnished by continued residence in the
United States, or by return hither, if abroad, and the discharge of
the duties and obligations of the elected citizenship."
Mr Bayard, Sec. of State, to Count Sponneck, Danish min., April 10,
1888, For. Kel. 1888. I. 489.
To the same effect — that the child, while a minor, partakes of the father's
"nationality and domicil." with a right "when he becomes of full
age to elect his nationality " — see Mr. Bayard, Sec. of State, to Mr.
McClernan, Oct. 29, 1885, 157 MS. Dom. Let 482.
§430.] DOUBLE ALLEGIANCE. .549
See, also. Mr. Bayard, Sec. of State, to Mr. Stallo, No. 48, Feb. 17, 1887.
MS. Inst. Italy,. II. 344.
A's father came to the United States in 1849, and in 1854 wa.s nat-
uralized. He then left the United States, and afterwards remained
abroad, dwelling after 1878 in Germany, where, about 1888, he died.
A was born in London in 18()4; and in 188i). when nearly twenty-five
years old, his father being dead, applied to the American legation in
Berlin for a passport. He had never been in America, and the only
statement he made with regard to his intentions was that he expected
to go to the United States " w- ithin the next five years." It was con-
ceded that A., having been born abroad to an American father (as-
suming that the latter had not at the time renounced his American
naturalization), was, imder the laws of the United States, an Ameri-
can citizen, with a right on attaining his majority to elect American
nationality ; that such election might have been manifested " by his
coming to the United States and assuming the duties and responsi-
bilities of American citizenship;'" that, as there was no allegation
that he was prevented from so doing, it was to be inferred that his
subsequent claim of such citizenship was " founded solely upon con-
siderations of personal convenience;" and that the De])artment of
State '" would fail in its duty to the people of the Ignited States if it
permitted the high privileges of American citizenship to be so used."
Mr. Blaine. Sec. of State, to Messrs. Shellabarger & Wilson. May 21, ISS!),
173 MS. Dom. Let. 152.
A. F. was born in Louisiana in 1803 of a native German father,
wdio was naturalized as a citizen of the United States in IS;")!). The
father died in 1867, and in the following year A. F. went with his
mother to- Hamburg, Avhere he had since continuously resided. In
1891 A. ¥. got a passport from the legation of the United States,
alleging that he intended to return to the United States within two
years. Her applied in 1893 for its renewal. Held, that he had elected
German citizenship and was not entitled to a passj)ort.
Mr. Gresham, See. of State, to Mr. Lainfield. June 2. 181)4, 1!)7 MS. I>oui.
Let. 231.
It is to be observed that in this case the fatlier's naturalization, as well
as the son's bii-th, took jdace before the conclusion of the naturaliza-
tion ti'eaties with the North (Jernian States.
Edward Kovacsy was born in the city of Xew York in 1874. His
father was a native of Hungary, who emigrated to the United States
in 1871 and was naturalized in 1870, two years after Edward's birth.
In 1878 the father returned with his family to his native home, where
they afterwards continuously resided. The father claimed to have
preserved his American citizenship, but he was engaged in business
550 NATIONALITY. [§ 430.
ill Hunjrarv, had reared and educated his son' there, and declared that
he never had had any intention to return to the United States, uidess
for a visit, since he left it in 1878. In 18i)r) Edward, Ix^in^ then 21
years of a^e, was summoned to appear for examination as a soldier
in the Hungarian army, The father api)eale(l to the United States
legation for its intervention, on the gro\md that his son was an Amer-
ican citizen. The son declared that he did not intend to go to
America to reside, but expected to remain in Hungary during his
natural life. The minister of the United States at Vienna refused
to issue him a passport or otherwise to intervene in his behalf, unless
he would elect to go to America and in good faith take upon himself
the duties of citizenship there. This condition having Ijeen declined,
the minister refused to interfere, saying that he would accept nothing
less " than an actual renouncement of the domicil so long maintained
in Hungary and a return to the United States in good faith to make it
his permanent home." His action was approved.
Mr. Tripp, iiiin. at Vienna, to Mr. Olney, Sec. of State, June 30. isa'i ; Mr.
Adee, Act. Sec. of State, to Mr. Tripp, July 23, 1895 ; For. Rel. 1895,
I. 20-22.
"As you allege that your father, a naturalized citizen of the United
States, ' settled ' in Cuba in 1820, where he married, reared his family
and apparently resided until his death, there may be some question
whether at the time of the birth of his children he had not abandoned
his American citizenship. Admitting, however, that your father was
a citizen of the United States at the date of your birth, you and your
brothers, in order to conserve your American citizenship, should, on
reaching your majority, have come to the United States to reside.
You are no longer ' children.' Your citizenship is no longer deriva-
tive, but a matter of personal election. You did not come to the
United States on attaining your majority, nor do you now express
any intention of ever coming to this country to reside. You are
therefore, in the Department's opinion, clearly not entitled to claim
the protection of this Government."
Mr. Olney. Sec. of State, to Mr. Ory. Dec. 27. 189.^. 20(5 MS. Doni. Let.
001). See. to the same effect. Mr. Olney, See. of State, to Mr.
Desvignes, April 2. 189<>, 209 MS. Doni. Let. 139.
As a rule, the question of election assumes a practical form, in con-
sequence of a claim made to the individual's allegiance by the country
in which he actually resides. In 1896, however, the question of re-
nunciation was mooted, in a case where, the two original allegiances
being American and German, the German Government held that the
individual, who was then residing in Alsace, had, by reason of pre-
vious residence as a minor with his father for twelve years in France,
§430.] DOUBLE ALLEGIANCE. 551
lost his German citizenship, and might be expelled as an alien. It
j^ieems that he had attained his majority two and a half years before
the question of expulsion was raised, and that he had spent the inter-
val chiefly or wholly in Alsace. The question, therefore, to be deter-
mined was whether his " domicil abroad for some two and a half
years after attaining majority operates as a positive abandonment of
his American status." This question was reserved, to be determined
upon the duly ascertained circumstances of the case, if it should be
presented in such a way as to require a decision, e. g., by an applica-
tion for a passport.
Mr. Olney, See. of State, to Mr. Ulil. amb. to Germany. Nov. 20. 1890, MS.
In.st. Germany. XIX. 684. See also. Mr. Olney. See. of State, to Mr.
von Reiehenau. No. 247, Nov. 20, 1890, MS. Notes to German Leg.
XI. 683.
Mr. Olney observed that in most of the eases that had arisen the law of
the foreign eountry had reqnired an eleetion to be made " within one
year after attaining majority, as is the rule in Franee." In other
eases, where there was no local law or regulation on the subject, a
relinquishment of the right to protection as an American citizen,
while continuing to reside abroad, had been inferred from circum-
stances, the party having had an opportunity to disi)ute the adverse
presumption and establish good faith.
W., sr., was born in Alsace in 1831, emigrated to the United States
in 1847, and in due time was naturalized. In the latter part of the
" sixties " he returned to Alsace and settled there permanently.
There, in 1875, was born W., jr., whom the Oerman authorities in
1899, on his asserting American citizenship, threatened to expel as
an alien. He had never been in the United States. It was held
that, even conceding that his father at the time of his birth still
remained an American citizen, AV.. jr., "" did not evidence an election
of American nationality by coming to the United States when he
arrived at the age of 21, three years ago, nor does he now evince any
intention of coming to the United States to reside,'" and that he there-
fore was "not entitled to the intervention of this (Government in his
behalf."
Mr. Hay. Sec. of State, to Mr. Wliite. ami*, to (Jermany, No. 9r>9. Nov. 4.
1899, MS. Inst. (Jcruiany. XXI. 104.
David Marks, 2(> years of age and a native of (Juateniala, where he
still lived, although the son of a naturalized citizen of the United
States, was held not to be entitled to a passport, "because he has. by
his permanent residence i« (Guatemala, the land of his birth, where
he intends to remain, inferentially elected other nationality than that
of the United States."
Mr. Adee, Acting Sec of State, to Mr. (Vmibs. No. 71. Sept. 1.'.. 1!X):{. For.
Rel. 19():{, .v.);").
552 NATIONALITY. [§431.
XII. Ql E.STIOX or HXI'ATUIATION.
1. Common-Law I^octkine.
§ 431.
The Declaration of Independence enumerates as among the " un-
alienabh' rights " with which " all men '' are " endowed by their
Creator," " life, liberty, and the pursuit of happiness." Whether
these comprehended, incidentally, the right of the individual to re-
nounce his allegiance at will, is a question on which opinions differed.
The courts of the United States, prior to 1868, often implicitly
accepted the common-law doctrine that a citizen can not at will
renounce his allegiance.
2 Kent's Couini. 49 ; 3 Story's Constitution, 3, note 2 ; Whart. State Trials,
654; Whart. Confl. of Laws, §5; Lawrence's Wheaton (1863). 918;
Inglis r. Trustees of the Sailor's Snug Harbor. 3 Pet. 99; Shanks v.
Dupont, 3 Pet. 242, 246; The Santissiuia Trinidad, 7 Wheat. 283; Por-
tier r. Le Roy, 1 Yeates (Penn. ) 371. Contra, Alsberry r. Hawkins. 9
Dana (Ky. ). 178. The utterances of the Executive Department, down
to 1868, were by no means consistent. But bj- Mr, Buchanan, as Sec-
retary of State, the right of voluntarj- expatriation was broadly
asserted ; and, during his Presidency, it was reannounced in the form
in which it has since been affirmed, especially by the act of WGS.a
See Moore's American Diplomacy, chap, vli., on the Doctrine of Expa-
triation.
The idea of expatriation comprehends not merely the loss, but the
change, of home and allegiance ; it includes not only emigration, but
naturalization.
Black, At. Gen., 1859, 9 Op. 356. —
A citizen of the United States, whether native or naturalized, who
expatriates himself and becomes a citizen of another country, can
reacquire American citizenship only by complying with the law^s
relating to the naturalization of aliens.
Williams, At. Gen., 1873, 14 Op. 295; Mr. Fish, Sec. of State, to Mr.
Carpenter, Feb. 5, 1873, 97 MS. Doni. Let. 407 ; Mr. Fish, Sec. of State,
to Mr. Whiting, Feb. 6, 1873, 97 .MS. Dom. Let. 427 ; Mr. Rives, Assist.
Sec. of State, to Mr. Richards, May 23, 1888. 1C>8 MS. Dom. Let. 441 ;
Mr. Wharton, Act. Sec of State, to Mr. Hirsch, min. to Turkey. Jtily
10, 1891, For. Rel. 1891. 752; Mr. Olney, Sec. of State, to Mr. Welt-
ner, Nov. 19, 1896, 214 MS. Dom. Let. 80; Mr. Hill, Assist. Sec. of
State, to Mr. Navarro. Jan. 20, 1899, 2:M MS. Dom. Let. 172.
" No British subject can, by such a form of renunciation as that
which is prescribed in the American law of naturalization, divest
a Infra, § 435.
§431.] EXPATRIATION. 553
himself of his allegiance to his sovereign. Such a declaration of
renunciation made by any of the King's subjects would, instead of
operating as a protection to them, be considered an act highly crim-
inal on their part."
Lord Gx'enville to Mr. King, Am. min., Maivh 27. 1707. Am. State Papers,
For. Rel. II. 148, 149.
The doctrine of perpetual allegiance was not applied by the British
courts to persons born in the United States before, and remaining
here after, the acknowledgment of their independence. (Doe r.
Acklam, 2 B. & C. 779.) See supra. § 376.
" To the Lords of His Majesty's most Hon'ble Privy Council. May
it please Your Lordships,
" In obedience to your Lordships' order of the IGth inst.. referring
to us the petition of John Montgomery, the representative of Simon
Cook, and papers accompanying the same to your Lordships' order
annexed, and requiring us to consider thereof, and report wliether
Alexander Smith, therein named, is to be considered according to
the construction of His Majesty's order in council of 31st May, 1797,
for regulating the trade between Great Britain and the Territories
belonging to the United States of America, as a subject of the United
States of America, and whether he is entitled to be master of a
ship belonging to the said United States trading to this country
and to confer on said ship the benefit of said order in council ; We
have considered the papers so referred to us and we are of opin-
ion that Alexander Smith, being a natural born subject of His
Majesty and not having been admitted a citizen of the United
States of America until 6th May, 1796, cannot be considered with
respect to this country as a citizen of the United States so as to entitle
liim to be a master of a ship belonging to the said United States trad-
ing to this country or to confer on such ship the benefit of said order
of council. We apprehend this point Avas submitted to opinion of
Sir Philip Yorke in 1732 in the case of a Scotchman who had been a
Burgher of Stockholm and was master of a Swedish ship navigated
with Swedish mariners; and that he thought this would not entitle
(he Scotchman to be considered as a Swede in (Jreat Britain, liis
native country. All which we humbly submit to your Lordships'
consideration.
" 19th June 1797.
(Signed) " Wm. Scott.
** Jno. Scott.
" Jno. Mrn-oHP."
MSS. Dept. of State.
554 NATIONALITY. [§ 432.
2. Judicial Decisions.
(1) PRIOR TO \ms.
§432.
A brought, an action against B in Pennsylvania. B objected to the
jurisdiction of the court on the ground of Article XIT. of the consular
convention between the United States and France, under Avhich all
differences and suits between citizens of France in the United States
or citizens of the United States in France were to be determined by
consular officers. It appeared that A was a native of France, and re-
sided in San Domingo at the period of the French Revolution. After
the introduction of the republican system in France he came to
America and took an oath of allegiance to the State of Pennsylvania
under the act of March, 1789 (2 Dall. 676), and purchased a tract
of land, on which he resided. That act was, however, at the time
obsolete, and he Avas never naturalized under the act of Congress;
but he was frequently heard to express his abhorrence of the con-
dition of things in France, and he declared an intention to settle per-
manently in America. The supreme court of Pennsylvania held
that he w as not a citizen of France. It was true, said the court, that
it did not appear that he had acquired rights of citizenship in the
United States or in any other country; but he had an undoubted
right to dissent from the revolution and to refuse allegiance to the
new government and withdraw from the territory of France. Every-
thing that could be said or done to manifest such a determination
had been said and done by A, except the act of becoming a citizen or
subject of another country. No argument seems to have been made
on the law of -France; but the court seems to have proceeded on the
ground that the plaintiff was not, as the idea was expressed by coun-
sel, " a citizen of the French Republic."
Caisnet r. I'ettit. supremo court of Pa. (1795). 2 Dallas, 2,S4.
Edward Ballard, a native of Virginia, and a citizen and inhab-
itant of the United States, captured, while in command of VAmi
de la Libert(\ an American-built vessel, owned by citizens of the
United States, and unlawfully armed and equipped in the United
States, but cruising under the pretended authority of France, a vessel
and cargo belonging to citizens of the Netherlands. A question,
being raised as to Ballard's citizenship, it appeared that in April,
1794, he renounced, in the court of Isle of Wight county, his alle-
giance to Virginia and to the United States, under a Virginia statute
of Decenil)er 23, 1792. which provided that whoever should, in a
prescril)ed form, declare that he relinciuished the character of a citi-
zen and should '' depart out of " the commonwealth, should " from
§432.] EXPATRIATION. 555
the time of his departure " be '• considered as having exercised his
right of expatriation," and thenceforth '' be deemed no citizen." He
subsequently went on a cruise in the vessel in question, under a com-
mission eminating from the French admiral, but did not become nat-
uralized in any other country.
After his capture of the Dutch vessel, Ballard was assisted to bring
her in by one Captain Talbot, of UAmi de la Pomt-a-Petre. A
question was raised as to Talbot's citizenship. A native of Virginia,
he went late in 1793 to Point-a-Petre, island of (Juadaloupe, where he
took an oath of allegiance to the French Republic, and was natural-
ized by the municipality as a French citizen. He then sailed on a
cruise in UAmi de la Point-a-Petre. This vessel was American built,
and was formerly called the Fairplay,, under which name Talbot
made his voyage in it to Guadaloupe. It then belonged to two
American citizens, named Sinclair and Wilson, under a power of
attorney from whom Talbot, after his arrival at Guadaloupe, sold
the vessel to one Redick, a native citizen of the United States, who
had just been naturalized at Point-a-Petre, on the same day as
Talbot, as a citizen of the French' Republic. They were naturalized
three days before the sale. The sale having been made, the governor
of Guadaloupe authorized Redick to send out the vessel as UA/nl de
la Point-a-Petre, under Talbot's command.
As to Ballard's citizenship, Mr. Justice Paterson declared that he
was a citizen of the United States; for, though he had "renounced
his allegiance to Virginia, or declared an intention of expatriation,
. . . yet he had not emigrated to, and become a subject or citizen
of, any foreign kingdom or republic. He was domiciliated within
the United States, from whence he had not removed and joined him-
self to any other country, settling there his fortune and family. Froui
Virginia Iwi. passed into South Carolina, where he sailed on board the
armed vessel called the ^1//// de la Lihertc. He sailed from and re-
turned to the United States without so nnich as touching at any
foreign port during his absence. In short it was a temporai'v absence,
and not an entire departure from the United States; an absence with
intention to return. . . . Ballanl was, and still is, a citizen of the
United States; unless, perchance, lie should be a citizen of the world.
The latter is a creature of the imagination, and far too refined for
any republic of ancient or modei-n times. . . . But what is conchisive
on this head is that Halhird sailed from this country with an inicjui-
tous ])uri)ose, emn dole vt culpa, in the cajjacity of a cruiser against
friendly j)owers. . . . An act of illegality can never be construed
into an act of emigration or expatriation. . . . The act of the leg-
islature of Virginia does not ai)ply. Ballard was a citizen of \'irgini:i.
and also of the United States. . . . .Vllegiance to a particular
State is one thing; allegiance to the United States is anotl.ei-. Will it
556 NATIONALITY. [§ 432.
he said that tlie icnunoiation of allcfrianco to tho fonnor implies or
draws after it a renunciation of allegiance to the latter? The sov-
ereignties are different; the allegiance is different; the right, too, may
l)e different."
Mr. Justice Paterson expressed no opinion on the question whether
Talbot and Redick were citizens of France, it appearing that in the
capture in question Talbot, with his vessel, played the part of an
accomplice or conspirator with Ballard, who was a citizen of the
United States and not of France.
The question of Talbot's citizenship was discussed by Mr. Justice
Iredell. " This involves," said Mr. Justice Iredell, " the great ques-
tion as to the right of expatriation." He concurred in the view that
a man " should not be confined against his will to a particular spot
because he happened to draw his first breath upon it." But there
was a difference of opinion " as to the proper manner of executing
this right." Some held it to be " a natural, unalienable right in each
individual,'" not subject to legislative restraint, but exercisable by
every man at his " will and pleasure." From this opinion he must
presume to differ. Expatriation was not " a natural right, in which
the individual is to be considered as alone concerned." Every man
had, as a member of society, duties as well as rights. If he had l)een
in the exercise of a public trust, for wiiich he had not fully accounted,
he ought not to leave the society until he had done so. It was some-
times said that a man should not expatriate himself in time of war, so
as to do a prejudice to his country. How could this be so, if expatri-
ation was " a natural, unalienable right, upon the footing of mere
private will ? " The very statement of an exception in time of war
plainly meant that it was not an absolute right, but " a reasonable
and moral right which every man ought to be allowed to exercise,
with no other limitation than such as the public safety or interest
requires, to which all private rights ought and must forever give
way." But, who is to regulate the matter? "The legislature
surely." And if it may exercise the power in time of Avar because the
public safety may require it, it may do so in other instances on the
same ground. The supposition that the power might be abused was
of no importance, any more than the supposition that the taxing
power might be abused. The assembly of Virginia had shown judi-
cious foresight in attempting to regulate the matter. If the Virginia
statute was still in force — a question he would not unnecessarily de-
cide— he had no doubt that a citizen of that State could not expatriate
himself in any other manner. It was probable from the record, but not
certain, that Talbot was still a citizen of Virginia. But, however this
might be, he was "undoubtedly ... a citizen of the United
States." In the absence of any law prescribing the method of expa-
triating himself as such, there must be some evidence that he had actu-
§432.] EXPATRIATION. 557
ally done it. His going to the AVest Indies and being admitted a citizen
there, did not in itself constitute expatriation or discharge him from
his obligations to his own country. If the laws of the United States
had imposed restrictions on his leaving the country, no act of a for-
eign country could operate to repeal them. The act was complete,
if he had legally quitted his own country ; if not, it was subordinate
to his original allegiance. The rights of citizenship bestowed by
the United States on Lafayette, or by France on certain illustrious
characters in the United States, did not aljsolve them from their
original allegiance. Talbofs going to the West Indies and taking
an oath of allegiance there was in itself an equivocal act. It might
have been done with or without a view to relincj^uish his own country
forever. " If the former, and this was clearly proved, it possibly
might have the eifect contended for. If the latter, it would show
that he voluntarily submitted to the embarrassments of two distinct
allegiances." By the treaty between the United States and Holland
a citizen of either country cruising under a foreign privateer com-
mission against the citizens of the other was to be deemed a pirate.
If he left America and became a French citizen in order to have
a color for so cruising, his acceptance of a French commission
would in itself involve the perpetration of a crime. If he went to
the West Indies intending to reside there for a time, and to act under
a conmiission, believing that this would justify him. such a course,
though it might excuse him from the guilt of piracy, would not
make his contract lawful, '' because, in this case, even his intention
was not to expatriate himself forerer; and, consequently, he still
remained an Amei'ican citizen^ and had no authority to take a com-
mission at all. It surely is impossible for us to say he meant a
real expatriation, when his conduct prima facie as nuich indicates
a crime as anything else." The evidence therefore did not show that
Talbot had ceased to be an American citizen, so as to be absolved from
the duties he owed to his country, and among others that " of not
cruising against the Dutch, in violation of the* law of nations gen-
erally, and of the treaty with Holland in particular."
On the same grounds Judge Iredell considered Kedick still a citizen
of the United States, there being nothing to show his expatriation "but
a residence of no hmg duration, in a French island, his taking an oath
to the French Kepublic. and being admitted a French citizen."
As to Ballard, Mr. Justice Iredell said: "Admitting him to have
been expatriated (which, if the Virginia law was in force. I think he
was), he did not become a French citizen at all. Only one of the crew
was a Frenchman, I think all the rest were ])rov(Ml to be Americans
or English. She was Htted out in the United Stat<'s. The connnission.
if good at all, was of a temporary and secret nature, and mh'Ius to have
been confined to a special purpose, to be executed within the United
558 NATIONALITY. [§ 432.
States. She cortaiiily had no authority to cruise, that l)eing specified
in evei'V connnission of that nature. Whoever were her owners, she
does not appear to have been French property. On the contrary, there
is the highest possibility that Talbot's and Ballard's vessels had the
same owners. So conscious was he of the illegality of his conduct,
that he even preferred no claim for the captured property."
Mr. Justice Cushing said :
'' Even supi)Osing that Talbot was, hona fde, a French citizen, the
other circumstances of the case are sufficient to render the capture
void. It was, in truth, a capture by Ballard, who had no authority,
or color of authority, for his conduct. He was an American citizen;
he had never left the United States.; his vessel was ow-ned by Ameri-
can citizens ; and the commission, which he held by assignment, was
granted by a French admiral, within the United States, to another
person, for a particular purpose, but not for the purpose of capture.
. . . On the important right of expatriation, I do not think it neces-
sary to give an opinion ; but the doctrine mentioned by Heineccius
seems to furnish a reasonable and satisfactx)ry rule. The act of expa-
triation should be hona fde^ and manifested, at least, by the emi-
grant's removal, with his family and effects, into another country.
This, however, forms no part of the ground on which I think the
decree of the circuit court ought to be affirmed."
Rutledge, Chief Justice, said that it was not necessary to give an
opinion upon the " doctrine of expatriation," there " being no proof
that Captain Talbot's admission as a citizen of the French Republic
w^as with a view to relinquish his native country; and a man maj^
at the same time, enjoy the rights of citizenship under two govern-
ments."
Talbot V. Janson (1795), 3 Dallas. 133.
See, also, Janson v. The Vrow Christina Magdalena. Bee's Adm. 11, 23.
Messrs. E. Tilghman, Lewis, and Keed (South Carolina), in their argu-
ment for the appellees, cited 2 Ileineccius, B. II. e. 10, f. 230, p. 220,
to the efPeet that the emigrant must, in order to expatriate himself,
not only depart with that design, but must " join himself to another
state."
In April, 1800, the American schooner Jane^ flour-laden, sailed
from Baltimore for St. Bartholomew's, wdiere both vessel and cargo
were to be sold. The cargo having been disposed of at St. Bartholo-
mew's, the master, being unable to sell the vessel there, proceeded
with her to St. Thomas, where he sold her to Jared Shattuck, who
changed her name to the Clmvming Betsy and, having loaded her
with American i)roduce, cleared her as a Danish vessel for the French
island of Guadaloupe. On this voyage she was captured by a
French privateer and sent to Guadaloupe as a prize; but on the way
§■132.] EXPATRIATION. 559
thither she was recaptured by Captain Murray, of the V. S. t'ri<j:ate
Constelhttion, and carried into Martiniijue. where the master chiinied
both vessel and cargo as the property of Jared Shattuck, a Danish
burgher. It appeared that Shattuck was born in Connecticut Ijefore
the American Revohition, but was removed while an infant to St.
Thomas, where he had continued to reside since about 17fil>, having
married there, established himself in trade, and acquired vessels and
real property. About 1790 he took an oath of allegiance to the Danish
Crown, and became a Danish burgher, invested with the privileges of
a Danish subject. Captain Murray, however, considering him as
still *an American citizen, sold the cargo at Martinique and brought
the vessel to Philadelphia, where he libelled her under the act of
February 27, 1800, entitled "An act further to suspend the commer-
cial intercourse between the United States and P^rance. and the de-
pendencies thereof." (2 Stats, at L. 7.) This act provided that
from and after March 2. 1800. " all commercial intercotn'se between
any person . . . resident within the United States or under their
protection," and any person resident in France or any of her de-
pendencies, should be suspended : and that any vessel owned or em-
ployed " by any person . . . resident within the United States, or
any citizen . . . thereof resident elsewhere," and sailing there-
from after that day, which, " contrary to the intent '' of the statute,
should be " voluntarily carried, . . . destined, or permitted to
proceed, or , . . be sold, bartered, entrusted, or transferred for
the purpose that she may proceed, whether directly or from any inter-
mediate i^ort or place," to France or any of her dependencies, and also
any cargo which should be found on board of such vessel " when de-
tected and interrupted in such unlawful purpose," should be wholly
forfeited.
The act thus forbade commercial intercourse with France or her
dependencies '' by any person resident within the United States or
under their protection," and made the vessel and cargo subject to
forfeiture (1) if the vessel was owned or employed in intercourse
with a French port or place " by any person ivsident within the
United States or any citizen thereof resident elsewhere," or (2) if
she was sold or transferred for the purpose that she might proceed
to such port or place.
The court, Marshall, C. J., delivering the opinion, held :
1. That the building of vessels in the United States - for sale to
neutrals" was a profitable business which Congress could not be sup-
IDOsed to have prohibited, unless the intent was plain.
2. That an act of Congress ought never to l)e construcil to violate
the law of nations if any other construction were jxjssible. and conse-
quently should not be construed to violate neutral rights or couuuen-e.
3. That the Jane, " having been completely transferred in the
560 NATIONALITY. [§ 432.
island of St. Thomas by a hona fide sale to Jared Shattuck, and the
forfeiture allej>;ed to have accrued on a fact subsequent to that trans-
fer," the liability of the vessel to forfeiture nnist depend upon the
inquiry whether the purchaser came within the description of the act,
as a " citizen " of the United States " resident elsewhere."
4. That, whether a citizen of the United States could divest him-
self absolutely of that character, except in some manner prescribed
by law, was a question not necessary to be decided; that it appeared
by the precedents that an American citizen might " acquire in a for-
eign country the connnercial i)rivileges attached to his domicil, and
be exempted from the operation of an act expressed in such general
terms " as that under consideration ; that Shattuck, having become
" the subject of a foreign power," this fact, though it might not suf-
fice "' to rescue him from punishment for any crime committed against
the United States, a point not intended to be decided," yet placed him
" out of the protection of the United States while within the terri-
tory of the sovereign to Avhom he has sworn allegiance," and took him
'' o\it of the description of the act."
5. That '' the Charminy Betsy ^ with her cargo, being at the time
of her recai)ture the hona fide property of a Danish burgher," was not
forfeitable for being employed in trade with a French island.
Murray v. Schooner Charniins Betsy (18()4), 2 Cranch, (^4.
In a note to this case, p. 82, an opinion of ('hief Justice Ellsworth is given,
as extracted by Jiulse Tucker from The National Magazine, No. 3,
p. 254. As stated, this oi)inion was delivered in the case of Isaac
Williams, who was under trial in 1797 in the United States circuit
court in Conne<-ticnt for accepting a French connnission. In his
defense he offered to prove that lie had, prior to the war between Eng-
land and France, expatriated liimself and become a French citizen.
Chief .lustice Ellsworth is reported to have held ( 1 ) " that all the
members of a civil connuunity are bound to each other by compact,"
and (2) that " one of the parties to this compact can not dissolve it by
his own act." A member of the community could not dissolve his
compact with it without its consent or default. In the present case
there had been no default, nor had there been any consent. The act
of the Government in naturalizing foreigners did not imply such con
sent. No incjuiry was made as to the api)licant's relations to his own
original country. If he embarrassed himself " by contracting contra-
dictory obligations " the " fault and folly " were his own ; but this
implied no consent of the Government to the expatriation of its citi-
zens. The evidence was therefore rejected, and the prisoner was
found guilty, fined, and imprisoned.
Jared Shattuck, the owner of the Charming Betsy, daimeil damages
from Lieutenant Maley, commander of the U. S. vessel Experiment.
for the cai)ture of the schooner Mercator which, though built in the
United States, belonged to Shattuck. It was held that the claim for
damages was well founded. Marshall. ('. .J., delivering the opinion of
the court, said that it had been shown that Shattuck had, though
he was born iij tUe United States, removed to St. Thomas and " ac-
§432,] EXPATRIATION. 5(il
quired all the commercial rights of his domicil before the occurrence
of those circumstances which occasioned the acts of Congress," and
that the case of the Chaniihifi Jietxij determined that the vessel and
cargo were not liable to forfeiture under those acts. (Maley v. Shat-
tuck (1806), 3 Crunch, 458.)
C, a native of New Jersey, resided therein till some time in 1777,
when he removed to Philadelphia and joined the British forces. He
ever afterwards adhered to the British cause, and at the close of the
American Revolution settled in London, where he always conducted
himself as a British subject. Did he thereby become incapable, as
an alien, of inheriting lands in New Jersey in 1802? It appeared that
by an act of the legislature of New Jersey of October 4, 177(), it was
declared that all persons abiding there not only owed allegiance to
the State, but were also members of its existing government. By an
act of June 5, 1777, a pardon was offered to such " subjects " of the
State as had been seduced from their allegiance to it ; and it was
enacted that their perso)ial estate should be forfeited unless they
should return to their duty by August 1, 1777. Many of the persons
intended to be aifected having failed to return, a new act was j^assed
April 18, 1778, under Avhich the real as well as the personal estates
of such i)ersons were to be seized, the personalty to be sold and the
realty to be rented out. By this act the persons in (juestion were
termed "offenders." December 11, 1778, yet another act was passed,
by which the estates of the " fugitives and offenders " mentioned in
the i)rior acts were declared forfeited; and by section '2 every inhabit-
ant of the State who had joined the enemy between Aj)ril 1!). 1775,
and October 4, 177G, and who had not since returned and In'conu* a
subject in allegiance to the existing government by taking tlie oaths of
abjuration and allegiance, Avas declared guilty of high treason. I1(>U1.
Mr. Justice Gushing delivering the opinion, that as, by these laws of
New Jersey, which were still in force and were not affected by tlie
treaty of peace, C. Avas incapable of throwing off his allegiance to
that State, he did not become an alien to it, but retained his capacity
to take lands within its limits.
Mcllvaine r. Coxe's Lessee (1808). 2 Cranch. 280, 4 Crnnch. 201). This
was an action of ejectment. In tlie c(mrse of the argument. Mr. .lus
tice I'aterson said: " Su]>itose he [C. 1 expatriated liims(>ir since llic
peace, what is the consc(|ucnceV Does he thereby become ii cDiniihtc
alien, so as not to be ciipal)le of taking lands by dt'scent afterwards/ "'
W. Tilghman. comisel for defendant, reidied : " So I conliMid."
Kawle, counsel for C.. argued tlie matter uiion tlie laws of New .lersey.
maintaining that th«\v were conclusive on the subject. W. 'I'ilgbnian.
as reported, admitted that i>y the l.iws of New .Jersey C. was "to
be considered as a sul>,iect of New .[ersey liy force: and tb.it the St.itc
had a right to make such a law. lie had argued only u|K)n the gen-
eral ground. iiidep(>ndent of the law of New Jersey."
H. Doc. 551— vol 3 3t;
562 NATIONALITY. [§§ 433, 434.
Article TTI. of the treaty between the United States and Wiirteni-
berg of April 10, 1844, provided that the '' citizens or subjects " of
each contracting party should have the power to dispose of their
personal property within the jurisdiction of the other, and that
their heirs, legatees, and donees, being " citizens or subjects " of the
other contracting party, might take and dispose of such property,
paying only such duties as would be paid in like cases by inhabit-
ants of the country in which the property lay. It was held that this
stipulation did not apply to property of a native subject of Wiirtem-
berg who, after having been naturalized as a citizen of the United
States, died in Louisiana, bequeathing legacies to kindred residing
in Wiirtemberg, the fact that he was formerly a subject of Wiirtem-
berg giving him no rights under the treaty.
Frederioksoii v. Louisiana, 28 How. 445.
(2) SINCE 1868.
§433.
The consent of government is not necessary to enable a citizen
voluntarily to expatriate himself and become a citizen of another
country.
Green v. Salas, 31 Fed. Rep. lOG, and eases cited ; Comitis i-. Parkerson,
50 id. 55(5; Jennes r. Landes, 84 id. 73; In re Look Tin Sing, 10
Sawyer (J. C. 353 ; Browne v. Dexter, (36 Cal. 39. ,
3. Governmental Doctbine.
(1) executive utterances down to 1845.
§ 434.
" Our citizens are certainly free to divest themselves of that char-
acter by emigration and other acts manifesting their intention, and
may then become the subjects of another power, and free to do Avhat-
ever the subjects of that power may do."
Mr. Jefferson, Sec. of State, to Mr. G. Morris, Aug. 16, 1793, 4 Jeff.
Works (Washington's ed.), 37.
A claim was presented by certain persons in the character of
American citizens to the mixed commission under Article XXI. of the
treaty between the United States and Spain of October 27, 1795. An
award in favor of the claimants was made by a majority of the com-
mission, but the Spanish commissioner declined to sign it on the
ground that the claimants, who were British subjects by birth, were
not citizens of the United States at the time of the acknowledgment of
independence by Great Britain. The Spanish Government suspended
§ 434.] EXPATRIATION. 5fi3
payment of the award because the Spanish commissioner had not
signed it. The United States protested against the action of the
Spanish Government, saying: "The persons who chiim were, not
only when the treaty was made, but also when the injury was sus-
tained, according to our laws citizens of the United States. . . .
The right of naturalizing aliens is claimed and exercised by the differ-
ent nations of Europe, as well as by the United States. When the laws
adopt an individual no nation has a right to question the validity of
the act, unless it be one which may have a conflicting title to the
person adopted. Spain therefore cannot contest the fact that these
gentlemen are American citizens."
Mr. Marshall, Sec. of State, to Mr. Ilunipliroys. Sopt. 'SA, 1800, Moore. Int.
Arbitrations, II. 1001 ; MS. Inst. IJ. States Ministers, V. ;i8;3. See
remarks of Nott, C. J., in The Courad (1902), :5T Ct. CI. -LjU.
" Your proffered exertions to procure the discharge of native Amer-
ican citizens from on board British ships of war, of which you desire a
list, has not escaped attention. It is impossible for the United States
to discriminate between their native and naturalized citizens, nor
ought your Government to expect it, as it makes no such discrimina-
tion itself. There is in this office a list of several thousand American
seamen, who have been impressed into the British service, for whose
release applications have from time to time been ah-eady made; of
this list a copy shall be forwarded you, to take advantage of any
good offices you may be able to render."
Mr. Monroe, Sec. of State, to Mr. Foster, British minister. May '.V\ 1M2.
Am. State Papers, For. Rel. III. 454.
The British (Jovernment, durinj? the war of 1S12, ri'fused in a number of
cases to treat i)ersons who. though l)orn in (Jreat Britain, had Iteen
naturalized in the United States, as prisoners of war. transferring
them to prisons and rejecting ])roposals for tlu'ir excliange. Tiie
action of tlie (Jovernment of the United States in tiiis relation is
given in .\m. State pai)ers, For. Kel. 111. (!.30. As to expatriation, as
involved in the (piestion of impressment, see Adams' Hist, of tlic
United States. II. 332-.3.'50 ; supra. 8 :'.17.
" It is known that almost all seamen in the service of Colom-
bia are foreigners, and many of them citizens of the United States,
enlisted in the Colombian service in violation of the laws of their
own country. . . . By the j)resent constitution of Colombia, the
rights of citizenship are confined to natives of the territory and their
children, landholders at the commencement of the i-evolutiou who
have adhei'cd to the cause of independence, and strangers after
obtaining letters of naturalization. Von w ill ascertain how these let-
ters of naturalization are obtained. If they are granted, of course,
to every sailor who enlists in their sei'vice. you will take some projx'r
occasion to represent that this system interferes with the rights of
564 NATIONALITY. [§ 434.
other nations; and that altliough the United States freely admit the
right of their native citizens to expatriate themselves, yet they can-
not admit the exercise of that right by the violation of their laws or
of the contracts of the expatriated individuals with others of their
citizens."
Mr. J. Q. Adams, See. of State, to Mr. Anderson, May 27, 1823, MS. Inst,
to U. S. Ministers, IX. 274, 303.
" I transmit the passports requested in your letter of the 9th instant,
for Mr. Charles Brundock and Jasper Christianson, and return their
certificates of naturalization. You will please have the blanks filled
up with the description of their persons and transmit a copy thereof
to this Department. Whether those persons, upon returning to the
countries within whose allegiance they were born, wnll be liable to
perform military duty, will depend upon the laws of those countries
respectively, and upon circumstances [on] wdiich this Department is
not willing to express an opinion in anticipation."
Mr. Forsytli, Sec. of State, to Mr. Strobecker, April 15, 1835, 27 MS. Dom.
Let. 810.
John Philipp Knoche, a native of Prussia, emigrated to the United
States in 1834, being then tw^enty-one years of age. He remained in
the United States six years and became a naturalized citizen, and
then returned to Prussia, where he was compelled to enter the armj\
He applied to the American legation at Berlin for its interposition.
Mr. Henry AVheaton, who was then American minister to Prussia,
replied: "It is not in my powder to interfere in the manner you
desire. Had you remained in the United States or visited any other
foreign country (except Prussia) on your lawful business, you would
have been protected by the American authorities, at home and
abroad, in the enjoyment of all your rights and privileges as a nat-
uralized citizen of the United States. But, having returned to the
country of your birth, yoiir natlre domicil mid national character
revert (so long as you remain in the Prussian dominions), and you
are bound in all respects to obey the law^s exactly as if j^ou had
never emigrated." -
Mr. Wlieaton. uiin. to Prussia, to Mr. Knoclie, .July 24. 1840, enclosed
with Mr. Wheuton's No. 157, to Mr. Forsyth, Sec. of State, July 21),
1840, S. Ex. Doc. 38, 36 Cong. 1 sess. 0, 7.
Replying to a complaint of the Mexican Government that the revo-
lution in Texas was aided by persons from the United States, Mr.
Webster said : " These persons, so far as is known to the Govermnent
of the United States, repair to Texas, not as citizens of the United
States, bat as ceasing to be such citizens, and as changing, at the same
§434.] EXPATRIATION. 565
time, their allegiance and their domicil. . . . The Government of
the United States does not maintain, and never has maintained, the
doctrine of the perpetnity of natural allegiance. And surely Mexico
maintains no such doctrine; because her actually existing govern-
ment, like that of the United States, is founded in the principle that
men may throw off the obligation of that allegiance to which they
are born. . . . Mexico herself has laws granting ecjual facilities
[with those of the United States | to the naturalization of foreigners.
On the other hand, the United States have not ])asse(l any law re-
straining their OAvn citizens, native or naturalized, from leaving the
country and forming political relati(ms elsewhere. Xor do other
Governments in modern times attempt, any such thing. It is ti-ue
that there are Governments which assert the principle of perpetual
allegiance; yet, even in cases where this is not rather a matter of the-
ory than of practice, the duties of this supposed continuing allegiance
are left to be demanded of the subject himself, when within the reach
of the power of his former Government, and as exigencies may arise,
and are not attempted to he enforced by the imposition of previous
restraint, preventing men from leaving their country.''
Mr. Webster, Sec. of State, to Mr. Thompson, niin. to Mexico, .July S, 1S4*J.
6 Webster's Works, 44,5, 454.
" The Government of the United States have no ix)\ver to extend protec-
tion to naturalized citizens who voluntarily return to their native
country." (Mr. Webster, Sec. of State, to Mr. liryan. March 21. 1.S4:'.,
38 MS. Dom. Let. 117.)
" From these provisions [of the naturalization laws] it would
seem, by neces.sarv implication, that our laws presuppose a right on
the part of citizens and subjects of foreign powers to expatriate theui-
selves and transfer their allegiance, and, although the abstract riglit
has not to my knowledge been settled by any authoritative decisiou,
I feel no difficulty in expressing the o])inion that the United States,
acting upon these principles in refei-ence to the citizens and subjects
of other countries, would not deny their api)lication to cases of
naturalizaticm of their own citizens by foreign powers, and, of course,
to the case of Demerlier, who, if he should be naturalized by France,
would, on this view of the subject, be absolved fi-om his aUegiance to
the United States."
Mr. Calhoun, Sec. of State, to INIr. raKtH)t. French min.. Nov. IMl 1S44. MS.
Notes to French Leg. VL S4.
566 NATIONALITY. [§ 435.
(2) MK. lirCHANAN's ASHKKTION OK ITNgUAl.lKlKI) KUJIIT.
§435.
" The fact of your having become a citizen of the United States has
the effect of entitling you to the same protection from this Govern-
ment that a native citizen woukl receive."
Mr. Biiehanan, s^eo. of Stato, to Mr. Kosset, Nov. 2r>. 184r>, .'i.'i MS. Doiii.
Let. ;«o.
" The (lovernment of tlie United States affords equal protection
to all our citizens, whether naturalized or native, and this Depart-
ment makes no distinction between the one and the other in granting
passports.
" It is right to inform you, however, that difficulties have arisen
in cases similar to yours. In more than one instance European gov-
ernments have attempted to punish our naturalized citizens, who had
returned to their native country, for military offences committed
before their emigration. In every such case the (xovernment has
interposed, I believe successfully, for their relief; but still they have
in the meantime been subjected to much inconvenience. Under
these circumstances I could not advise you to incur the risk of
returning to Oldenburg, if the business which calls for your pres-
ence there can be transacted by any other person."
Mr. Buchanan. Sec. of State, to Mr. linesman, March 10. 1847, 30 MS.
Dom. Let. 200.
"A native of the island of Cuba, who has been naturalized in the
United States, retains his rights as an American citizen upon his
leturn to that island, at least until he has manifested, by unequiv-
ocal acts, his intention to become again a Spanish subject."
Mr. Buchanan, Sec. of State, to Mr. ranii)hell, consul at Havana, .July
2<;. 1848, 10 MS. Desp. to Consuls, 473.
" Whenever the occasion may require it, you will resist the British
doctrine of perpetual allegiance, and maintain the American prin-
ciple that British native-born subjects, after they have l)een natural-
ized under our laws, are, to all intents and purposes, as much Auier-
ican citizens, and entitled to the same degree of protection, as though
they had been born in the United States."
Jlr. Buchajian. Sec. of State, to Mr. Bancroft, nihi. to EuKland, Oct. 28,
1848, 47 Brit. & For. State Pap. 123(5, 1237.
"»Our obligation to protect both these classes [naturalized and
native American citizens] is in all respects equal. We can recognize
no difference between the one and the other, nor can we permit this to
§ 436.] EXPATRIATION. 567
be done by any foreign government, without protesting and remon-
strating against it in the strongest terms. The subjects of other coun-
tries who, from choice, have abandoned their native land, and,
accepting the invitation Avhich our hiws present, have emigrated to
the United States and become American citizens, are entitled to the
very same rights and privileges, as if they had Ix'en born in the coun-
try. To treat them in a diiferent manner, would be a violation of our
plighted faith, as well as of our solemn duty."
Mr. Buchanan, Sec. of State, to Mr. Bancroft, niin. to England, Dec. 18,
1848, 47 Brit. & For. State Pap. 1241, 1248.
For the reply of Lord Palnierston, Aug. 10, 1849, to protests made by Mr.
Bancroft In accordance with hi.s instructions, see S. E.\. Doc. 38. 3(5
Cong. 1 ses.s. 107.
(3) BEVEBSION TO EARLIER DOCTBINE.
§ 436.
Replying to an inquiry whether Mr. Victor B. Depierre, a native of
France, but a naturalized citizen of the United States, could " expect
the protection of this Government in that country, when proceeding
thither with a passport " from the Department of State, JSIr. Webster
said : " If, as is understood to be the fact, the Government of France
does not acknowledge the right of natives of that country to renounce
their allegiance, it may lawfully claim their ser\ices when found
within French jurisdiction,"
Mr. Webster, Sec. of State, to Mr. Nones. .Tune 1. 1S.-.2. S. Ex. Doc. 38. 30
Cong. 1 sess. ;"> ; 40 MS. Doni. Let. 102.
To the same effect, see ^Ir. Webster, Sec. of State, to Mr. 'I'olcn, June 2."),
18.52, 40 MS. Dom. Let. 204.
" The doctrine of inalienable allegiance is no doubt attended with
great practical difficulties. It has been affiruied l)y the Supreuie
Court of the United States, and by more than one of the State courts;
but the naturalization laws of the United States certainly assume
that a person can, by his own acts, divest himself of the allegiance
under which he was born, and contract a new allegiance to a foreign
power. But, until this new allegiance is contracted, he must bo con-
sidered as bound by his allegiance to the government under wliich he
was born, and subj'ect to its laws; and this undoubted priMci|)le
seems to have its direct application in the present cases,
"The Prussian Government recpiires of all its subjects a certain
amount of military service. However onerous this re(iuiremeiit may
l)e, it is purely a matter of domestic policy, in which no foivigu gov-
ernment has a right to interfere. It appears that there is no exeiup-
tion from the obligation to render this service in favor of persons
568 NATIONALITY. [§ •t'^^».
wishing to leave the country, unless they apply for and receive from
the proper authorities what is termed 'a certificate of emigration.'
This 'emigration certificate' seems, like an ordinary passport, to be
granted as a matter of course on application. When the vast extent
of the Prussian military establishment is considered, and its impor-
tance in the monarchy, such a regulation, in reference to persons
wishing to emigrate, who, as you are aware, now amount to many
thousands annually, can not be regarded as otherwise than liberal.
But even if a different system prevailed, and if the previous rendi-
tion of a certain amount of military duty were made the condition
sine qua non of granting the ' emigration certificate,' however op-
pressive the rule might be, a foreign government could have no right
to interfere with its execution.
" If, then, a Prussian subject, born and living under this state of
law, chooses to emigrate to a foreign country without obtaining the
' certificate ' which alone can discharge him from the obligation of
military service, he takes that step at his own risk. He elects to go
abroad under the burden of a duty which he owes to his Government.
His departure is of the nature of an escape from her laws, and if, at
any subsequent period, he is indiscreet enough to return to his native
country, he can not complain if those laws are executed to his disad-
vantage. His case resembles that of a soldier or sailor enlisted by
conscription, or other compulsory process, in the army or navy. If he
should desert the service of his country, and thereby render himself
amenable to military law, no one Avould expect that he could return to
his native land and bid defiance to its laws, because in the meantime
he might have become a naturalized citizen of a foreign state."
Mr. Everett, Sec. of State, to Mr. Barnard, min. to Prussia, Jan. 14,
1853, S. Ex. Doc. 38, 36 Cong. 1 sess. 53-54; MS. Inst. Prussia. XIV.
19G.
Witli this instruction, Mr. Everett enclosed a copy of the letter of Mr.
Webster to Mr. Nones, .Tune 1, 1852, supra, and stated that his view
was the same as that taken by Mr. Webster. (Id. 190.)
With reference to his instructions to Mr. Barnard, Mr. Everett stated
that the " whole subject " Avas " specially submitted " to him " for
decision," and that " it V\'as determined after mature consideration,
with the sanction of the President." (Mr. Everett, Sec. of State, to
Mr. Fuller, M. C, March 2, 1853, 41 MS. Dom. Let. .3(M).)
In the case of Mr. Grill, a naturalized citizen of the United States, whose
IH'operty at Hamburg was attached by the government of that city
because of his failure to perform military service, Mr". Everett said:
"This would seem to be a judicial question, to l>e de<'idtHl l)y tlie
courts of Hamburg pursuant to the 7th and 8th articles of the
treaties between the United States and the Hanse Towns of the 20th
December, 1827." (Mr. Everett, Sec. of State, to Mr. Hall, M. C,
Dec. 15, ^852, 41 MS. Dom. Let. 144.)
436.] EXPATRIATION. 569
•
"With reference to our verl)al conversation, some days ago, in rela-
tion to the liabilities to which emigrants from Prussia and other
Gennan States, who have become citizens of the United States, are
subjected when they voluntarily return to those States, after having
left their native country without the necessary ])erinission of emigra-
tion, and without fulfilling their military duties prescribed by law
after having attained a certain age, T beg leave to inclose hereby an
extract from the laws of Prussia and from the constitution of Prussia
on this subject, by which you will perceive that Prussia doe^+ not pre-
tend to enforce any allegiance upon the said emigrants, but that, if
they return to Prussia, they are made resjionsiljle for having violated
our laws in the cases above mentioned and are considered as criminals
forfeited to the punishment of the law, from which no citizenship of
any nation can liberate them."
Baron Gerolt, Prussian min.. to Mr. Maroy, Sec. of State, .Tuly 11, ISi.*?,
S. Ex. Doc. 88, 30 Cong. 1 sess. 70.
The extract enclosed by Baron Gerolt was from the laws of I'russla of
December 31, 1842, and from the Prussian constikition of 1850. By
the former (§ 15) the quality of a Prussian subject was lost (1) by
discharge upon the subject's request, (2) by sentence of the com-
petent authority, (3) by living ten years in a foreign country, (4)
by the man-iage of a Prussian female with a foreigner ; but. by other
provisions of the law, as well as by the constitution, the permission
to emigrate as well as the discharge from allegiance was subject to
the performance of the duties of military service.
"Prussia . . . claims the right to exact military service fi'om her
subjects who have emigrated to or have been naturalized in other
coiuitries without having procured a certificate of emigration, and she
has in many instances enforced the performance of that duty uiH)n
those who have returned to that country. The interposition of the
Government of the United States in Itehalf of such as were natural-
ized in this country has not been effectual in inducing her to forego
this claim." (Mr. Marcy. Sec. of State, to Mr. Bielfeld, .Inly (!, 18."»3,
41 MS. Dom. Let. 442.)
"This Government cannot rightfully interpose to relieve a natu-
ralized citizen from the duties or j)enalties which the laws of his
native countrj'^ may impose upon him on his voluntary return within
its limits. AAHien a foreigner is naturalized tlie Govennnent does
not regard the obligations he has incurred elsewhere, nor does it
undertake to exempt him from their jx'rformance. lie is admitted
to the privileges of a citizen in the country, and to the rights which
our treaties and the law of nations secure to American citizens
abroad. In this respect he has all the rights of a native-born citizen,
but the vindication of none of these rights can re(|uire or authorize
an interference in his behalf with the fair ai)plication to him of the
municipal laws of his native country when he voluntarily subjects
himself to their control in the same manner and to the same extent
570 NATIONALITY. [§ 430.
•
as they would apply if he had never left that country. A different
view of the duties of this (iovernnient would Iw an invasion of the
independeiK-e of nations, and could not fail to 1h' productive of dis-
cord; it niitj^ht, moreover, prove detrimental to the interests of the
States of this Union."
Mr. Marey. Sec. of State, to Mr. Daniel, niin. to Sardinia, Nov. 10, 1855,
MS. In.st. Italy. 1. 88.
See, also, Mr. Marcy. Sec. of State, to Mr. Meyer, May Ifl, 1853, 41 MS.
Doui. Let. ;i92; to Mr. Bielfeld. .July <>. \m:i, id. 442; to Mr. Kinnian,
April 8, ISTA, 42 id. 'A^'i ; to Mr. Wendell, Sept. 7, 1854. 4;{ id. 102 ;
to Mr. Campbell. Sept. 8. 1854, S. Ex. Doc. 38. SC, Cong. 1 sess. 189.
In 1850 the Department of State submitted to Mr. Gushing, as
Attorney-General, the following question propounded by the Bava-
rian minister at Berlin : " "Whether, according to the laws of the
United States of iVmerica, a citizen thereof, when he desires to expa-
triate himself, needs to ask either from the Government of the United
States, or of the State of which he is the immediate citizen, permis-
sion to emigrate; and if so, what are the penalties of contravention
of the law?"
Mr. Gushing, after adverting to the fact that the National Gov-
ernment had not undertaken to formalize any general law either of
citizenship or of emigration, referred to the laAvs of Virginia, which
required, he said, as conditions of the relinquishment of citizenship,
(1) a solemn declaration of intention to emigrate, with actual emi-
gration, and (2) the assumption in good faith of a foreign alle-
giance, but declared (8) that the act of expatriation should have no
eifect if done while the State or the Unite'd States w^as at war with
a foreign poAver; nor could a citizen of Virginia by emigration dis-
charge himself from any obligation to the State, the nonperform-
ance of which involved by its laws any penal consequence. Ken-
tucky, said Mr. Gushing, had substantially similar laws; but no
other State, so far as his observation went, had attempted to solve
such questions by express legislation. The constitutions of Penn-
sylvania and Indiana declared that emigration from those States
should not be prohibited, but it was undoubtedly the case, said Mr.
Gushing, that military desertion could not be covered up under the
cloak of emigration. Mr. Gushing thought that the Federal Gov-
ernment recognized the same principle, and cited to that effect the
letter of Mr. Jefferson to Mr. Morris, August 16, 1793, supra, § 434, to
the effect that the laws '* do not admit that the bare commission of a
crime amounts, of itself, to a div'estment of the character of citizen,
and withdraws the criminal from their coercion.^' Mr. Gushing
then examined several decisions of the Federal and State courts, the
results of which he summarized thus: "Expatriation a general
right, subject to regulation of time and circumstance according to
§437.] EXPATRIATION. 571
public interests; and the requisite consent of the State presumed
where not negativ^ed by standing proliibitions."" In conchision. he
expressed the opinion that, subject to '" the conditions tlius indi-
cated," and to " such others as the public interest might seem to
Congress to require to be imposed," " the right of expatriation exists,
and may be freely exercised by the citizens of the United States."
Mr. CusLing, At-Gen., Oct. 31, 18.50. 8 Op. 180.
In the course of his opinion, at p. 10.*?, Mr. Cushing said: "In truth,
opinion in the United States lias l)een at all times a little colored on
the subject by necessary opposition to the assuinjition of (Ireat
Britain to uphold the doctrine of indefeasible allesiance. and in
terms to prohibit exi)atriation. Hence we have been prone to regard
it hastily as a question between kings and their subjects. It is not
so. The true question is of the relation between the i)olitical
society and its members, upon whatever hyiwthesis of right, and in
whatever form of organization, that society may be constituted.
"The assumption of a natural right of emigration, without i)ossible
restriction in law, can be defended only i>y maintaining that each
individual has all possible rights against the society, and the society
none with respect to the individual ; that there is no social organ-
ization, but a mere anarchy of elements, each wholly iiide|)enilent of
the other, and not otherwise ccnsociated save than by tlu'ir casual
coexistence in the same territory. (Ahrens, Droit Naturel, p. ."^24.)"
The Bavarian minister at Berlin subsetiuently asked for an explanation
of Mr. Cushing's opinion, with reference to the specific case of a
native of Bavaria who came to the United States and was natural-
ized but afterwards returned to Bavaria and sought to n'covcr his
status as a Bavarian subject. The Bavarian authorities susi)entfed
action pending an inquiry whether he might throw off his allegiance
to the United States, and if so, in what manner it was to be done.
Attorney-(Jeneral Black replied that there was no law of the United
States which prevented either a native or naturalized citizen " from
severing his i)olitical connection with this (Joverimient. if he sees
proper to do so, in time of peace, and for a puri)os<» not directly inju-
rious to the interests of the country. There is no nnxlr of rcnuncia-
ticm prescril)ed." (Black. At.-iJen.. Aug. IT. 1S.")7. !» ()i>. •"J.)
(4) KKASSERTION OK rXQUAI.! I'lKD KKiUT. IS.'tT-lSCl .
§ 4:'. 7.
In notes of October 23, 18r)S, and Marcli IC. IS.-il). Mr. Scldeideu,
the representative of Bremen at Washington, solicited the views of
the Department of State concerning the i)ossible surrender by his
Government to other (lerman States, undei- treaties with tlH> lattci-. of
persons from whom, as natives of such States, military service miojit
l>e claimed, although they had been naturalized in the Tnited States.
The Department of State, in reply, took the gi-ound that the (|uestion
involved was political in its nature, and as such should l»e left to the
572 RATIONALITY. [§487.
determination of the parties concerned, and should not 1k> decided by
a third state, such as Bremen, by the delivery up of the person
demanded. In the course of its reply, the Department of State sjiid :
" It is undoubtedly true that this (Jovernment has acquiesced in the
opinion expressed by Mr. AVheaton that, when a citizen who has
been liable to military duty leaves his own country without permis-
sion, and without having performed this duty, an<l is naturalized in
another country, he may be held to discharge his liability whenever
he is found again in his native state. This opinion, however, is
regarded by this (lovernment as applying not to cases of inchoate
liability, but to cases only where the liability has become complete.
To speak of a minor as liable to military service simply because, if he
should live long enough in the country, he might become so, could not
be fairly regarded as either appropriate or just. It is unnecessary,
however, to discuss this distinction with reference to your letter, be-
cause your inquiry refers to a case of admitted liability."
Mr. Cass, Sec. of State, to Mr. Schleiden, April J), 1859, S. Ex. Doc. :?8, 80
Cong. 1 .sess. 19;").
See, also, Mr. Schleiden to Mr. Cass, Nov. 28. 18.">9; Mr. Cass to Mr.
Schleiden, Jan. 26, 1860, S. Ex. Doc. 38, 36 Cong. 1 ses.s. 211, 222.
" The position of the United States, as communicated to the min-
ister at Berlin for the information of the Prussian Government, is
that native-born Prussians naturalized in the United States and
returning to the country of their birth are not liable to any duties or
penalties, except such as were existing at the period of their emigra-
tion. If at that time they were in the army or actually called into
it, such emigi'ation and naturalization do not exempt them from
the legal penalty which they incurred by their desertion, but this
penalty may be enforced against them whenever they shall volun-
tarily place themselves within the local jurisdiction of their native
country, and shall be proceeded against according to law. But when
no present liabilities exist against them at the period of their emi-
gration, the law of nations, in the opinion of this Government, gives
no right to any country to interfere with naturalized American
citizens, and the attempt to do so would be considered an act unjust
ill itself and unfriendly towards the United States. This question
can not, of course, arise in the case of a naturalized citizen who
remains in the United States. It is only when he voluntarily returns
to his native country that its local laws can be enforced against him."
Mr. Cass, Sec. of State, to Mr. Ilofer. .Tune 14, 18ij9. 50 MS. Doni. Let. ;W9.
In an instruction to the American minister at Berlin, to which the fore-
going letter refers, Mr. Cass said: " If the future liability to do mili-
tary duty creates a perpetual oliligation wherever the i)arty may be,
and whatever other resitonsiliilities he may have incurred, the same
principle will enable a Government to prevent its subjects or citi-
§ 437.'] EXPATBIATION. 573
zens from ever leaving its dominions or changing their home. It
would be a practical denial of all right of expatriation, and a full
assertion of the doctrine of pen^etual allegiance." (Mr. Cass, Sec.
of State, to Mr. Wright, min. to Prussia, May 12, 1859, MS. Inst.
Prussia XIV. 274.)
With reference to his letter to Mr. Hofer of the 14th of .Tune, Mr. Cass
said: "The proper ai)plication of this principle to cases as they arise
depends on the existing facts, and it is not the practice of the
Department to anticipate such cases and pronounce its opinion upon
them in advance." (Mr. Cass, Sec. of State, to Mr. I'eebles, .Tune
21, 1859, 50 MS. Dom. Let. 417.)
See, also, Mr. Cass, Sec. of State, to Mr. Cushing, June It!, 1859; to Mr.
Osterle, June 24, 1859 : 50 MS. Dom. Let. 404, 427.
Christian Ernst, a native of Hanover, emigrated to the United
States in 1851, when nineteen years of age. In Feb-
Case of Christian ^.^^^^.^^ -^^^^ij^ j^^ ^^..^^ naturalized, and in the fol-
lowing month procured a passport and went back
to Hanover on a visit. After arriving in his native village he
Avas arrested and forced into the Hanoverian army. President
Buchanan submitted the case to Attorney-Oeneral Black for an
opinion. Attorney-General Black advised (1) that the course to
be taken must depend " upon the law of our own country, as con-
trolled and modified by the law of nations;"' (2) that it was the
" natural right of every free person, who owes no debts and is not
guilty of any crime, to leave the country of his birth in good faith
and for an honest purpose," and to throw oft' his natural allegiance
and substitute another in its place; (3) that, although the connnon
law of Englajid denied this right, and " some of our own courts,
misled by British authority, have expressed, though not very decis-
ively, the same opinion," this was not to be taken as settling the
question; (4) that "natural reason and justice," "'writers of kuowu
wisdom," and " the practice of civilized nations "• were all '"■ oi)|)osed
to the doctrine of perpetual allegiance," and that the United States
was pledged to the right of expatriation and could not without per-
fidy repudiate it; (5) that expatriation '"includes not only c/tiff/rd-
tion out of one's native country, but rudtirdlKnit'ioh in the country
adopted as a future residence:*" ((>) that *' nattn-alization does ipxo
facto place the native and the adopted citizen in pi-ecisely the same
relations with the government under which they live. excei>t in so far
as the express and positive law of the country has made a distinction
in favor of one or the other;" (7) that, with regard (o the protec-
tion of American citizens in their rights at home and abroad, tliere
was no law that divided them into classes or made any diftcrcnce
w'hatever between them: (S) that the opinion licld by "persons of
very high reputation"" that a naturalized citizen ought to b' i)ro-
tected everywhere except in the country of his birth had "" no founda-
574 NATIONALITY. [§ ^37.
tion to rost upon . . . except the do^ma which denias altogether
the right of expatriation without the consent of his native country;"
(9) that the naturalization laws were opposed to this view " in their
whole spirit as well as in their express words," and that the states of
Europe were "also practically connnitted against it;" (10) that,
assuming that Hanover had a municipal regulation by which the
right of exj)atriation was denied to those of her subjects who failed
to comply with certain conditions, and assuming that this regulation
was violated by Mr. Ernst when he came away, the unlawfulness of
his emigration would not make his naturalization void as against the
King of Hanover; (11) that, if the laws of the two countries were in
conflict, the law of nations must decide the question upon principles
and rules of its own, and that " by the public law of the world we
have the undoubted right to naturalize a foreigner, whether his
natural sovereign consented to his emigration or not;" and, finally,
(12) that the Hanoverian Government could justify the arrest of
Mr. Ernst only by proving that the original right of expatriation
depended on the consent of the natural sovereign — a proposition
which, said Mr. Black, " I am sure no man can establish."
Black, At. Gen., July 4, 1859, 9 Op. 35G.
The views of the President in relation to the case of Christian
Ernst and analogous cases were connnunicated to the American min-
ister at Berlin, July 8, 1859. In this connnunication the position was
maintained that the right of expatriation could not be doubted or
denied in the United States; that the Constitution recognized it by
conferring on Congress the power to establish a uniform rule for natu-
ralization; that Congress had uniforndy acted upon the principle
since the commencement of the Federal Government, and that there
was no country in Europe whose laws did not authorize the naturali-
zation of foreigners in some form. What right, then, it was asked,
did the laws of the United States confer upon a foreigner by grant-
ing him naturalization ? The answer was, all the rights, privileges,
and immunities which belonged to a native citizen, except that of
eligil)ility to the office of President. " With this exception," it was
affirmed, " the naturalized citizen, from and after the date of his nat-
uralization, both at home and abroad, is placed upon the very same
footing with the native citizen. He is neither in a better nor a worse
condition. . . . The moment a foreigner becomes naturalized his
allegiance to his native country is severed forever. He experiences a
new political birth. A broad and impassable line separates him from
his native country. He is no more responsible for anything he may
say or do, or omit to say or do, after assuming his new character,
than if he had been born in the United States. Should he return to
§ 437.] EXPATRIATION. 575
his native country, he returns as an American citizen, and in no other
character. In order to entitle his original government to punish him
for an offence, this must have been committed while he was a subject
and owed allegiance to that government. ... It nuist have been
of such a character that he might have been tried and punished for it
at the moment of his departure." It was further nuiintained that by
the treaty with Hanover, which provided that the '* inhabitants " of
each country should be permitted to sojourn in all parts of the other,
submitting to the laws, every inhabitant of the United State?? had a
right to visit that country and sojourn there in the prosecution of his
business, and that no distinction could be made in this regard between
a native and a naturalized citizen of the United States.
Mr. Cass, Sec. of State, to Mr. Wright, niiii. to I'russia, .July S. l,s.V.). S.
Ex. Doc. 38, 3(5 Cong. 1 sess. 132.
In the foregoing instruction a clear distinction was drawn iK'twccn tlic
case of a person wlio had comniittod an offence before enngration,
and a person whose offence was alleged to have l)een conunitted
after emigration. In this relation, the instruction said : " If a soldier
or a sailor were to desert from our army or navy, for which offence
he is liable to a severe punishment, auct after having become a
naturalized subject of another country, should return to the I'nited
States, it would be a singular defence for him to make that he was
absolved from his crime because after its connnission he had become
a subject of another government. . . . During the last war with
Great Britain, in several of the States. I might mention Pennsylvania
in particular, the militiaman who was drafted and called into the
service was exposed to a severe penalty if he did not obey the draft
and muster himself into the service, or in default thereof procure a
substitute." In such a case it was not possible to imagine that if
an individual, after incurring the penalty, had gone to a foreign
country and become naturalized, and then returned to I'ennsylvania,
the arm of the State authorities would have been paralyzed. (Id.
135-136.)
Mr. Wright was instructed to demand the inunediate discharge of
p]rnst from his compulsory service, and full reparation for whatever
injury he had suffered, either in person or in i)r()perly. August liO.
1859, the Hanoverian Government stated that a " full i)ardon " had
been granted to Eruirt and that he had been "•dismissed"' from the
military service. The Hanoverian (Jovernment added, however, that
similar conflicts could be prevented in the future only by the I'nited
States " renouncing its own views on the sui»ject. wiiich do not
agree with international relations," or by concluding a special
arrangement. (Id. 14.V14(). )
See, also, Mr. Cass, Sec. of State, to .Mr. Wright. Dec. !). 1S.".!>. id. 1 17. and
Mr. Cass, Sec. of State, to Mr. Mason, min. to France. .Tune I'T. \sr>'.).
id. 198.
The instruction to Mr. Wright was i)rinted and issued in cinular form
as e.xpressing the views of the I'nited St;ites. (Mr. (ass. Sec of
State, to Mr. Tugh. M. C., Feb. 1. l,S(!(t. .".1 MS. Doni. Let. IIS: Mr.
Appleton, Assist. Sec. of State, to Mr. Weidman. Ai>ril ^^l KSCO. '>'2 id.
576 NATIONALITY. [§ 437.
188; Mr. Trescot, Assist. Sec. of State, to Mr. Salsbacher, Aug. 24,
1860, 53 id. 47; Mr. F. W. Seward, Assist. Sec. of State, to Mr.
Roasen, April 6, 1861, 53 id. 542.)
" I have the honor herewith to transmit a copy of a despatch of the
22d ultimo, from the consul-general of the United State.s at Havana
to this Department, on the subject of a recent order issued by the
governor of Sagua la Grande, summoning a naturalized citizen of the
United States, temporarily residing at that place, to surrender him-
self at the barracks for military duty. It appears that Mr. Ijeaiio,
the individual alluded to, who is a native of Spain, answered the sum-
mons of the governor and exhibited to him his certificate of naturali-
zation, with other proofs of his American 'citizenship, notwithstand-
ing which, however, he was ordered either to go to the barracks for
the performance of the military service exacted of him, or give bond
in the penalty of $318 as indemnity for the nonperformance of such
service. To escape being sent to prison, he executed the bond under
protest. ...
" You are requested to call the attention of the Government of Her
Catholic Majesty without delay to this case, as one in which much
interest is felt by the President, involving as it does the claim of a
foreign government to interfere with the personal security and liberty
of citizens of the United States whose interests may require them to
return temporarily to the respective coimtries of which they Avere
once inhabitants. This claim, which, as you are aAvare, is denied
by the Government of the United States, has in all recent cases been
yielded without hesitation upon representation of the views of this
Government respecting it. These views are given at length in a des-
patcli of the 8th of July last, addressed to Mr. Wright, at Berlin,
a printed copy of which you will receive by the next mail.
" Fortunately such cases as the one in question are not likely to be
of frequent occurrence, and the President indulges the confident hope
that the Government of Her Catholic Majesty will at once direct its
authorities in Cuba to put a stop to all future proceedings against
Mr. Leaiio, and at the same time take such measures as may prevent
the recurrence of similar proceedings, so likely to interrupt the
friendly relations of the two countries."
Mr. Cass, Sec. of State, to Mr. Preston, min. to Spain, March 1, 186(),
MS. Inst. Spain, XV. 235.
" Our Government is bound to protect the rights of our naturalized
citizens everywhere to the same extent as though they had drawn
iheir first breath in this country. We can recognize no distinction
betweeen our native and naturalized citizens."
President Buclianan, annual message, Dec. 3, 1860, Kicliardson's Mes-
sages, V. 641.
§ 438.] EXPATRIATION. 577
(5) COURSE DURING CIVIL WAR.
§ 438.
" Recurring to your despatch No. 8, which has already been ac-
knowledged, I have now the honor to give you the President's views
in regard to the proceedings in Prussia, by which natives of Prussia
who have voluntarily exchanged allegiance from that Government
for the rights and privileges of citizens of the United States, and
have been duly naturalized as such, are nevertheless arrested and
held liable to perform military service on occasions of their transient
visits to their native country. The question involved in these j^u'o-
ceedings is an old one, and was a subject of elaborate discussion
between the two countries before the occurrence of our late civil war.
Considerations of ease and policy prevailed with this Department to
allow the subject to rest during the continuance of the war. We
became even less anxious upon the subject when it was seen that
worthless naturalized citizens fled before the requirement of military
service by their adopted Government here, and not only took refuge
from such service in their native land, but impertinently demanded
(hat the United States should interpose to procure their exemption
from military service exacted there. Those circumstances, however,
have passed away, and the question presents itself in its original
form. The United States have accepted and established a Govern-
ment upon the principle of the rights of men who have committed no
crime to choose the state in which they will live, and to incorporate
themselves as members of that state, and to enjoy henceforth its
privileges and benefits, among which is included protection. This
principle is recommended by sentiments of humanity and abstract
justice. It is a principle which we cannot Avaive. It is not believed
that the military service which can be procured by any foreign state
in denial of this principle can be important or even useful to thnt
state. The President desires that you will present the subject to the
serious consideration of Count Bismarck. In doing so, yon will
assure the minister for foreign ati'airs that we are animated by sen-
timents of sincere friendship and good will to Prussia, and that there-
fore we shall be ready to receive and consider with candor any
opinions upon the subject that the Prussian Government may think
proper to communicate.
" You will also assure Count Bismarck that any suggestions that
he may think ])roper to make relative to the extradition laws of the
two countries will receive just and friendly attention."
Mr. Seward. Sec. of State, to Mr. Wrijrlit. iiiiii. to iTussia. Hcc. 2. ISC,.-),
Dip. Cor. 18()5. III. (>8 ; MS. Inst. Prussia. XIV. 4l»2.
H. Doc. 551— vol 3 37
578 NATIONALITY. [§438.
"The (luostion with roKsml to the right of a foreiKii governniont to claim
and (Mifoi-co military s(>rvi(«' from such of its sui)j('cts as may volun-
tarily placed themselves within its jurisdiction after having hecome
citizens of the United States is still a matter of controversy." {Mr.
F. W. Seward, Assist. Sec. of State, to Mr. Ilaurer, March 20. 18G1.
53 MS. Dom. Let. 491.)
The " general views, however, ... of the Executive Government in
regard to the impressment of naturalized citizens into the military
service of foreign countries, are exi)ressed in the instruction of my
predecessor of the 8th of July, 1850, to Mr. Wright, the United States
minister at Berlin, a copy of which is enclosed." (Mr. Seward, Sec.
of State, to Mr. Kind, March 18, 1803, (K) MS. Dom. Let. 27.)
See Mr. Seward, Sec. of State, to Mr. Judd, min. to Prussia, No. 27, April
3, 18G2, MS. Inst. Prussia, XIV. 348.
" In view of the present condition of the Union, it is deemed inexpedient
to instruct you to institute proceedings for ohtaining the exemption
of William Lade, Augustus Henry Jaenschke, and Alexander Kloss
from the claims of the I'russian Government for military service.
Citizens of the United States, in the present emergency, ought rather
to he at home, upholding the- Government against domestic insurrec-
tion, than to be adding to its embarrassments by invoking the exer-
cise of its authority for their special relief in foreign countries."
(Mr. Seward, Sec. of State, to Mr. Judd, min. to Prussia, No. 54,
June 6, 1863, MS. Inst. Prussia, XIV. 3G9.)
In an instruction to Mr. Motley at Vienna, April 21, 1803, Mr. Seward,
referring to tlie case of Mr. Judkiewicz, a native of Austria who came
to tlie United States at the age of 13, and ten years later, having
become a naturalized citizen, " returned to Austria for permanent or
temporary residence," said: "The claim of exemption from military
service in such cases lias been constantly insisted ui)on by the United
States, and as constantly resisted by the European states concerned. . .
The United States found it necessary to resort to conscription for its
own military service. The naturalized citizens generally were neither
disloyal nor patriotic, but many of them sought escape from military
duty here, under the influence of the same motives which had induced
them to seek immunity from similar service in their native country,
by acquiring tlie i)rivileges of American citizenship. Thus the Gov-
ernment found itself committed, in an extreme conjunction of public
affairs, to perplexing controversies with foreign jiowers, in resisting,
on the one liand, their claims for the exemption from our military
service of persons who appealed to their protection, and, on the other,
tlie enforcing of claims for the exemption of a like class from mili-
tary service in foreign countries, on the ground of their having ac-
quired the rights of citizenship in the United States. The President
has decided that it is not expedient to urge ((uestions of the latter
sort in the present crisis beyond the limits of appeal to the good will
and friendly disposition of foreign powers. We ought to discourage
rather than encourage, so far as i>ossible, the return of naturalized
foreigners, as well as the emigration of our own citizens to Europe."
(Mr. Seward, Sec. of State, to Mr. Motley, min.'to Austria. April 21,
1803, MS. Inst. Austria, I. 180.)
The subject of " the right of a foreign government to require military
service from such of its subjects as may have become naturalized citi-
§-139.] EXPATRIATION. 579
zens of the United States, is still in controversy, and i>ending its set-
tlement this Department could not properly do more in a" case like
your own than request the Rood offices of the diplomatic representa-
tive of the TJnited States at Berlin in your behalf." (:^Ir. F. W.
Seward. Assist. Sec. of State, to Mr. Kahle, May 22, 18()(j, 7.S MS.
Dom. Let. 141.) •
See, to the same effect, Mr. Seward, Sec. of State, to Mr. Leerl»urger,
March 28, 1800, 72 MS. Dom. Let. 870; to Mr. Markwell. March 30,
1800, id. 880; to Mr. Hermann, April 11, 1800. id. 407; to Mr. Ball,
June 4, 1800, 73 id. 214 ; to Mr. Maidhof, April 10, 1807, 70 id. 9.
(0) ACT OF 1808.
§ 439.
Early in 1866 the United States consul at Dublin transmitted to
the Department of State a correspondence in relation to a number
of naturalized citizens of the Uni£ed States who had been arrested
and thrown into prison. It appeared by the correspoudence that the
lord lieutenant of Ireland had declined to recognize the interi)ositi()n
of the consul with respect to persons who were ()ri<^inally British
subjects, on the ground that they nuist still be regarded as such.
Mr. SeAvard, referring to this statement, observed that there was a
conflict between the laws of (Ireat Britain and those of the United
States with regard to the eft'ect of naturalization, Oreat Britain
declining to concede that a native British subject could divest himself
of his allegiance by renouncing it, while the United States had main-
tained that the process of naturalizaticm completely absolved tlie
person from his former allegiance, and invested him '' with the right
equally Avith native-born citizens to such ])rotecti()n and care of the
Government of the United States as it can, in conformity with
treaties and the law of nations, extend over him, wherever he may
sojourn, whether in the land of his nativity or in any other foreign
country." The conflict, when once practically raisinl, could, said
Mr. Seward, find a friendly adjustment only by concession, in the
form of a treaty or of nnitual legislation, or of some form of arbitra-
ment. The answer of the lord lieutenant, if it should be adopted by
Her Majesty's Government, "" nnist bring the (juestion up for innne-
diate solution." Among the naturalized citizens of the United States,
in regard to whom the discrimination had been made, were some who
had borne arms in defence of the United States during the Civil War.
Her Majesty's (iovermnent could conceive '* how impossible it would
be for the (iovei'nment of the United States to agree to a denial or
abridgement of their right to extend to them the same natural j)ro-
tection and care which the United States extend to native-born
citizens of the United States in similar cases,"
Mr. Seward, Sec. of State, to Mr. Adams, niin. to Kngland, .March 22,
1800, Dip. Cor. 1800, I. 80.
580 NATIONALITY. [§ 439.
The foregoing cases grew out of tlie Fenian movement. In conse-
quence of the arrest of naturalized American citizens on charges con-
nected with this movement, the question of ex})atriation assumed an
acute form. Among the numerous cases arising at that time, the
most notable one, historically, is that of Warren and Costello, two
naturalized American citizens who were tried and sentenced in Dub-
lin, in 1807, for treason-felony, on account of participation in the
Jacniel expedition. It was shown that they had come over to Ireland
in that vessel and had cruised along the coast for the purpose of effect-
ing a landing of men and arms, in order to raise an insurrection. At
their trial they claimed, as American citizens, a jury de medietate
lingua'^ which was then allowed by the English law to aliens. The
denuind was refused on the ground of their original British alle-
giance. This incident, together with others, produced an excitement
that, as Mr. Seward stated, extended " throughout the whole coun-
try, from Portland to San Francisco and from St. Paul to Pensacola."
The subject w^as discussed in Congress, and exhaustive reports were
made both in the Senate and in the House of Representatives on the
subject of expatriation. The cause of the advocates of the right of
voluntary expatriation Avas greatly strengthened by the conclusion
by Mr. Bancroft, February 22, 18(>8, of the convention with the North
German Union, by which the naturalization of German subjects in the
United States, after an uninterrupted residence of five years, was
recognized. By an act of July 27, 18(i8, Congress declared " the right
of expatriation " to be " an inherent right of all people," and pro-
nounced " any declaration, instruction, opinion, order, or decision of
any officers of this Government which denies, i-estricts, impairs, or
questions the right of expatriation " to be " inconsistent with the
fundamental j^rinciples of this Government." It was further de-
clared that naturalized citizens of the United States should, while
abroad, be entitled to receive from the United States " the same pro-
tection of persons and property that is accorded to native-born citizens
in like situations and circumstances." It was, moreover, declared that,
whenever it should be made known to the President that any citizen
of the United States had been unjustly deprived of his liberty by or
under the authority of any foreign government, it should be the Presi-
dent's duty forthwith to demand of such government the reasons for
the imprisonment, and, if it appeared to be wrongful and in viola-
tion of the rights of American citizenship, forthwith to demand the
release of such citizen, and, if the release was unreasonably delayed
or refused, to use such means not amounting to acts of war as might
be necessary and proper to obtain such release, and then, as soon as
practicable, to communicate all the facts and proceedings to Con-
gress.
§440.] T^.XPATRIATTOK. 581
Act of July 27, 1868, 15 Stat. 223 ; Revised Statutes. §§ 1900, 2000, 2001.
For correspondence concerning the cases of Warren and Costello, as well
as other cases of American citizens arrested in Ireland, see message
of February 10, 1868, II. Ex. Doc. 157, 40 Cong. 2 sess., and also the
papers published in Dip. Cor., 1866, vol. I. See, also, Moore's
American Diplomacy, 183-188.
As to the interest excited by the arrests iibove referred to, see Mr.
Seward, Sec. of State, to Mr. Adams, min. to England. Jan. 13,
1868, II. Ex. Doc. 157, 40 Cong. 2 sess. 208, and Mr. Seward. Sec. uf
State, to Mr. Thornton, Brit, min., private, June 0, 18(58, MS. Notes
to Great Britain, XIV. 350.
In an instruction to Mr. Johnson. July 20, 1868, with reference to nego-
tiations for the adjustment of various questions between the two
countries, Mr. Seward said: "The so-called naturalization (piestion
is the one which tirst and most urgently reciuires attention. The
political institutions of the United States may in one sense b(> said
to have for their foundation the principle of the right of individual
men in any country, who are neither accused nor convicted of crime,
to change their homes and allegiance according to the dictates of
their own judgments and consciences and the inspiration of their
individual desires for liberty and happiness. ... As naturalized
citizens of the United States, Irishmen and their descendants have
a right to visit (}reat Britain, and to be safe in their persons and
property there so long as they practice due submission to the au-
thority of Great Britain, the same as native citizens of the Ihiited
States. . . . The British Government announces to us that it is
disposed to remove this embarrassment by accepting the principle
of the validity of our laws of naturalization in regard to British sub-
jects." Mr. Seward suggested the treaties with the (ierman States
as a basis on which to adjust the controversy. (Mr. Seward, Sec.
of State, to Mr. Johnson, min. to England. July 20, 1868, Dip. Cor.,
1868, I. 328, 329.) See, also. Mr. Seward, Sec. of State, to Mr. John-
son, min. to England, No. 20, Sept. 23. 1868. Dip. Cor.. 1868. I. .3.54.
By the act of Parliament. May 14. 1870, any British subject who. when
in any foreign state and not under any disability, voluntarily be-
comes naturalized in such state, ceases to be a British subject and
is regarded as an alien.
As to the right of expatriation, see Jefferson's Works. VII. 7.3; .Tohn
Adam's Works, VII. 174, IX. 31.3, 314. .".21. X. 2,S2.
The declaration in the act of July 27, 186S. that the right of expatriation
is "a natural and inherent right of all i)e()ple," ai>plies to citizens
of the United States who seek to »>xerci.^e it as well as to those of
other countries. (Williams. At.-Gen.. 187;{, 14 Op. 29.5.)
As to the modern l^nglish doctrine concerning exitatriation, see 4 IMiilli-
more. Int. Law (2d ed.). 195; and, as to the terms of natunilization
in various states, see Calvo, Droit International (5th ed. ), II. lib. 8.
(7) SUHSKyi'KNT ST.VIKMKNTS.
ij 410.
"Austria allows no oxcmption from the obliirntion of niilitnrv serv-
ice to persons who have eniiirrated, (^specially those who emiiri-ated
without permission, and near the period at whicli they would have
582 NATIONALITY. [§ 440.
become subject to conscription. Althou^li the release of an American
citizen might be obtained as a matter of fdror, not of admitted rujJit^
he Avould be exposed to arrest, detention, and expense before his
discharge could be obtained."
Mr. E. Peshiiie Smith, Solicitor of the Dept. of State, to Mr. Grauer,
Sept. 8, 1869, 82 MS. Dom. Let. 49.
" Naturalized and native-born citizens are entitled to the same pro-
tection from the Government when in a foreign country; and both
in such case are ordinarily subject to the laws of such country i and
are boiuid to observe such laws to the same extent to which its own
citizens or subjects are bound."
Mr. Fish, See. of State, to Mr. Fox, consul at Trinidad de Cuba, May 3,
18(59, S. Ex. Doc. 108, 41 Cong. 2 sess. 202.
" This Government has insisted upon a distinction between persons
who emigrate to the United States, under a prospective liability
to military service which has not yet matured, and those who emigrate
to avoid a military duty which has been definitely fixed upon them.
In the first case it has maintained that the emigrant after naturali-
zation in this country ought not to be subjected to punishment. Some
of the Continental governments have admitted this distinction, Aus-
tria has not; and the question remains open, in the hoj)e that it may
be solved by treaty. The result is that, if you voluntarily put your-
self within Austrian jurisdiction, this Government can only represent
your case to the consideration of Austria as a matter of comity and
favor. You may possibly be unmolested. If, however, the local
authorities should arrest you, your release may be effected, if at all,
after some detention, inconvenience, and expense, against which it
is impossible to guarantee you."
Mr. Fish. Sec. of State, to Mr. Mintz, Feb. 1, 1870. 8.'} MS. Dom. Let. 211.
" To THE Governor of the Province or :
" H. E. the President of the Republic has been informed that cer-
tain Ecuadorians, bound to this soil by the powerful tie of birth,
have believed themselves to have the right to be registered as for-
eigners by the diplomatic or consular agents resident in the Republic,
consummating this action with the condenmable view of exonerating
themselves from the sacred duty that both nature and law impose
upon them. In consequence, he has been i)leased to declare on this
date, as charged with guarding and having guarded the constitution,
that, being Ecuadorians according to it (art. 5, sec. 1st), those born in
the territory of Ecuador can not lose their character as such, nor by
the same can they become free from the duties to which they find
§ 440.] EXPATRIATION. 583
themselves subject by the home legislation, although with said intent
they inscribe themselves in any book or list of foreigners."
Circular of Mr. Salazar, Miii. of Interior of Et-uador, Sept. 11, l.SOO, en-
closed witli Mr. Winj?, niin. to Ecuador, to :\Ir. Fisb, Sec. of State,
No. 81, Feb. 28, 1871, 9 MS. Desp. Ecuador.
" With regard to the provisions of the circular, it is deemed expe-
dient to state that so far as the title to protection of soi-disant Ameri-
can citizens rests only on their being registered at the legation or :i
consulate, we need not object to the Ecuadorian (iovernment regard-
ing such record as inconclusive. On the other hand, we can not admit
that the rights of bona fide citizens, under international law and
treaties, can be prejudiced by an Executive decree or even a more
authoritative form of legislation."
Mr. Fish, Sec. of State, to Mr. Wing, min. to Ecuador, April li). 1S71,
MS. Inst. Ecuador, I. 270.
With reference to the statement of Chief Justice Marshali. 2
Cranch, 119, that the situation of an alien "• is completely changed
where, by his own act, he has made himself the subject of a foreign
power," and that such an act " certainly })laces him out of the pro-
tection of the United States while within the territory of the sover-
eign to whom he has sworn allegiance," Mr. Fish said: '"It seems
to this Department that the individual right of expatriation which
was thus referred to by Chief Justice Marshall is recognized by that
clause of the fourteenth amendment to the Constitution which makes
subjection to the jurisdiction of the United States an element of citi-
zenship. This conclusion is strengthened by the simultaneous action
of Congress." The " sinudtaneous action " of Congress, as ex])lained
by Mr. Fish, comprised (1) the passage of the amendment by Con-
gress, June 1(), 18()('), (2) Mr. Seward's official announcement that tlie
amendment had been ratified, July 20, 1S()S. and.(;5) the i)iissage by
Congress of the act declaring ex])atriati()n to be "a natural and in-
herent right of all people," July '1~. 1S()S.
Mr. Fish, Sec. of State, to IMr. Wiishburne. min. to France. .Iunt> 2S, 1S7:>,
For. Kel. 187;?. I. 2.".(). 2.17.
"When an alien applies to be admitted to citizenship in this
country, having imdergone the i)robati<)n, and in all other res|)ects
complied with the laws on the sul)je<-t of naturalization, and in ojxmi
court solenndy avows his allegiance to the United States, and with
the same solemnity renounces his allegiance to every other (Jovern-
ment, and especially to that of the country of his birth, and is
found to be of good moral charactei'. he is admitted to such citizen-
ship; and is thenceforth clothed and invested with the same rights
584 NATIONALITY. [§ 440.
and privileges that pertain to native citizens of the country, and
entitled to the same degree of protection, whether al road or at home."'
Mr. Frelinghuyseu, Sec. of State, to Mr. Cranior, inlu. to Switzerland, July
28, 1883, MS. Inst. Switz. II. 187.
" This Government recognizes neither by its laws nor its practice
any distinction between a native and a naturalized citizen. Both are
alike entitled to the protection of the Government, abroad as well as
at home, and each has such protection extended to him in the same
measure under proper conditions. Each case must of course rest on
its own facts and circumstances."
Mr. Frelinghuysen, StK*. of State, to Mr. Ix)well, luin. to England, Feb.
27, 1884, For. Rel. 1884, 210, 218.
"Questions concerning our citizens in Turkey may be affected by
the Porte's non-acquiescence in the right of expatriation and by the
imposition of religious tests as a condition of residence, in which this
Government can not concur. The United States must hold, in their
intercourse with every power, that the status of their citizens is to be
respected and equal civil privileges accorded to them without regard
to creed, and affected by no considerations save those growing out of
domiciliary return to the land of original allegiance, or of unfulfilled
personal obligations which may survive, under municipal laws, after
such voluntary return."
President Cleveland, annual message, Dec. 8, 1885, For. Rel. 1885, xiv.
" This Government, maintaining the doctrine of voluntary expa-
triation, has always held that its citizens are free to divest themselves
of their allegiance by emigration and other acts manifesting an inten-
tion to do so. Mere residence abroad is not, however, construed as an
abandonment of allegiance. It is only when such residence is accom-
panied by acts inconsistent with allegiance to the United States or
indicative of an intention to abandon it, that this Government holds
it to have been renounced.
" This doctrine applies as well to native-born as to naturalized
citizens, and als6 to children born out of the limits and jurisdiction of
the United States whose fathers were, at the time of the birth of such
children, citizens of the United States. But the laws of the United
States declare that the rights of citizenship shall not descend to
children born out of the country, whose fathers never resided in the
United States."
Mr. Bayard, Sec. of State, to Col. Frey, Swiss min.. May 20, 1887, MS.
Notes to Switz. I. 158.
§ 440.] expatrtatton. 585
" Questions continue to arise in our relations witli several countries
in respect to the rights of naturalized citizens. Especially is this the
case with France, Italy, Russia, and Turkey, and to a less extent with
Switzerland. From time to time earnest efforts have hcen made to
regulate this subject by conventions with those countries. An im-
proper use of naturalization should not be permitted, but it is most
important that those who have beeri duly naturalized should every-
where be accorded recognition of the rights pertaining to the citizen-
ship of the country of their adoption. The api)i-o[)riateness of special
conventions for that purpose is ivcognized in treaties which this
Government has concluded with a munber of European states, and it
is advisable that the difficulties Avhich now arise in our relations with
other countries on the same subject should be similarly adjusted."
President Harrison, annual message. Doc. :>, ISSO. For. Kcl. 1S,S'.», viii.
" The resolution [of the Senate, Jan. 1(>, ISOfi], further inciuires:
" ' Whether naturalized citizens of the United States of Armenian
birth have the same rights and protection in that country as have
naturalized citizens of Great Britain, France, (lermany. or Russia.'
"As to this, the privilege claimed by the Government of the United
States for such citizens by naturalization in the country of origin is
greater than that claimed by any one of the four Governments named.
A very general rule among (jovernments of the P^uropean continent,
and one which obtains in principle with respect to (ii-eat Britain also,
is that no alien may be admitted to become a citizen of the state by
naturalization except upon production of proof that his change of
allegiance is permitted by the sovereign of whom he is already a
dependent.
" In the case of Cireat Britain this rule is somewhat dill'erently
applied. The British statute of naturalization prescribes that the
naturalization of an alien shall be without force and etl'ect should he
return to the country of his original allegiance, unless by the laws
thereof or by treaty between that country and (Jreat Bi-itaiu his
change of status is recognized, and an indorsement in the language of
the naturalization act is made upon all British passports issued to
aliens as follows:
"•'This passport is granted with the (jualificalion that the bearer
shall not, when within the limits of the foreign state of whidi he wa<
a subject previously to ()l)taining his certificate of naturalization, 'h'
deemed a British subject, unless he has ceased to be a subject of that
state in jjursuance of the laws thereof or in pursuance of a treaty
to that effect.'
"The United States minister at Constantinoi)le has lioreiofore
reported that naturalized Armenian or other Turkish subject>of (Jreat
Britain, France, Germany, or Russia returning to the jurisdiction of
586 NATTONALTTY. [§441.
Turkey are not claimed by their adopted Governments as citizens,
nor protected as such, except upon proof that their change of alle-
giance has been permitted, or is recognized, l)y the Government of
Turkey."
Report of Mr. Olney, Sec. of State, to the President, .Tan. 22, 181M3, S. Doc.
83, 54 Cong., 1 sess. ; For. Uel. 1805, II. 1471. 1473.
" Our statutes do not allow this Government to admit any distinc-
tion between the treatment of native and naturalized Americans
abroad, so that ceaseless controversy arises in cases where persons
owing in the eye of international law a dual allegiance are prevented
from entering Turkey or are expelled after entrance. Our law in
this regard contrasts with that of the European States. The British
act, for instance, does not claim effect for the naturalization of an
alien in the event of his return to his native country, unless the change
be recognized by the law of that country or stipulated by treaty
between it and the naturalizing State,"
President McKinley, annual message, Dec. 5, 1899, For. Rel. 1899, xxxi.
See Moore's American Diplomacy, 191-192.
The Department of State does not issue certificates of renuncia-
tion of citizenship to Americans wdio wish to abjure their allegiance
and adopt that of another power. " It recognizes their right to do
so in time of peace, and does not issue to them a certificate of its
consent, none such being provided for by our law^s."
Mr. Loomis, Acting Sec. of State, to Mr. Ilengelmuller, Austro-riungarian
ambass., No. 49, Dec. 23, 1903, For. Rel. 1903, 20.
4. Law of Particulab Countries.
(1) CHINA.
§441.
" Your communication of the 17th ultimo, containing an inclosure
of a translation of section cclv. of the penal code of China, as trans-
lated by Sir George Thomas Staunton, and inquiring ' whether the
same correctly represents the law, and Avhether it is now understood to
l>e in force in all or any part of the dominions of His Imperial
Majesty,' was duly received, and I have the honor to say in reply that
section cclv. of the Chinese penal code referred to has no reference
whatever to Chinese emigration as contemplated in and sanctioned by
the Burlingame treaty. Under the general head of ' Renunciation of
allegiance,' the specific acts so carefully defined, with their corre-
sponding punishments, point to the presumptive existence of a lesser
or greater degree of treasonable intent against the Government, and
§ 441.] EXPATRIATION : LAW OF CHINA. 587
it contemplates conspiracies and overt acts of rebellion against the
Government as being the logical se<iuence of 'renunciation of alle-
giance,' which antecedes them both in time and existence; hence their
classification under that head or section. Emigration, as sanctioned
by foreign treaties, is taken out of the category of treasonable acts,
and is therefore beyond the scope of the section.
" In Article V. of the Burlingame treaty we find this language,
which is conclusive on this point : ' The United vStates of America
and the I'Cmperor of China cordially recognize the inherent and
inalienable right of man to change his home and allegiaucc' "
Ml'. Yung Wing, Chinese niin.. to Mr. Evarts, Sec. of State, March 2, 1S80,
For. Rel. 1880, 302.
The transhition referred to reads as follows :
"All persons renonncing their country and allegiance, or devising the
means thereof, shall he heheaded ; and in the punishment of this
offense no distinction shall he made hetween i)rincipals and acces-
sories.
"The property of all such criminals shall he confiscated, and their wives
and children distrilnited as slaves to the great oHicers of state. Tho.se
females, however, with whom a marriage had not heen completed,
though adjusted hy contract, shall not suffer under this law ; from the
IHjnalties of this law, exception shall also he made in favor of all such
daughters of criminals as shall have heen married into other families.
The parents, grandparents, hrothers, and grandchildren of such crim-
inals, whether hahitually living with them under the same roof or
not, shall he perpetually hanished to the distance of 2.(M)0 li.
" All those who purposely conceal and connive at the perpetration of this
crime shall he strangled.
"Those who inform against and hring to justice criminals of this descrip-
tion shall he rewarded with the whole of their property.
"Those who are privy to the i)erpetration of this crime and yet omit to
give any notice or information tliereof to the magistrates shall he
punished with 100 hlows, and hanisiied perpetually to the distance of
:i,fKK> li.
"If the crime is contrived, hut not executed, the princii»al shall he stran-
gled and all the accessories shall each of tlK>m he i)unislied with loo
hlows and perpetual hanishment to the distance of ."..ooo //.
"If those who are ])rivy to such ineffective contrivance do not give due
notice and information thereof to the magistrate's, they shall he pun-
ished with 1(K) hlows and hanished for three years.
"All persons who refuse to surrender themselvt's to the magistrates when
recpiired. and seek concealment in mountains and desert places in
order to evade either the performance of their duty or the puMishmcnt
due to their crimes, shall he held guilty of an intent to rel>el. .ukI
shall therefore suffer punishment in the manner hy this law pro-
vided. If such jiersoiis have recourse to violence and (U'fend them-
selves when pursiied, hy force of jirms. they shall he held giiilty of an
overt act of rehellion, and punished accordingly." (Id. 301.)
588 NATIONALITY. [§ 442.
(2) FRANCE.
§ 442.
" It is understood that the Frencli Government claims military
service from all natives of France who may be found within its juris-
diction. Your naturalization in this country will not exempt you
from that claim if you should voluntai-ily repair thither.""
Mr. Cass. Sec. of State, to Mr. Le Clerc, May 17, 1859, 50 MS. Doin. Let.
318.
" With France, our ancient and powerful ally, our relations con-
tinue to be of the most friendly character. A decision has recently
been made by a French judicial tribunal, with the approbation of the
Imperial Government, which can not fail to foster the sentiments of
nuitual regard which have so long existed between the two countries.
Under the French law no one can serve in tlie armies of France unless
he be a French citizen. The law of France recognizing the natural
I'iglit of expatriation, it follows as a necessary consequence that a
Frenchuuin, by the fact of having become a citizen of, the United
States has changed his allegiance and has lost his native character.
He can not, therefore, be compelled to serve in the French armies
in case he should return to his native country. These principles
were announced in 1852 by the French minister of war, and in two
late cases have been confirmed by the French judiciary. In these,
two natives of France have been discharged from the French army
because they had become American citizens. To employ the language
of our present minister to France, who has rendei'ed good service on
this occasion, ' I do not think our French naturalized fellow-citizens
will hereafter experience much annoyance on this subject.' "
Pre.sident Buchanan, annual message, Dec. ',i, 18()0, Richardson's Messages
and I'apers, V. G4().
This jjassage rehited to the cases of Mr. Puyoon and Mr. Zeiter, who were,
respectively, discharged by judicial tribunals, at Toulouse and Wes-
senbourg, from military service, on the ground of their naturaliza-
tion in the Unitetl States. (Mr. Cass, Sec. of State, to Mr. Faulkner,
niin. to France, Oct. .'{, 18U0, MS. Inst. France, XV. 487.)
" Although French tribunals have, within the last few years, fully
recognized in several cases the legal efficacy which this Government
claims for an act of naturalization accorded by the laws of the United
States, still the expensive and protracted ordeal through which the
laws of France require a luituralized American citizen of French
birth to pass, in order to establish the fact of his nationality, is a
grievance to which such natives of France are liable to be subjected
upon returning to that country, and, if so subjected, would have to
§ 442.] EXPATRIATION : LAW OF FRANCE. 589
be borne by them, notwithstanding the interposition of this (iovern-
nient in their behalf."
Mr. Seward, Sec. of State, to Mr. Monton, Feb. 24, 1862, 5(5 MS. Doui. Let.
403.
" In those papers [dispatches, No. 80-2, April 13, and Xo. 803,
April 14, 1866] you have given us an account of your intervention
in the cases of George Schneider, J. Baptiste Cochener, Francois
Pierre, and Frederick Lodry, severally. Each of those persons,
though a native of France, was naturalized in the United States, and
two of them served in our military forces during the recent war.
Each of them having returned to France bearing a pass])ort of tliis
Government was arrested, cast into prison, and detained a painful
period, awaiting trial for ' refractoriness ' against conscription as a
crime against the [civil] laws of the empire. . . .
" In regard to the general subject of the dishonor in France of our
passports of naturalized citizens, the President thinks it desirable
that you should solicit a conference Avith Mr. Drouyn de Lhuys.
" In such a conference you may say to him that we apj)reciate the
difficulties and the delicacy of a conflict between innnunities demanded
by the passport and the laws of military conscription. We have;
encountered the embarrassment of that conflict in our late civil war.
The result of our late experience is that a foreign pass|)()rt may be
safely taken as furnishing presumptive evidence of a title to exemp-
tion from military service, so long at least as the government wliich
grants the passport shall be found to be acting in good faith and in
conformity with the law of nations.
" 2d. That when a person rei)resenting himself to be an alien, and
whether producing a passport or not, is c()nscri])ted. lie shall be at
liberty to present his claim, with evidence in its suppoi't to a com-
petent military tribunal, by which the case shall be heard summarily.
A discharge by such military tribunal to be final. If, on the contra iw,
the claim of an alien is overruled by the military tribunal, then the
discharge, with the facts relative to the case shall be i-eniitted to the
minister of state charged with the conduct of foi'eigii affairs.
"At every stage of the case the representatives of the nation whose
protection is invoked are allowed to intervene. If the depai-tment of
foreign affairs decides the claim of alienage to be well taken, the
conscrii)t is innnediately released. If, on the conti'ary, the claim of
alienage is denied by that dei)artinent. then it becomes a subject of
diplomatic discussion.
''A considerable ])i-oporti()n of the inhabitants of the Fnitcd Stat(>s
are foreigners, eitlier naturalized or unnaturalized. They canH> to us
from all the nations of Eui-ojx'. as well as from .VuKM'ican >tat(>s. A\ e
raised in four years not altogether without conscription armies
6^)0 • NATIONALITY. [§442.
iiii})arallolecl in imnierical force, yet cases of injustice and hardship,
resuhinp from the denial of justice on the plea of alienage, are
believed to have been very rare.
" You will submit to Mr. Drouyn de Lhuys in a friendly manner
and spirit, the question whether it may not be found practicable to
make some modification of the imperial military laws in conformity
with thei^ie suggestions.
"All the vigor of invention, all the resources of commerce, and all
the influences of civilization combine to stimulate intercourse between
citizens and subjects of friendly states. Care ought to be taken by
every government not to obstruct this intercourse unnecessarily, or to
suffer occasions for the wounding of national sensibilities to arise,
where they can be prevented.
" I feel sure that the enlightened Government of France will concur
in these sentiments."
Mr. Seward, Sec. of State, to Mr. Bigolow, inin. to France, May 7, 1866,
MS. Inst. France, XVII. 5(J8 ; Dip. Cor. 18(;('., I. 'MH.
For Mr. Bigelow's Nos. 302 and 303, see Dip. Cor. 1860, I. 291, 297.
" I have received your letter of the 11th instant, and have to state
in reply that the subject of the right of naturalized citizens of the
United States to exemption from military proscription in the coun-
tries of their birth, is the subject of correspondence; and until some
arrangement upon principles on the subject shall have been arrived
at, the only thing the United States Government can do in the way of
inter])osition is to direct its diplomatic agents to exert, their good
offices in such cases when they occur. France is an exception to this
condition of things, and it is only necessary for a Frenchman who
has been fxlJy naturalized in the United States, on his return to
France to report at once to the mairie of the district in which hi.s
name is enrolled, producing his evidences of nationality and ask to
have his name erased from the conscription list, when, according to
the laws of France, he is exempt from military service."
Mr. Seward, Sec. of State, to Mr. Theirnecit, July 20, 1866, 73 MS. Dom.
Let. 4(55.
" Your letter of the 11th instant, inquiring whetlier after a residence of
fifteen years in the United States and a compliance with its naturali-
zation laws, you can be held to perform military service in France,
has been received. The United States (Jovernment cannot give you
any guaranty of i)rotection from tlie laws of France, if you should
return to that country. For furtlicr information ui»on this sul)ject,
I am ()l)Iiged to refer you to your l<»gal adviser or to any gentleman
of the law, who can give more tim<> to the examination of your ques-
tion than my engagements will jtermit.'' (Mr. Seward. Sec. of State,
to Mr. Specht, Jan. 22, lS(i7, 7.') MS. Dom. Let. 130.)
" In his message at the opening of Congress in December last, the Presi-
dent stated that France had been forliearing in enforcing the doctrine
of i)erpetual allegiance." (^Ir. Seward, Sec. of State, to Mr. Allison,
M. C. March 19. 1867, 7o MS. Dom. Let. 440.)
§442.] expatriation: law of France. 591
"Although we have no naturalization treaty with France, that
Government has manifested a disposition to deal liberally with those
who, like yourself, have incurred the penalties of lier military laws
and have since become hona fide citizens of the United States.
" Should you visit France, provided with proper proof of your
American citizenship, it is believed that the only troul)le. if any. to
which you might possibly be subjected, would be detention awaiting
a judicial investigation of your case, w^ith perhaps the imposition of
a small fine. It is proper to add, however, that, in the event of your
arrest and detention under the circumstances referred to, this (lov-
.ernment would not feel itself under an obligation to do more than
interpose its good offices in your behalf.''
IVIr. Fish, Sec. of State, to Mr. liafevbre, April 3, 1800, 8() MS. IK)in.
Let. 531.
" It is understood to be a provision of the law of France that when
a P'renchman has lost his ({uality of French citizen he cannot serve in
the armies of that country, and that Avhen that (juality has been lost
for over three years he will not be punished for ' insoumission.'
These questions, however, have to be determined in a ci^il court in
France, and it should be remembered that during their pendency the
party is liable to arrest, detention, and, it may l)e, imprisonment,
besides the exi)ense of employing counsel.
'■ In a recent dispatch from Mr. Washburn(>, our minister at Paris,
it is stated that naturalized citizens of the United States l)()rii in
France, upon returning to the j)lace of their birth have l)een of late
sometimes subjected ttKgreat iriconvenience and expense on account of
claims of the nature alluded to for their military service.
" The Department cannot, in view of these facts, give any advice to
jiersons situated as your sons are, upon the propriety or otherwise of
their subjecting themselves to such possible annoyances and incon-
veniences by visiting France. On these (juestions the ]:»arty must
judge for himself, wath the knowledge that he personally assumes the
risk and responsibility of such exj)enses and inconveniences as he may
thereby be subjected to."'
Mr. Fisli, See. of State, to Mr. .louffret, Fei). 11. 1ST4. loi MS. Doiii.
Let. 201.
To the same effect is Mr. Fish. Sec. of State, to Mr. I'intanl. Feb. VI.
1874. 101 MS. Doiu. Let. m:\.
See Mr. Ihuiter. Act. S»>c. of State, to Mr. M.m.v. Dec. U7. INT."). Ill
MS. Dom. Let. li.T).
Alfred P. Jacob was born in the United States, July 10. is:>s, of
French parents. His father registered him in a French consulate as a
Frenchman, but afterwards, when .Vlfred was seventeen year-^ of age,
592 NATIONALITY. [§ 442.
becaino a naturalized citizen of the United States. In 1871), Alfred, who
was then nineteen yt'arsof a^e, and had not l)efore been in French jnr-
isdiction, went to France, inten(lin<j: to remain abroad a few years. In
France he was drafted into the army. He applied to the American
legation, but its interposition was in vain, and he served four years
in the French army, after w'hich he returned to the United States.
After his return he invoked the interposition of the Department of
State to have his name stricken from the French military rolls, as he
desired to avoid further trouble in France in the event of his return
to that country. The French Government, w'hen the case w'as sub-
mitted to it in 1879, had replied that the personal status of the young
man, who was born in the United States before his father had ob-
tained American naturalization, was not, according to French juris-
prudence, modified by the change of his father's nationality, and that
the minister of war, therefore, found it impossible to relieve him from
the military obligations incumbent on all individuals who had not lost
their French quality by one of the modes prescribed by the civil
code. It Avas added that questions of nationality belonged, besides,
exclusively to the courts, and that. Mr. Jacob should lay before the
competent jurisdiction such reasons as he might have for no longer
considering himself a Frenchman.
This reply was reaffirmed by the French (xovernment in 1884, with
the qualification that, as Mr. »Jacob had performed his active military
service, the minister of war would give his support by a favorable
note to any application which he might address to the minister of
justice, should he apply for permission to change his allegiance. In
this relation, the French foreign office said : "According to the terms
of article 10 of our civil code, Alfred Jacob is French, as having
been born of a Frenchman in a foreign country. . . . Our leg-
islation does not admit in fact, like that of the United States, that
the naturalization of the father ap})lies to his children born before
the naturalization, no one in France having the right, by his act
alone, to modify the status and qualifications of others. Mr. x\lfred
Jacob is, then, French in our view, and he remains, in France, sub-
mitted to the obligations of the reserve and territorial army set forth
by article 37 of the huv of the 27th July, 1872."
Mr. Frelliighuysen, See. of State, to Mr. Morton, inln. to France, No. 436,
Jan. 21, 1884; Mr. Morton to Mr. P'relinghuysen, No. 494, Feb. 5,
1884 ; Mr. Frelinglmyson to Mr. Morton, iMarcli 18, 1884 ; Mr. Morton
to Mr. FroliuKlniysen, May 0. 1884: E^or. Rel. 1884, 135, 130. 145, 148,
150.
See, also. For. Kol. 1888, I. 543, 55(», reaHirniing the i)revious French
position in this case.
"By the French code all Frenclinien who become citizens of another
country by the laws thereof thereby lose their French citizenship.
This Department, however, cannot give Mr. Vaudoit any assurance
§ 442.] EXPATRIATION : LAW OF FRANCE. 593
in advance against arrests or otlier annoyances to whicii lie niiglit
possibly be subjected in France in case of his return to that country,
nor can it advise him as to the expediency or i)ropriety of such
return. This must be left to his own judgment. Sliouid lie, however,
conclude to return to France, and while there be arrested or held on
account of previous military occupations, this Government would
extend to him all the protection which as an American citizen he may
be found, under the circumstances, entitled to." (Mr. Frelinghuysen,
Sec. of State, to Mr. Brents, Jan. 24, 1884, 14!t MS. Dom. Let. 481.)
John B. Foichat was born in France, January 4, 1858. In 1870,
at the age of seventeen, he came to the United States, whore, in 1883,
he was admitted to citizenship. In August, 1883, he obtained a
passport and went to France, arriving there in the following month.
In November, 1884, he was arrested on the charge of having failed to
report for military service. He protested and, exhibiting his nat-
uralization papers and passport, demanded that he be released. He
was kept, however, two days and three nights in the military prison
at Chamberry, and was then handcuffed and taken to the military
prison at Grenoble to be tried by court-martial. He was detained at
Grenoble four days, when he was released through the efforts of the
United States consul at Lyons. March 25, 1884, the American min-
ister at Paris was instructed to look into the case and, if the facts
were found to be as stated, to present it to the minister of foreign
afl^iirs, with an earnest request that it might receive early and just
consideration and that a reasonable pecuniary indenniity might be
paid. The French Government admitted that the facts were sub-
stantially as stated, but denied that they entitled the claimant to
any compensation. In a note to the American legation, October 22,
1884, M. Ferry, minister of foreign affairs, said that Foichat was
.arrested on the charge of //^SY>///;^/.s^svV)/^ and added: " Upon prin('ij)le
we have constantW refused to admit that a Frenchman, naturalized
in a foreign country, can be exempted if he returns to France fi-om
being answerable for the offense of insul>mission, when the naturali-
zation has taken place subsequently to the existence of the offence.
You will understand that we cannot abandon this jurisprudence,
which is dictated by a question of public order of a most im})ortant
character, and against which the Government of the United States
would be all the less founded in protesting, as it is in conformity
with one of the principal provisions which appear in the treaties
of naturalization concluded by it with certain powers." M. Ferry
then cited Article II. of the treaty between the Ignited States and
the North German Union of February 22, 18(58, to the ell'ect that a
naturalized citizen remains punishable for offences connnitted prior
to his emigration, subject to the statutes of limitation.
H. Doc. 551— vol 3 38
594 NATIONALITY. [§"^2.
Mr. FrolinKliuyson. See. of Stato. to Mr. Morton, iiiin. to France, No. 477,
March '2~t. 1884; Mr. ViKiiaud. cliarj?*"'. to Mr. Freliiighuysen, No. 651,
Oct. 27. 1884 : For. Hel. 1884, 145, 174.
In a dispatch to Mr. FreUnjjluiysen, No. (>(>5, Nov. ir$, 1884, Mr. Vignaud
makes an extended and interesting report on tlie French law of citi-
zenship, esi)ecially witli regard to military service. The son of
every Fi'endunan, says Mr. Vignand, is registered at th(» place of his
birth if born in France, or at the place of Ins family's residence' if
born abroad, as liable to military service. This registration forms
in each commune a recruiting list, which is drawn up every year by
the mayor, who afterwards sends it to the prefecture of the depart-
ment, whei'e it is combined with all the other lists in a general one,
comprising all men belonging to the department born twenty years
before. When the time comes each person on the list is notified to
present himself at a designated place. If he resides al)road the
notice is served on him through his consul or through members of
his family residing in France. If he fails to report, he is charged
with the offence known to French law as " iusubmission " {innou-
wission), and the police are ordered to arrest him when found. If,
when arrested, he does not resist, he is generally dealt with gently ;
if he resists, he is handcuffed and treated roughly. The police
deliver him to the military authorities as an insoiiuus, and a court
martial proceeds to try him as such. If he pleads that he has
renounced his original nationality, the court martial suspends action
while the defendant appeals to the civil courts. While this appeal
is pending he is usually left at liberty. In the civil court the course
of procedure is by summons to the prefect of the department to
erase the individual named from the recruiting list. On i)roduction
of didy authenticated proofs of foreign nationality, by birth or by
naturjilization, the civil court renders a judgment to the effect that
the defendant, having ceased to be a French citizen, cannot serve in
the French army. The defendant is then sent back to the military
court. His name is erased from the military rolls ; but he is then trietl
for the offence of " insubmission " committed before the rendering of
the judgment that he had lost French nationalit.v. If three years
have elapsed since he was naturalized, he is discharged by limitation.
If such a period has not elai)sed, he is sentenced to a fine or to a few
weeks' or months' imprisomnent, or both, according to the cir-
cumstances. If he has lived a long time abroad, and the circmn-
stances indicate that he expatriated himself in good faitli and not for
the purpose of evading his military obligations, the sentence is made
as light as possible, if not altogether omitted ; but, in the contrary
case, it is made as severe as possible. When, whether i)unished or
not, he is released by the military authorities, he is again turned
over to the civil authorities, who, if he is considered a bona fi<le
foreigner, discharge him, but, in the contrary case, order him to be
expelled. "Nine times out of ten," says Mr. Vignaud, "an order of
expulsion awaits the Frenchman naturalized abroad who ventures
to come to France before having performed his military service.
The interposition of the legation in such cases is useless. The
French Government is very sensitive on this point, and will listen
to no request tending to allow one who has averted military service
by placing himself under a foreign flag to remain unmolested, and
apparently in defiance of the French military laws, in the midst of
§442.] expatriation: law of France. 595
those who are rigorously hehl to obey them. We have occasionally
obtained a short extension of the time allowed for leaving France.
We liave never secured the revocation of an order of expulsion
issued under such circumstances." (For. Kel. 1884, IIO-IT.).)
The information given by Mr. yignalKl is sunnnarized in Mr. Bayard,
Sec. of State, to Mr. Lavigne, April 25, 1885, 155 MS. Dom. Let. 194.
November 9, 188(), Mr. McLane, American minister at Paris, asked
for the discharge of Pierre Arbios, a naturalized American citizen,
who Avas enrolled in the French army. May 5, 1887, he made a simi-
lar demand in behalf of John Fruchier. Both Arbios and Fruchier
emigrated to the United States when minors, and both afterwards
obtained American citizenship, Arbios through the naturalization of
his father, and Fruchier by direct naturalization. On revisiting
France they were arrested and imprisoned and brought before the
military authorities, who put them into the army.
With reference to these cases, Mr. Bayard instructed Mr. McLane,
February 15, 1888, to inform the French (xovernment that the Gov-
ernment of the United States held that a decree of naturalization
granted by it to a French citizen was not oj)en to impeachment by the
French Government, and that if the subjection of Arbios and Fru-
chier to enforced military service was " based upon an assumption
that they are not citizens of the United States, this I)ei)artment asks
for their inmiediate release, and for a proper compensation for the
losses Avliich they have received by such detention." Mr. Bayard fur-
ther stated that it could not be admitted that American citizens '" not
charged with any crime, should be detained under arrest for even a
single day after their proofs of citizenship have been presented. In
cases like this the United States can never admit the pr(){)riety of
submitting to the ordinary delays of judicial action. The redress
which it thus asks the United States Goveruuient, when appealed
to by foreign governments under similar circumstances, has always
promptly given. ... I cannot but think that France, who now
accepts as fully as does the United States those i)rincii)les of liberty
of which the right of expatriation is ])art. will not. in view both of
her past and her present relations to the United States, take a position
conflicting Avith these free ])rincip]es, with the business interests of
both countries, with international comity, and with a system on which
the Government of the United States is based."
M. Goblet, then minister of foreign all'airs. in a note to Mr. McLan(\
April 2(5, 1888, stated that it had '* never occurred to the French au-
thorities to question the value of the act of naturalization by virtue
of which a Frenchman by l)irth has become an American. But you
will agree with me that, if the Government of the Fnited States is, in
fact, the only judge of the conditions under which it grants naturali-
zation to a foreigner, it is the right, on the other hand, of the gov-
596 NATIONALITY. [§ 442.
ernmont undor whoso jurisdiction this foroiffiK'i' i^? and of it alone,
to decide whether the aforesaid foreigner has complied with the law
of his country of origin, for, if consent is, as you very justly remark,
an indispensable element to the validity of the contract conferring
nationality, other conditions can be required as well." M, Ooblet
added, however, that, while entirely reserving the question of prin-
ciple involved, his colleague, the minister of war, had consent<?d, as an
" act of courtesy," to grant leaves of absence to Arbios and Fruchier
till the time of the expiration of the terms of active service which
they, respectively, owed ; and he added that both the minister of war
and himself were quite ready to examine any proposals which might
be presented for the general settlement of such questions between the
two governments.
Mr. Mc'Lane, min. to France, to Mr. Bayard, Sec. of State, Jan. 24,
1888; Mr. Bayard to Mr. McLane, Feb. 15, 1888; Mr. McLane to
Mr. Bayard, April 27, 1888: For. Rel. 1888, I. 502, 510, 530-532.
In the earlier stages of the Arbios case Mr. Bayard wrote to Mr. Mc-
Lane that he must leave to his " good judgment the propriety and
probabilities of success of any furtlier appeal to the French Govern-
ment." (April 30, 18.S7, For. Rel. 1887, 293.)
Aug. 25, 1887, the legation, in reply to an inquiry from the Department
of State as to the condition of the case, reported that, as the in-
structions of the 30th of April were understood to be discretionary,
it was not deemed advisable further to press the case at that time,
since nothing could be gained by so doing. (Mr. Vignaud to Mr.
Bayard, Aug. 25, 1887, For. Kel. 1887, 350.)
" In the absence of conventional agreement as to naturalization, whick
is greatly to be desired, this (Jovernment sees no occasion to recede
from the sound position it has maintained not only with regard to
France but as to all countries with which the ITnited States have
not concluded special treaties." (President Cleveland, annual mes-
sage, Dec. 3, 1888, For. Rel. 1888, I. xili.)
" Your letter of the 15th instant, inquiring whether a naturalized Ameri-
can citizen, born in France, would be subject to military duty in
case he should revisit his native country, has been received.
" In reply. I must inform you that your incpiiry belongs to a class re-
specting which the Department of State refrains from expressing an
authoritative opinion in advance of a case actually arising and
calling for di])lomatic intervention. It may. however, be stated that
the Department's understanding of the general French rule in such
cases is, that when a male child is born in France, the fact is regis-
tered at the place of birth and transmitted to the i>roper prefecture
as of one eventually liable to military duty. On the comi)letion of
the twentieth year the individual is summoned to present himself
at a designated place. If residing abroad, the notice is served on
him through his consul, or through the parents and relations resid-
•ing in France." (Mr. Bayard, Sec. of State, to Mr. Wollner, Oct. 24,
1885, 157 MS. Dom. Let. 442.)
" On the 22d of last March you were kind enough to write me with
a view of obtaining the erasure from the conscription list of our
§ 442.] EXPATRIATION : LAW OF FRANCE. 597
army of the name of Mr. Victor Poidebard, l)orii in Lyons on June
5, 1871, and who became an American citizen through the naturali-
zation of his father in the United States.
" The minister of war, to whom I immediately transmitted your
communication, observes, firstly, that according to the terms of
article 17 of the civil code, modified by the law passed on the "iOth
of June, 1889, a Frenchman still subject to the obligations of active
military service can not lose his French nationality by means of
naturalization in a foreign country unless this naturalization has
been authorized by the French (loverinnent. Under these circuui-
stances the only request that Mr. Poidebard could consistently make
was to ask of the Government of the Republic their authorization
to his becoming a naturalized American,
" Gen. Loizillon thought it his duty to examine carefully this
point in order to see if such a favor could be granted in this s])ecial
case, and he was obliged to realize that such a decision would have
the serious disadvantage of encouraging young Frenchmen to become
naturalized in a foreign country in order to avoid military service,
which would not fail to provoke violent protestation on the part of
those families having relatives in the service.
" Mr. Poidebard, it is true, could have availed himself of the dis-
pensation contained in article 50 of the law of July 15, 1889, on re-
cruiting, by claiming he moved to the United States before the age
of 19, and had not since then made a longer stay in France than three
months; but he failed to claim this dispensation before the court of
revision of the class of 1891, which alone, according to the terms
of article 18 of the aforesaid law, is privileged to act in this respect.
Consequently he is definitely debarred from having recourse to this
channel.
" Under these circumstances my colleague, the minister of war,
charges me to express to you his regrets that he finds himself unable
to reply favorably to your request."
Mr. Develle. French min. of foreign affairs, to Mr. Coolidjjo. ambassador
to France, May 2, 180.3, For. Rel. 180:i, :W1.
Mr. Coolidge stated in the note to which the foro>,'oinsj: was a reply,
that Poidebard had iK'conie a natnrali/.cd citiziMi of the I'nitod States
not only through the natnralization of his father, but also by inde-
pendent admission to eiti/.enshii» after he became of ap*. (Mr.
Coolidge to Mr. Develle, March 22, 181».3, For. Rel. 1S!)3, .3(J0-:3U1.)
Arthur D. ITubinoit, otherwise known as Arthur I). Pennett, a
native of France, was brought, when two years old, to the Fuited
States, where, at the age of '24, he was naturalized. Keturniug then
to France, he was arrested and tried on a charge of lii.sonmiss'Knt.
He was acquitted, but was held still to be French : and, having passed
598 NATIONAI^ITY. [§442.
the age of active military service, he was placed on the list of re-
serves, and permission was given hini to proceed to Pittsfield, Massa-
chusetts, where any military notice would reacli-him. When released
he had, as he stated, spent all his money, and he <lesired to hold the
French Oovernment responsible pecuniarily for his loss of time and
the cost of his return to the United States. The embassy of th<?
United States at I*aris replied that it had, under instructions, re-
quested his discharge by the French (irovernment, but that it could
not, without further instructions, present his pecuniary claim.
" Your response to Mr. Ilubinoit's inquiry was discreet and proper.
It is not recalled that the solicited discharge of an American citizen
from military duty in a foreign country has been followed by a suc-
cessful claim for reparation for actual loss and injury sustained. Cer-
tainly no claim of exemplary damages has been preferred. As a
general thing the interested party is satisfied with his release from
the embarrassing situation in Avhich he had been placed by his inad-
vertent return to his original jurisdiction, and this -is especially so
when there is probable cause for proceedings against him, as in the
present instance, when the naturalization of Mr. Hlibinoit under
another name required somewhat elaborate proof to establish his
asserted identity.
" There have, however, been instances where a foreign government
has graciously compensated a person erroneously detained and re-
leased, for actual loss of time or money, and if the circumstances of
the present case appear, in the judgment of the embassy, to warrant
an informal suggestion to the French Government in this regard, it
is possible that it might be taken into kindly consideration without
formal admission of liability in the premises."
Mr. Sherman, Sec. of State, to Mr. Vignaiul, ohargC' d'affaires ad int., Aug.
32, 1807, For. Rel. 1807, 140.
" I have to acknowledge the receipt of your letter of the 19th
ultimo. It appears from your statement that you were born in
France and when twenty years of age came to the United States;
that your parents, under the obligation imposed by French law
upon parents whose children are absent from France at the period of
drafting for military duty, registered you as a French citizen and you
were drafted; that you remained in the United States, however, tak-
ing steps to become naturalized here, and that you were finally ad-
mitted to citizenship in December, 1889. . . . The Department
understands that the failure of a French citizen to j)erf()rm military
service, after being drafted, constitutes an offence against French
military law. Should you voluntarily ])lace yourself within French
jurisdiction you would be subject to the laws of France. In the
§ 442.] EXPATRIATION : LAW OF FRANCE. 599
absence of a treaty of naturalization between the United States and
France, this Government cannot guarantee innnunity from arrest or
punishment under these laws. Should occasion arise, however, this
Department, through the embassy in Paris, would extend to you any
proper assistance."
Mr. Hay, Sec. of State, to Mr. Darche, March 0, IJXK), 24.3 MS. Doiu.
Let. 360.
Emile Eobin was born in France January 9, 18G9. After he had
served in the active army the full term of three years, he proceeded
to the United States, where he was naturalized March HI, 1901.
Though released from the active service, he was still liable to service
in the reserve in the activ^e army, and therefore, under the law of
June 26, 1889, new art. 17 of the Code, he could not renounce his
French nationality without the consent of the (Government. At his
urgent request the American embassy in Paris applied to the French.
Government for his complete discharge from all military obligations
in France. The P^'rench Government replied : " By the terms of
Article 17 of the Civil Code, if a Frenchman is still subject to tlie
obligations of military service in the active army, naturalization
abroad will not cause him to lose the quality of Frenchman unless it
was authorized by the French Government. As Mr. Robin would
have been transferred to the territorial army only on March 12, 1908,
he was subject to the formality of an authorization when he accpiired
in 1900 his American naturalization. That authorization not having
been applied for, the naturalization acquired in America by Mr. Kol)in
is without value in the eyes of the French Government."
Mr. Delcasso, niin. of foreign affairs, to Mr. Vignaud, l'. S. charfre, Oct.
31, 1001, For. Kel. lltOl, 157.
" It frequently happens that American citizens of French origin
apply for reliable information concerning their jjosition in regard to
the French military and nationality laws. Tn view of such in(|uiries I
send the following report, which nuiy interest the I)('i)ar(inent as well
as enlighten those having any concern in the matter, if il is deemed
advisable to make it public.
"Various conununications from this embassy have acquainled the
Department with the ditt'erent i)rovisi()ns of the French law on nation-
ality of June 20, 1889, which is the only one api)licablc to the cases
now under consideration. T refer particularly to Mr. Reid's No. 2'.>. of
July 10, 1889 (Foreign Relations, 1890, p. 270), and to my Xos. .M:'.. of
April 7, 1892 (Foreign Relations. 1898, p. 29r)), and J7. of Augii-i 22.
1893 (Foreign Relations, 1893. p. 303).
"It is proposed now to inform more fidly the Department with
regard to the official construction of the clause of that law whit-h
600 NATIONALITY. [§ 442.
relates to naturalization in connection with military service and to
the manner it is applied to American citizens of French origin.
"According to that clause, article 17 of the Civil Code is now made
to declare that a Frenchman naturalized abroad does not cease to be
French if he is still subject to military service in the active army,
unless his naturalization was obtained with the consent of the French
Government. Nothing in the law indicates whether this clause is to
be applied to those who had failed to discharge their military obliga-
tions before the law was passed, or simply to those who had committed
that offense after the law was enacted. The language, also, of the law
is not very explicit with regard to what is meant by the ' active army.'
The period of service in that army is only for three years, but from
the active army every Frenchman passes first into the reserve, in
which the period of service is seven years, after which period he is
transferred to the territorial army. Was it to be understood that the
period during which a Frenchman can not renounce French citizen-
ship without the consent of his Government embraced the whole time
during which his military services were due in both the active army
and the reserve of that army ?
" The ruling of the French Government in the cases submitted to its
consideration by this embassy have settled these points, and it is now
possible to state the exact meaning of the law according to the French
Government, and what the position is of a Frenchman naturalized
abroad without the consent of his Government, before having been
discharged from the French active army.
" With regard to the meaning of the law it is understood now :
"(1) That it has a retroactive effect; it applies to those who have
avoided military service and acquired another nationalit}' before as
well as after the law was enacted.
"(2) That the words ' active army ' mean both the active and the
reserve of the active army ; and
"(3) That the expression ' If he is still subject to military service,'
is to be understood as applying to the date at which the naturalization
was obtained.
" Under this construction the law is made to have the following
effect :
" The Frenchman naturalized abroad without the consent of his
Government, who at the date of his naturalization was still subject to
military service in the active army or in the reserve of the active
army, remains French, and as such is amenable to the military laws
of France.
" Not having responded to the notice calling him to accomplish the
three years' military service which every Frenchman has to perform,
he is placed on the list of those charged with insoumission — noncom-
pliance with the national military laws — and if found under the
§442.] EXPATKIATION : LAW OF FRANCE. 601
jurisdiction of France, whatever his age may then be. or whatever tho
number of years he has lived abroad, even if he k>ft France in his
tender infancy, and even if he was born abroad, provided his father
was French at the time, he is arrested and tried as an iiisoiunix^ and
after such trial turned over to the active army or to the reserve of the
active army or to the territorial army, according to his age.
"When a Frenchman has passed the age during whicli lie may be
called to serve in the active army or its reserve — that is to say. when
his name has been transferred from the muster roll of that army to
that of the territorial army — he does not need the consent of his ( lov-
ernment to be lawfully naturalized abroad; and when naturalized
in the United States under such conditions an application from this
embassy secures, without difficulty, the recognition of his American
citizenship, provided this application is accomi)anie(l Ijy the naturali-
zation papers of the person in whose behalf it is made and by an
American passport. The production of the passport is not absohitely
necessary and can be dispensed with, but the original pa])ers of
naturalization or an authentic copy of the same nnist be pnxhiced.
"Before or after his naturalization abroad a Frenchman may ask
his Government its consent to renounce French national character,
but if he is of the age during which active military service is due,
this consent is never given, or given only under very exceptional cir-
cumstances. I do not know of any successful application of that char-
acter. This consent is, on the contrary, usualh' given to those who,
having passed the age of service in the active army and its reserve,
can only be called to do service in the territorial army, although their
naturalization may have taken place while still belonging to the active
army.
"Applications of this kind should be made direct to the minister of
justice by the interested parties and nuist be accompanied by a fee
of 1.T5 francs and by a statement giving all necessary ])articulars
concerning the applicant. When granted it is in the shape of a decree
signed by the President and countersigned by the minister of justice
and another high official. T inclose herewith a copy of (lie form used
in such cases. This decree is then comnnuiicati'd to the minister of
war, who directs that the name of the jx'rson concerned br erased fi'oni
the military lists of the French army, as being uo lougei- Fi-cnch. and
who informs that })erson of his action.
"It is the rule of this embassy to decline making any ai)|)lic:ition
of this kind in behalf of those who are already in possession of thcii-
full American papers of naturalization, as such a step might iuiply
an improper admission on our pai"(. l>ut it does not icfu-c it> gootl
offices to those who desire to secure the consent of their (loxcniuu'ut
before having been naturalized."'
Mr. Vigiiaud. charj,'*' (l':itT:iiivs ;nl int.. to .Mr. SlieniiMii. Si-c of St:ite.
Aug. 2, 1S!»7, For. Kcl. IS!)?. 111.
602 NATIONALITY. [§442.
Form of roniicnt given io a Frenchman In change his allegiance.
ITrunslatioii.]
Ministry of .lustico : The I'rosident of the French Republic on tlie
rei>ort of the keeper of the seals, minister, decrees :
Art. I. M. , born on , at , residing at
, is authorized to become a natui-alized American.
Art. II. The keeper of the seals, minister of justice, is charged
with the execution of this decree, which will i)e published in the
Bulletin of Laws.
Done at I'aris, the .
( Signed ) ( Name of President. )
(Signed) (Name of Minister.)
Tlie Keeper of the (ieah. Minister of Justice.
For exemplification.
The Councillor of State, Director of Civil Affairs and of the
Seal :
(Signature.)
See a list of military cases in France under the law of 1889, For. Rel.
1897, 143 et seq.
As conununicating information concerning the French law, as above
stated, see Mr. Moore, Act. Sec. of State, to Mr. Bossange, July 23,
1898, 230 MS. Dom. Let. ,344; Mr. Hill, Assist. Sec. of State, to Mr.
Piednor, jr., June 30, 1900, 240 MS. Dom. Let. 204.
" The information given below is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
"All Frenchmen who are are not declared unfit or excused may be
called upon for military duty between the ages of 20 and 45 years.
They are obliged to serve three years in the active army, ten in the
reserve of the active army, six in the territorial army, and six in the
reserve of the territorial army.
" If released from all military obligations in France, or if the
authorization of the French Government was obtained beforehand,
naturalization of a former French citizen in the United States is
accepted by the French Government; but a Frenchman naturalized
abroad without the consent of his Government, and wlio at the time
of his naturalization was still subject to military service in the active
army or in the reserve of the active army, is held to be amenable to
the French military laws. Not having responded to the notice calling
him to accomplish his military service, he is phiced on the list of those
charged with noncompliance with the military laws, and if he returns
to France he is liable to arrest, trial, and upon conviction is turned
over to the army, active, reserve, or territorial, according to his age.
Long absence from France and old age do not prevent this action.
"A Frenchman naturalized abroad, after having passed the age of
service in the active army and the reserve, nevertheless continues on
§443.] EXPATRIATION: LAW IN GERMANY. 603
the military list until he has had his name struck from the rolls,
Avhich may usually be done by his sending his naturalization certifi-
cate through the United States embassy to the proper French authori-
ties."
Circular Notice, Department of State, Washington, Jan. 21. UK)1, For.
Rel. 1901, 153.
Article I. of the French law of February T, 1851, provides: '' Every
person born in France of a foreigner who was himself born there, is
a Frenchman, unless within the year which follows the time of his
majority, as fixed by the law of France, he claimed the (iiiaiity of
foreigner by a declaration made either before the numicipal au-
thority of the place of his resideuQe, or before the agents, dii)lonuitic
or consular, accredited to France by the foreign government."
The French law of 1851 continued in force in Alsace-Lorraine till
1873, when the German law of June 1, 1870, was introduced thei-e.
For. Rel. 1880, 320, 325 ; For. Rel. 1887, 380.
But, by the law of 1880, as amended by the law of 1803, " any person
born in France of foreign parents, one of whom was also born there,
is E'rench," subject to the right, if it was his mother who was born
in France, to disclaim his French nationality in the year following
his majority. (Mr. Vignaud, charge, to Mr. (iresham. Sec. of State.
No. 47, Aug. 22, 1893, For. Rel. 1803, 303.)
(3) GKRMANY.
§ 443.
Mr. Pendleton, in a despatch to the Department of State of Feb-
ruary 1, 188G, gave a translation of the (lerman law of June 1. 1870,
concerning the loss and acquisition of nationality in the Xoiih (Jer-
man Confederation and in various States thereof, as follows:
" Section 13. State nationality can be lost henceforth in the fol-
lowing ways only :
"(1) By discharge upon application therefor (sections 14 and fol-
lowing) .
"(2) By decree of the public authority (sections 20 and 22).
"(3) By a residence of ten yeai-s abi'oad (section 21).
"(4) In the case of illegitimate cliildren. the father having another
allegiance than that of the mother, by legitimation effected juirsuant
to the provisions of law.
"(5) In the cast* of a North (Jerman by marriage with a person
having allegiance in another vState of the Confederation, oi- with a
foreigner.
" Sec. 21. North (iermans who leave the ten-itory of the Confeder-
ation and sojourn during a period of ten years uninterruptedly
604 NATIONALITY. [§ 444.
abroad lose thereby their state nationality. The above-designated
l)eri()d is reckoned from the time of the departure from the territory
of the Confederation; or, if the person leaving is in possession of a
passport or home certificate, from the time of the exi)iration of this
paper. It is interrupted by an entry on the files of a consulate of the
Confederation. Its course recommences with the day following the
cancellation of the entry on those files.
* * * * * 4i If
" For North Oermans who sojourn in a foreign state for at least
five years uninterruptedly and at the same time acquire nationality
there, the period of ten years may by treaty be reduced to one of five,
whether or not the persons concerned are in possession of a passport
or home certificate."
This law, as Mr. Pendleton stated, was, by the law of January 8,
1873, made applicable to Alsace-Lorraine.
For. Rel. 188(>, 317, 318.
By section 14 of the law of June 1, 1870, it is provided tliat the discharge
from German nationality is granted by the issue of a discharge
document by the superior administrative authority of the state of
nativity.
Section 15 provides that the discharge shall not be gi*anted till a certifi-
cate is obtained from the circuit recruiting commission (Kreis-Ersatz-
Commission) showing that the discharge is not sought for the sole
pui'pose of evading service in the standing army or navy. (Report
by Mr. Coleman, sec. of leg., For. Rel. 1892, 181.)
( 4 ) GREECE.
§ 444.
" It is presumed that Greece, like most other governments in Con-
tinental Europe, has a mimicipal law requiring military service from
its subjects even when naturalized abroad, unless the claim to that
service shall have been relinquished or modified by treaty. Unfor-
tunately for Mr. Vaccas, as the United States has no such treaty with
Greece, it is not likely that any representation which this (jovern-
ment might make would accomplish the object which you seek [the
release of Mr. Vaccas from arrest on a charge of having evaded mili-
tary service]. And even were this p/obable this Govermnent has
no diplomatic representative at Athens, through an officer of which
character alone could a correspondence lipon the subject be properly
conducted.*"
Mr. Blaine, Sec. of State, to Mr. Wolf, Nov. 28, 1881, 1.39 MS. Dom.
Let 696.
Louis Economopoulos, a native of Greece, emigrated in 1893, in hi.s
IGth year, to the United States, where he was duly naturalized in
August, 1899. In the following month he returned to Greece for a
§ 444.] EXPATRIATION : LAW OF GREECE. • 605
temporary sojourn, as he alleged, on account of the illness of his
father. On his arrival in (ireece he was arrested and put into the
army. The American legation applied for his release, but, as he
had changed his name in America from Leonidas to Louis, the war
office declined to consider the case on the ground of want of proof of
identity. This difficulty having been removed, the foreign office
stated that he could not be released on the ground of his American
naturalizatioiT, since he had not fulfilled the conditions of the Greek
constitution, by which the assent of the King is essential to the relief
of a Greek subject from his obligation."
In reply Mr. Hardy, United States minister at Athens, cited the
following precedents in support of his application:
A. M. Cassimus, born in Greece in 18G2, emigrated to the United
States in 1873, and was naturalized in 1884. Returning in the sjiuk^
year on a visit to Greece, he was arrested and taken to Corfu, where,
on the interposition of the American consular agent, he was, on
proof of citizenship, discharged, and his name erased from the con-
scription rolls.
PI C. Gatechi,'' a native Greek, emigrated in 1872, at the age of 14,
to the United States, and was naturalized in 1879. Returning to
Greece in 18S5 to visit his parents he was conscripted, but on proof
of American naturalization was released. In 1886, his name not
having been stricken from the rolls, he was again arrested, but was re-
leased on the interposition of the consular agent at Corfu. Being
again conscripted in 1890, he was finally discharged on the recpiest of
the American minister at Athens.''
D. N. Vasilatos, who emigrated to the United States in 18S0, and
was naturalized in 1893, revisited Greece in 1897, when, having been
conscripted, he was, on the informal request of the legation, dis-
charged, and his name erased from the rolls.
G. Dragoman, who, after service in the United States Navy, was
naturalized in 1891, was, when arrested at the Piraeus, in 1898, re-
leased on a similar request.
Two other natives of Greece — E. Xanthakos and P. Cutzenis —
naturalized in the United States, were released on the interposition
of the legation, the first in 1895 and the second in 189().''
As the citation of these cases failed to secure a favorable response.
Mr. Hardy invoked, without success, two decisions of tiie I><»gal
Council on Doubtful Administration. June 14, 188(5, which served
as the basis of Catechi's discharge, to the effect that a Greek might
« For. Rel. 1900. 034. («.S. ()40.
6 For the corrcspomlence in the case of Catechi, see For. liel. IsiMt, .".11. 'A'A,
514. 515, 516, 519. 520.
c For. Rel. 189(X 511.
d For. Rel. 1900, 635, 638-639.
006 • NATIONALITY. [§444.
(•him<r(' his iill('<j:ian(v withoul the assent of his sovereign, subject only
to the penahies of inn)risonnient and loss of civil rights prescribed
by the penal code."
The nei)artn»ent of State advised Mr. Hardy that he had done all
tiiat was ])racticable in the absence of a naturalization treaty, and
instructed him to propose to Greece the negotiation of such a treaty.
on the lines of the convention between the United States and Austria-
Hungary.''
The (Jreek (lovernment replied, however, that it could conclude
a convention only on the basis of a communication from the war office,
in which it was declared that, while permission to change allegiance
would be freely granted, it could not be obtained unless the applicant
had " satisfied his military obligations and discharged the duties
which he might eventually incur toward the state;" that the acqui-
sition of foreign nationality in no wise relieved Greek subjects from
military duty, since, if it were otherwise, " anyone who wished to
evade military service in Greece would only have to become natural-
ized abroad;" that whosoever became naturalized abroad without
permission was subject to the penalties of the penal code, and, as to
an^' evasion of military service, to punishment under military law as
a deserter; and that, in order to avoid misunderstandings, it would
be necessary to arrange by an exchange of notes that every Greek
subject desiring to acquire American nationality should deposit with
the American authorities a certified copy of the royal decree authoriz-
ing him to abandon his Greek allegiance."
The United States declined to conclude a convention, unless it
should " recognize the right of the individual to change his allegi-
ance." "*
The Greek Gov^ernment adhered to its position in the case of
Economopoulos, although, in another and similar case, the minister
of foreign affairs forestalled the arrest of the individual by a per-
sonal letter to the local authorities. Mr. Hardy therefore, as stated
by him in a dispatch of Oct. 2, 1900, advised Economopoulos, in
view of the decisions of 1886, to try an appeal to the I^gal Council,
but on account of the expense or for some other reason he did not
a For. Rel. 1900, ()37, r>40-(>41. The minister of foreiRii affairs afterwards
niaintainetl tliat these decisions wore ai)i)lical)le only to the eases in whidi
they were niad(s and establisliecr no general principle, and that they were be-
sides nnconstitntional and rendered liable to impeachment the ministry which
enforced them. (For. Rel. KKXt. (>4(^-C»47.)
6 Mr. Hay, Sec. of State, to Mr. Hardy, min. to Greece, April 0 and April 13,
1900, For. Rel. 1900, 041, ♦542.
<•' For. Rel. 1900, f>43-(l44.
<* Mr. Hay, Sec. of State, to Mr. Hardy, min. to Greece, june G, 1900, For. Rel.
1900, 644.
§ 445.] EXPATRIATION : LAW OF GUATEMALA. 607
do SO, and remained in the military service. The Department of
State, in reply, instructed Mr. Hardy that he had, under the circum-
stances stated in his dispatch, done all that he could properly do in
Mr. Economopoulos' behalf."
March 27, 1901, Mr.- Charles S. Francis, United States minister at
Athens, wrote a personal letter to the Greek minister of war, reciting
the circumstances of the case and saying that, while there was no
naturalization treaty between the two countries, it was believed that
the minister's " sense of justice " and considerations of " comity "
would lead to the discharge of the person in question, in order that he
might return to the country of his adoption.
March 29, 1901, the minister of war replied that the laws of the
country did not permit him to strike P]conomopoulos from the roll
of conscripts and order his dismissal from the army, but that he
would order his discharge from the ranks if he could find any reason
of health or of family that would justify him in so doing. He was
actually discharged from the service June 25, 1901.'^
" The information given below is believed to be correct, yet is not to
be considered as official, as it relates to the laws and regulations of a
foreign country.
" The Greek Government does not, as a general statement, recognize
a change of nationality on the i)art of a former (ireek without the
consent of the King, and a former Greek who has not completed liis
military service and who is not exempt therefrom under the military
code may be arrested upon his return to (jreece. The practice of the
Greek Government is not, however, uniform, but American citizens
of (Jreek origin are advised to find out before returning what status
they may expect to enjoy. Information should be sought directly
from the (ireek (Jovernment, and this Department always refuses to
act as intermediary in seeking the information.
'" There is no treaty on the subject of naturalized citizens between
the I'nited States and Greece."
Circ-uliir Notice. Department of State, .Tan. 81, 1!)U1. For. Hel. 1901, 247.
(5) GUATEMALA.
In the case of Mr. I^eon Aparicio, the Guateuialan Government
seems to have taken the ground that a person born in France, of
Guatemalan parents, by the laws of Guatemala was not entitled to be
n Mr. Hay, See. of State, to Mr. Hardy, niin. to Greece, Oct. 24. 10(K). For. Kel.
19(W, «U7.
6 For. Rel. lUOl, 247-249.
608 NATIONALITY. [§ 446.
ivj^isti'ird as a foroi^nor in CJuateiimla, although he had been natural-
ized in the United States.
For. Hel. 18U7, 3:{8-340.
In March, 1903, Alberto Posadas, a native Guatemalan, who had
been naturalized in the United States, and who bore an American
passport, was arrested and detained in Guatenuila for refusing to pay
a forced loan. When the minister of the United States interceded,
the (iuatenialan minister of foreign affairs declared that many Gua-
temalans obtained naturalization in the United States in order to
avoid the duties and obligations of citizens in Guatemala, where their
property interests lay; and he also took the ground that, by the
constitution of Guatemala, natives of the country were declared to
be citizens whenever they were within the jurisdiction. Subsequently,
Posadas was released, and the question of principle referred to Wash-
ington for discussion and settlement. With reference to the con-
tention of the Guatemalan Government, the Department of State
observed that, if the Guatemalan constitution contained, which did
not appear to be the case, a provision denying the right of expatria-
tion, '•'• the same question of dual allegiance which we have with Russia
and Turkey would arise, and a satisfactory solution of the question
could be afforded by the conclusion of a treaty of naturalization with
Guatemala, if that Government will agree.''
Mr. Hay, Sec. of State, to Mr. Combs, uiiu. to Guatemala, No. 30, April
18, iy03. For. Uel. 1903, 584.
(6) ITALY.
§ 44().
In an instruction to Mr. Marsh, American minister at Florence,
July 15, ISGS. Mr, Seward referred to the " manifest need for a re-
moval of the doubts and uncertainty which attend the condition of
the Italian naturalized in the United States, when he transiently
revisits his native country." To leave the question open would, he
declared, " be to lay a foiuidation for jealousies and discontents, not
merely pi-ofitless but injurious between the two countries, such, indeed,
as those that have sometimes disturbed the cordiality of the relations
between the United States, France, Germany, Great Britain, and
other European nations.''
In a confidential instruction to Mr. Marsh on the following day,
Mr. Seward said : " What is important to the United States in this
respect, so far as Italy is concerned, is an agreement on the principle
upon which the institutions of the United States, and of all other
American states mainly rest; namely, the right of a man in any coun-
try who is neither convicted nor accused of crime to change his domi-
cil and allegiance with a vie\y to the free exercise of bis own faculties
§ 446.] EXPATRIATION : LAW OF ITALY. 609
and the pursuit of happiness in his own lawful way. I am not aware
that any considerable military inconvenience resulted to either coun-
try from the exercise of the right mentioned by the citizens of the
United States and Italy during the w^ar in which both were recently
engaged."
Mr. Seward, Sec. of State, to Mr. Marsh, min. to Italy, July 15, 1868, MS.
Inst. Italy, I. 269, acknowledging the receipt of Mr. Mar.sh's No. 212,
of June 22, 1868 ; same to same, July 16, 1868, id. 271, acknowledging
the receipt of Mr. Marsh's confidential dispatch, No. 215, June 26,
1868.
As early as May, 1861, Mr. Seward expressed the intention to send full
powers to Mr. Marsh to negotiate and sign a naturalization treaty.
(Mr. Seward, Sec. of State, to Mr. Marsh, No. 3, May 9, 1861, MS.
Inst. Italy, I. 118.)
" It is hoped . . . that the Italian Government will not, by actually
drafting Biagiotte into their military service, give occasion for us
to demand his discharge. The feeling in the United States, as you
are aware, is very strong against compulsory military or naval service
of naturalized citizens in countries where they were born. This
sentiment the government would be bound to respect. Cases of the
kind frequently occurred with the Grerman states prior to the natural-
ization treaties with them. Since then, however, it is believed that
no difficulty upon the subject has happened. It is a matter of regi'et,
in the interest of friendly relations with Italy, that she should have
declined our overtures for a similar convention."
Mr. Fish, Sec. of State, to Mr. Marsh, min. to Italy, Nov. 15, 1872, MS.
Inst. Italy, I. 407, acknowledging the receipt of Mr. Marsh's Nos.
421 and 422, Oct. 9 and 11, 1872.
" It is a rule of ordinary prudence which is observed by this De-
partment to hesitate in expressing an opinion upon a hypothetical
case. It is possible that a naturalized citizen may have incurred
obligations or liabilities in his native country from which, on return-
ing to the country of his nativity, it would be difficult to shield him.
There is no naturalization treaty between the United States and Italy.
In the absence of one, the municipal law of that country will prob-
ably be held to be applicable to all native Italians who, though natu-
ralized abroad, may return within the jurisdiction of the Italian
Government."
Mr. Fish, Sec. of State, to Mr. Davidson, Feb. 23, 1875, 106 MS. Dom.
Let. 576.
"Although by the aid of our diplomatic and consular representatives he
[a naturalized American citizen of Italian origin, desirous of revisit-
ing Italy] may e8cai)e any. very serious punishment, it will be impos-
sible to guarantee him against forcible detention attende^l with some
annoyance and expense." (Mr. Fish. Sec. of State, to Mr. Smith,
April 18, 1871, 89 MS. Dom. Let. 157.)
H. Doc. 551— vol 3 30
610 NATIONALITY. [§ 'l^C.
" I have to acknowledge the receipt of your dispatch No. 72!) of
the 19th of January hist, relative to the case of Lieutenant Lornia,
in which you observe that the promulgation of an anniesty by the
new King of Italy, embracing a large class of offenses against military
law and discipline, will give you an opportunity of asking the release
of the American citizens now held to militai*y service in Italy, as per-
haps coming within the principle of the amnesty, and that you shall
avail yourself of the occasion in your next interview w ith the Minister
of Foreign Affairs. Trusting that your efforts in the direction stated
will be successful, I am," etc.
Mr. Evarts, Sec. of State, to Mr. Marsh, min. to Italy, Feb. 11, 1878, MS.
Inst. Italy, II. 54.
" It is understood the law of Italj' makes no exception in favor of its sub-
jects naturalized abroad, in reiiuiring from them service in the army,
if found within Italian jurisdiction. As the United States has no
naturalization treaty with Italy, the local laws must prevail." (Mr.
F. W. Seward, Assist. Sec. of State, to Mr. Wilson, March 20, 1878,
122 MS. Dom. Let. ^30.)
To the same effect, Mr. F. W. Seward, Act. Sec. of State, to Mr. Cassasa,
Nov. 29. 1878, 125 MS. Dom. Let. 408.
In the case of Mr.^ Largomarsino, a naturalized American citizen
of Italian origin, who was enrolled in the Italian army upon his re-
turn to his native country, the Italian minister of foreign affairs
informed Mr. Marsh, the American minister at Rome, that it was not
possible to make exceptions to the law^, adding that " Article 12 of
the Civil Code of the Kingdom exjDlicitly enacts that the loss of citi-
zenship does not carry with it exemption from the obligation of mili-
tary service. Matters of private interest, which, in fact, are common
to all Italian citizens on whom military service is incumbent, are not
taken into consideration by the laws of conscription. The Royal
Government cannot, therefore, hold them of any w^eight."
For. Rel. 1878, 4,58; 1879, GOO.
Mr. Evarts, writing, as Secretary of State, to Mr. Marsh, minister to
Italy, Feb. 2G, 1879, as to the foregoing case, instructed him " to
take such action as in your judgment will tend to the best result."
(MS. Inst rtaly, II. 87.)
The statement of the Italian minister of foreign affairs Is cited in Mr.
Porter, Act. Sec. of State, to Mr. Collins, Sept. 21, 1885. where it is
said : "As a matter of practice this rule has been strictly enforced."
(1.50 MS. Dom. Let. 178.)
See, to the same effect, Mr. Bayard, Sec. of State, to Mr. Blauchard, July
22, 1885, 15G MS. Dom. Let. 3.S0.
Art 11, Tit I., of the Italian Civil Code of 18G6, declares : " Citizenship is
lost ... by naturalization in a foreign country."
Art. 12, however, provides : " Loss of citizenship in the cases stated in the
preceding article does not exempt from the obligations of military
service, nor from penalty inflicted on anyone who bears arms
against his native country." The couteution of the Italian Govern-
§446.] expatriation: law of italy. 611
ment appears to be that the obligation of military service, accruing
before naturalization, is a personal obligation to be discharged if the
party return to Italian jurisdiction, unless he be found exempt by
reason of age or personal infirmity. (Mr. Wharton, Act. Sec. of
State, to Mr. Lewis, August 5, 1890, 178 MS. Dom. Let. 505.)
Mr. Dougherty, charge at Mexico, enclosed to the Department of State
with his No. 1084 of Oct. 14, 1892, a copy and translation of .a treaty
on nationality between Italy and Mexico, the ratifications of which
were exchanged Aug. 17, 1892. (114 MS. Desp. from Mexico.)
" If, as you write, you are a citizen of the United States, this Gov-
ernment will require of the Government of Italy, of which country
you say you are a native, any rights which may have been conceded
to the United States by treaty, or which may be due to their citizens
pursuant to public law. There is no naturalization treaty between
this Government and that of Italy ; but it is the purpose of this Gov-
ernment to insist in such cases that a naturalized citizen is entitled
to the same exemption from military service as our native citizens
would be in like circumstances. It is proper, however, that you
should be informed that the Government of Italy is understood to
claim that, in the absence of a treaty, the rights of a naturalized
Italian there must be regarded as governed by the municipal law,
which, as is supposed, does not exempt Italian born, naturalized
abroad, from service in the army of Italy."
Mr. Evarts, Sec. of State, to Mr. Ennis, Feb. 7, 1879, 126 MS. Dom.
Let 370.
" The experience of the Department is that natives of Italy return-
ing there, and held to service in the army by Italian law, are required
to complete the term of such service. If you are naturalized citizens
of the United States, you can procure passports which will protect
you, so long as you remain outside of the jurisdiction of the Italian
Government. Should you, however, venture within such jurisdic-
tion and so be compelled to service in the army, the Department
cannot assure you, in the absence of treaty stipulations, tliat any
remonstrance it might make in your l)ehalf would be successful."
Mr. Ilitt. Assist. Sec. of State, to Messrs. Donati & Bro., Sept. 5, 1881,
139 MS. Dom. Let. 57.
" The Government of Italy does not recognize foreign naturaliza-
tion as extinguishing the obligation of its former subjects to military
service; nor has that Government any treaty stipulations with the
United States which in any way modify the case so far as our
citizens are concerned. If, therefore, such native, so naturalized,
returns to the jurisdiction to which he was once subject, the Auierican
passport which will be given hiui, on proper api)Hcatiou. will ensure
the earnest attention of our diplomatic and consular ollicers in case
612 NATIONALITY. [§ 446.
there may be any projjer opportunity of service to him. The Depart-
ment cannot, however, guarantee freedom from detention, nor protec-
tion and ivlease in case charges are prosecuted, based on conditions
preceding the acknowledgment of obligation to the United States."
Mr. Frelingluiyseu, Sec. of State, to Mr. De Pierre, Dec. 10, 1883, 149 MS.
Doui. Let. 23.'>.
See, also, same-to same, Jau. 23, 1885, 154 MS. Dom. Let. 40.
" Information was received here last autumn, from the United
States minister at Rome, in the case of a similarly situated native
Italian in Kentucky, that such native would be held on his return to
Italy as subject to the conscription. The ministry of war at Rome
claims that the fact of his having become a citizen of the United
States, does not exempt the enquirer, (who, it may be added, was
also a minor on the date of his leaving Italy), ' from the obligations
that he has toward the military law's ' of that country." ••
Mr. FreJingliuyseii, Sec. of State, to Mr. Dunham, Dec. 29, 1884, 153 MS.
Dom. Let. 523 ; and, to the same effect, Mr. Frelinghuysen, Sec. of
State, to Mr. Savarese, Feb. 18, 1885, 154 MS. Dom. Let. 270; Mr.
Bayard, Sec. of State, to Mr. Casciani, Aug. 20, 1885, 15t; MS. Dom.
Let. 588; Mr. Bayard, Sec. of State, to Mr. Faccheuetti, March 20,
1880, 159 MS. Dom. Let. 428.
The case above referred to, in Kentucky, was that of Mr. Lanciotti, in
whose behalf the American minister at Rome was specially instructed
to solicit permission to pay a visit to Italy. The Italian minister
of war replied : " It is not possible to grant any authorization to
this effect, because the fact of having become a citizen of the
United States does not exempt Mr. Lanciotti from the obligations
that lie has toward the military laws of Italy, and for not having
complied with them, returning to his native country, he cannot be
treated otherwise than as leintcnte," or, as appear^, subject to enroll-
ment for the army. (Mr. Bayard, Sec. of State, to Mr. Lanciotti,
April 7, 1885, 155 MS. Dom. Let. 3.) See, further, as to Mr. Lan-
ciotti "s case, For. Rel. 1884, 330-339.
In view of this case, the Department " cannot . . . encourage such
former native subjects to place themselves witliin the military juris-
diction mentioned." (Mr. Bayard, Sec. of State, to Mr. Oishie, Feb. 4,
1887, 1<;3 MS. Dom. Let. 54; to Mr. Sayers, Feb. 10, 1887, id. 108; to
Mr. Comba, May 10, 1887, KM MS. Dom. Let. 127.)
" Under that article [12, Italian Civil Code] the Italian Govern-
ment, against the earnest protest of this Government, has claimed
the right to hold its former subjects to military service in case of
their return to Italy, although they have become citizens of this
country. (See Foreign Relations, 1890, page 536 et seq.) Signor
Damiani, the Italian under secretary of state, states the Italian claim
thus: That the duty to serve in the army arises 'from the explicit
regulations of the Italian law, which do not exempt from military
service anyone who has lost or voluntarily relinquished Italian citi-
§446.] EXPATKIATION : LAW OF ITALY. . 613
zenship.' In proper cases this Government will continue to protest
against this claim as it has done heretofore, but in the absence of
a treaty stipulation with respect thereto the present prospects of a
favorable results are not promising."
Mr. Foster, Sec. of State, to Mr. Mayo, Dee. 10, 1892, 189 MS. Dora. Let.
489, in reply to the inquiry of a naturalized American citizen of Italian
origin, who stated that he came to the United States at the age of
thirteen. See, in a similar sense, Mr. Foster, Sec. of State, to Mr.
Caretti, Jan. 20, 1893, 190 MS. Dom. Let. 131.
The case referred to, in Foreign Relations, 1890, 53G et seq., is that of
Nicolino Mileo, which in its earlier stage attracted much attention.
It Subsequently appeared that some of Mileo's allegations were
unfounded, and the correspondence endetl with an expression by the
Department of State of the hope that a naturalization treaty might
be negotiated.
The opinion was expressed that article 12 would not apply to the
sons of a naturalized citizen of the United States of Italian origin,
who were born in the United States after his naturalization, for the
following reasons : Article 4, Title I., of the Civil Code provides that
the son whose father is a citizen is likewise a citizen; but article 6
provides: "A person born in a foreign country of a father who has
lost his citizenship before the birth of the son, is considered as a for-
eigner. He may, however, elect Italian citizenship, provided he
makes a declaration to that effect according to the foregoing article
and establishes his domicil in the Kingdom within a year from the
time of such declaration. Nevertheless, if he has accepted a public
office in the Kingdom, or has served or is serving in the Italian army
or navy, or has otherwise complied with the provisions of the military
law without claiming exemption on the ground of his being a for-
eigner, he shall be considered as a citizen." One of the means des-
ignated under article 2 by which Italian citizenship may be lost
is that of becoming a citizen of a foreign country. The father,
therefore, although he continued, by article 12, to be subject to mili-
tary obligations, lost by his naturalization in the United States his
Italian citizenship ; and his children, born in the United States after
his naturalization, could not be said to have lost Italian citizenship,
or to be subject to any of its obligations, since they never possessed it.
Mr. Foster, Sec. of State, to Mr. Fellows, Nov. 30, 1892, 189 MS. Dom.
Let. 308.
See, in the same sense, Mr. Gresham, Sec. of State, to Mr. Cunes, May 18,
1893, 192 MS. Dom. Let. 50; Mr. Oluey, Sec. of State, to Mr. Dramis,
Jan.- 19, 1897. 215 MS. Dom. Let. 282. In the letter last cited. Mr.
Olney stated that, so far as the Department was informed, the
Italian Govermnent had shown no disiX)sition to extend its military
laws " to cover the cases of children of persons of Italian origin
born in the United States."
614 NATIONALITY. , [§446.
"The Doparlniont is not awaro, however, that this claim [of military
service in Italy) has been extended to the second generation, and if
you were born in the United States, it is not thought liiiely that any
claim would be made on you for military service should you visit
Italy." (Mr. Day, Assist. Sec. of State, to Mr, rastorelli, Jan. 18,
1808, 224 MS. Dom. Let. 511.)
The United States declined to enter into a naturalization conven-
tion with Italy, which provided (1) that naturalization in the United
States should be conferred only on persons who should make applica-
tion for it, thus denying, at least by implication, the incidental or
derivative naturalization of wives and minor children, and (2) that
it should not exempt Italians admitted to citizenship in the United
States from military duty on returning to their native country.
Mr. Gresham, Sec. of State, to Baron Fava, Italian amb., June 13, 1894,
For. Rel. 1894, 3G4.
See Mr. Gresham, Sec. of State, to Mr. Truda, Aug. 30. 1894, 198 MS. Dom.
Let. 442 ; Mr. Uhl, Act. Sec. of State, to Mr. Valinote, March 14, 1895,
201 MS. Dom. Let. 182.
October 19, 1896, Mr. MacVeagh, ambassador at Rome, brought to
the attention of the Italian Government the case of one Vittorio Gar-
della, a citizen of the United States, who was then performing mili-
tary service under compulsion in Italy. It appeared that he w as born
in Italy in 1861 and was taken to the United States when only six
years of age. He was naturalized in 1884. He resided in the United
States continuously from 1877 to 1895, his home being in the city of
New York where he had a wafe and family. He was on a visit to
Italy when he was drafted into the army.
Mr, Olney, Secretary of State, in writing to Mr. MacVeagh, Nov,
6, 1896, referred to the case of Mileo, printed in For, Rel, 1890, 586-
554, The Department, he said, had " little to add to the views ex-
pressed in the Mileo case," and, while it would w^elcome Mr, Mac-
Veagh's endeavors to arrange the matter by treaty, it was not inclined
to hope for such a result unless the Italian view should have been
materially modified,
Mr, MacVeagh brought the case personally to the attention of the
Italian minister for foreign affairs, the Marquis Visconte Venosta,
and obtained (Jardella's release in the form of a grant of unlimited
leave, which did not formally waive the contention of the Italian
Government, Indeed, the Marquis Visconte Venosta, in informing
Mr. MacVeagh of Gardella's release, observed that while he had no
doubt lost his Italian citizenshi)) l)y virtue of article 11, paragraph 2,
of the Italian Civil Code, he nevertheless renuiined " liable to military
service in the Kingdom, according to the peremptory provisions of
the succeeding article 12," and that the case of Gardella had been
446.] expatriation: law of iTai^y. 615
disposed of " in an exceptional way " in view of his exceptional situ-
ation, of certain amendments which were expected to be made in the
law regulating the levy of persons residing abroad when enlisted, and
of the interest which Mr. MacVeagh took in the case.
For. Rel. 189G, 423-^26.
See Mr. Olney, Sec. of State, to Mr. O'Brien, Nov. IG, 1895, 206 MS. Dom.
Let. 81 ; to Mr. Dondero, Nov. 22, 1895, 20G MS. Dom. Let. 156.
" Should you voluntarily return to Italy, you will place yourself
within the jurisdiction of the Italian law, and while, if you should be
held for military service, our embassy at Rome would, on proof of
your American citizenship, intervene in your behalf, the success of
the intervention can not be foreseen."
Mr. Olney, Sec. of State, to Mr. Dondero, Nov. 22, 1895, 206 MS. Dom. Let
150.
To the same effect, see Mr. Day, Assist. Sec. of State, to Mr. Magnano,
Oct. 6, 1897, 221 MS. Dom. Let. 346 ; Mr. Adee, Second Assist. Sec. of
State, to Mr. d'Esopo, Oct. 26, 1897, 222 id. 16; Mr. Moore, Act. Sec. of
State, to Mr. Reiss, Aug. 29, 1898, 231 id. 147 ; Mr. Moore, Assist. Sec.
of State, to Mr. Ruggiero, Sept. 13, 1898, 231 id. 342 ; Mr. Hill, Assist.
Sec. of State, to Mr. Victro, Dec. 14, 1898, 233 id. 261 ; to Mr. Stras-
bourger, June .30, 1900, 246 id. 207.
In December, 1897, Giuseppe Bruno, a naturalized American citizen of
Italian origin, was impressed into the Italian army. May 9, 1898,
the American ambassador at Rome was instructed to use his " good
offices " to obtain Bruno's release. " This he has been and is doing."
(Mr. Hill, Assist. Sec. of State, to Mr. Smith, Oct. 27, 1898, 232 MS.
Dom. Let. 405.)
" It is thought . . . that if you were to address a petition directly to the
Government of His Majesty the King of Italy, stating the circum-
stances of your case, you might obtain its consent to your change of
allegiance, and, in view of your ill health, release from any claim to
military service. Copy of your letter will be forwarded to our am-
bassador at Rome, and he will be instructed to use his good offices in
aid of your petition." (Mr. Hill, Assist. Sec. of State, to Mr. Victro,
Dec. 14, 1898, 233 MS. Dom. Let. 261.)
The collection of a legacy in Italy is a private matter which should be ar-
ranged through an agent of the claimant's own choice. (Mr. Hill,
Assist. Sec. of State, to Mr. Cereghino, Nov. 6, 1900, 249 MS. Dom.
Let 2.)
" The information given below is believed to be correct, yet it is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
" Italian subjects between the ages of 20 and 39 years are liable for
the • performance of military duty under Italian law, except in the
case of an only son, or where two brothers are so nearly of the same
age that both would be serving at the same time, in which event only
616 " NATIONALITY. [§447.
one is drafted, or wlien there are two sons of a widow, when only one
is taken.
" Naturalization of an Italian subject in a foreign country without -
consent of the Italian Government is no bar to liability to military
service.
"A former Italian subject may visit Italy without fear of molesta-
tion when he is under the age of 20 years; but between the ages of 20
and 39 he is liable to arrest and forced military service, if he has not
previously reported for such service. After the age of 39 he may be
arrested and imprisoned (but will not be compelled to do military
duty) unless he has been pardoned. He may petition the Italian
Govenmient for pardon, but this Department will not act as the in-
termediary in presenting his petition."
Notice to citizens formerly subjects of Italy who contemplate returning
to that country, March 18, 1901, For. Rel. 1901, 282.
(7) MOROCCO.
§447.
" In regard to your obligations in respect to Moorish subjects nat-
uralized here who may return to Morocco, I have to remark that you
will, under the treaty of 1836, claim for them the same privileges and
immunities as may be enjoyed by the citizens or subjects of any other
power Avho also may have been natives of Morocco, unless the Govern-
ment to which citizens or subjects may owe allegiance shall have a
treaty of naturalization with the Emperor. The United States has
no such treaty."
Mr. Evarts, Sec. of State, to Mr. Mathews, consul at Tangier, Dec. 7,
1877, MS. Inst. Barb. Powers, XV. 348.
"Any subject of Morocco who has been naturalized in a foreign
country, and who shall return to Morocco, shall, after having re-
mained for a length of time equal to that which shall have been
regularly necessary for him to obtain such naturalization, choose
between entire submission to the laws of the Empire and the obli-
gation to quit Morocco, unless it shall be proved that his natural-
ization in a foreign country was obtained with the consent of the
Government of Morocco.
" Foreign naturalization heretofore acquired by subjects of Morocco,
according to the rules established by the laws of each country, shall be
continued to them as regards all its effects, without any restrictions."
Art. 15, Madrid Convention, July 3, 1880, to which the United States Is
a party.
It wa.<? stated, in 1900. that this article, so far as it required a native of
Morocco, who had been naturalized abroad without the consent of his
§448.] EXPATRIATION: DUTCH LAW. 617
Government, and who had afterwards returned to Morocc-o and re-
sided there during a term equal to that which was required for his
admission to citizenship in the country in which he was naturalized,
to elect between entire submission to the laws and the obligation to
leave Morocco, had remained a dead letter. " The Department's
judgment is that not only is such residence [in Morocco] a prerequi-
site [to the election in question], but when not coupled with a decla-
ration of the citizen of his renunciation of his new and resumption of
his old, he must be presumed to have retained his acquired allegiance,
and that the Government of Morocco, by reason of its non-action to
enforce an expression of the treaty provision by the foreigner, is
compelled by a fair and impartial construction of that instrument to
assent to that contention." (Mr. Cridler, Third Assist. Sec. of State,
to Mr. Gummere, consul-general at Tangier, No. 227, Nov. 27, 1900,
175 MS. Inst. Consuls, 271.)
(8) THE NETHEBLANDS.
§448.
In 1873 a native of the Netherlands, being then seventeen years old,
went to the United States, intending to remain there. His parents
continued to live in the Netherlands, and when the proper time came
he was drafted for military service ; and, as he did not appear, it was
reported that he was declared a deserter. Subsequently, when he
desired to revisit his original home, he found that he would be liable
to arrest. Meanwhile, he had become a citizen of the United States,
and was a minister of the Reformed Dutch Church. In 1887 he re-
quested the American legation at The Hague to consider his case.
The legation submitted it to the Dutch Government, which replied
that the person in question was not a deserter, but a conscript who
neglected to present himself for enrollment in 1876 in his proper
commune, and who was in consequence advertised in the Police Ga-
zette in 1877; that, in case he should return to the Netherlands, he
would be liable to the application of article 172 and succeeding
articles of the law of August 19, 18G1, by which it was enacted that
the conscript who failed to respond to the summons for his incorpora-
tion should he brought before the proper provincial authorities, in
order that they might inquire into the case and pronounce sentence
upon it. If the conscript should be found fit for ser\nce he was incor-
porated for five years, no matter what his age might be, and he was
kept to his colors during this whole time, unless the provincial au-
thorities had decided that he was prevented by circumstances Ix^yond
his control from complying with the summons. Such a person might,
however, provide a substitute in the usual way, but such substitute
must remain with the colors during the period prescribed for his prin-
cipal.
618 NATIONALITY. [§448.
Mr. Bell, iiiin. to tlio Nethorluiuls, to Mr. Bayard, Sec. of State, March 15,
1887, For. Uel. 1887, 8J)4. CIteil in Mr. Foster, Sec. of State, to Mr.
Weyle. Oct. 14. 1802, 188 MS. Doin. Let. 508.
See Mr. Evarts, Sec. of State, to Mr. Ooodheart. March 20, 1879, 127 MS.
Doni. Let. 2:«) ; Mr. Blaine, Sec. of State, to Mr. Kommers, Feb. 19,
181K). 17«; id. 450.
The Dutch law of citizenship, which took effect July 1, 1893, con-
tains the following provision :
"Art. 7, Netherlands citizenship shall be forfeited —
*'(fl) When a Dutch subject becomes naturalized in a foreign
country, or in case of minors by participation in the naturalization
of either father or mother.
"(^) By marriage in the case of a woman.
"(c) By voluntary naturalization in a foreign country.
"(f/) By entering the service or army of a foreign power without
special royal permission.
"(e) By residence outside Dutch tecritory, provided such residence
be not in an official capacity, for a period exceeding ten consecutive
years, in cases where the person in question fails to notify the burgo-
master or proper authority of the place where he last resided in the
Kingdom, its colonies, or possessions in other parts of the world, or
in lieu thereof the Dutch minister or consular official in the foreign
country, that it is not his intention to abandon citizenship.
" Such notification dates the commencement of a new period of
ten years.
" The ten-years period shall commence for minors from the day on
which they attain majority according to the Dutch law."
For. Rel., 1893, 474.
Mr. Dewes Valk, a native of the Netherlands, served in the Dutch
army from May, 1800, till July, 1807, when he went to his home, in
the province of Groningen, on leave of absence. He afterwards
accompanied his parents to the United States, where in due time he
was naturalized. He was informed that on February 1, 1870, he was
declared by the war department of the Netherlands to be a deserter,
but he had understood that by a law passed in 1897 an absence of
twelve years from the Netherlands exempted a deserter from prose-
cution. Being dasirous of revisiting his native country, he drew up
a petition to the Dutch minister of war, praying that such action
might be taken as would enable him to make the visit w^ithout moles-
tation. The minister of the United States at The Hague was
instructed to bring the matter informally to the attention of the
minister of war, with a view to having such action taken as might
Ix' found proper under all the circumstances.
Mr. Day, Sec. of State, to Mr. Newel, No. 131, July 1, 1898, MS. Inst.
Netherlands, XVI. 366.
§ 449.] EXPATRIATION : NICARAGUA. 619
" The information given below is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
"A subject of the Netherlands is liable to military service from his
nineteenth to his fortieth year. He must register to take part in the
drawing of lots for military service between January 1 and August
31 of the calendar year in which he reaches the age of 19. He is
exempt, however, from service if he is an only son or is physically
disabled ; and in the case of a family half of the brothers are exempt,
or the majority if the number is uneven.
" No military service is required of one who became a citizen of the
United States before the calendar year in which he became 19 years
of age, and a Netherlands subject who becomes a citizen of the United
States when he is 19 and betw^een January 1 and August 31 may have
his name removed from the register by applying to the Queen's com-
missioner of the province in which he was registered. If he does not
have his name removed from the register, or if he becomes a citizen of
the United States after the register is closed (August 31) and his
nlime is drawn for enlistment, his naturalization does not affect his
military obligations to the Netherlands, and if he returns he is liable
(1) to be treated as a deserter if he did not respond to the summons
for service or (2) to be enlisted if he is under 40.
" Former Netherlands subjects are advised to ascertain, by inquiry
from the Netherlands authorities, what status they may expect to
enjoy if they return to the Netherlands. This Department, however,
uniformly declines to act as the intermediary in the inquiry."
Circular notice of the Department of State, Aug. 30, 1901, For. Rel.
1901, 418.
(9) NICARAGUA.
§449.
Mr. Donaldson, United States consul at Managua, Nicaragua, in his
No. 12, June 15, 1898, reported that President Zelaya had granted
Dr. Victor Koman, a naturalized citizen of the United States of
Nicaraguan origin, a year in which to arrange his business and return
to the United States, on pain, if he remained in Nicaragua after that
time, of being considered a citizen of that country. Mr. Don-
aldson enclosed an extract from the Revised Laws of Nicaragua,
under the head of Aliens, chapter 3, as follows: "Article 32. . . .
Nicaraguans naturalized in a foreign country remain subject to the
nationality of Nicaragua always when residing in the territor}' of
Nicaragua."
620 NATION ALTTY. [§ 450.
The Doi>artinont of State said: "In the absence of a treaty of
naturalization, the only recourse in favor of Dr. Roman is one of
friendly concession by the Nicaraguan Government."
Mr. Day. Sec. of State, to Mr. Merry, min. to Nicaragua, No. 89, May 9,
1808, MS. Inst. Cent. Am. XXI. .310.
See, also, Mr. Day, See. of State, to Mr. Quay, U. S. S., July 6, 1898, 230
MS. Dom. Let. 40.
(10) PEBSIA.
§450.
The position of Persia, as an adherent of the doctrine of indelible
allegiance, was defined in the case of Hajie Seyyah, a native subject,
who had been naturalized in the United States. In a note to the
minister of the United States at Teheran, Nov. 19, 1893, the Persian
prime minister declared : " Hajie Seyyah, of Mahallat, is a veritable
subject of Persia whether he be resident in Persia or he depart for a
foreign land. Under no circumstances can there be any change in
his nationality, and wherever he may be he will be a citizen iaf
Persia. I send this reply so that there may be no objections raised
in the future." "
The Department of State answered : " You may say to the minister
of foreign affairs that so far as the case of Hajie Seyyah is concerned
the incident was terminated by the announcement that this Govern-
ment was indisposed to regard him as entitled, under all the circum-
stances of the case, to protection as a person hona fide conserving his
acquired rights as a citizen of the United States.
" This being so, it does not appear to be necessary or expedient to
discuss the abstract question of the right and duty, of the Govern-
ment of the United States toward its lawful citizens."
Mr. Uhl, Acting Sec. of State, to Mr. McDonald, min. to Persia, Jan. 5,
1804, For. Rel. 180.3, 508.
" The information given below is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations
of a foreign country.
" Permission to be naturalized in a foreign country is not granted
by the Persian Government to a Persian subject if he is under charge
for a crime committed in Persia, or is a fugitive from justice, or a
deserter from the Persian army, or is in debt in Persia, or fled to
avoid pecuniary obligations.
" If a Persian subject becomes a citizen of another country with-
out the permission of the Persian Government he is forbidden to
a For. Rel. 180.3, .WT.
§§451,452.] expatriation: Portugal; roumania. 621
reenter Persian territory, and if lie had any property in Persia he is
ordered to sell or dispose of it.
" There is no treaty between the United States and Persia defining
the status of former Persian subjects who have become naturalized
American citizens."
Circular notice. Department of State, Wasliingtou, Feb. 18, 1901, For.
Rel. 1901, 424.
(11) PORTUGAL.
§ 451.
" The information given below" is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
" Military service is obligatory upon Portuguese male subjects, but
by becoming naturalized in a foreign country a Portuguese loses his
qualifications as such.
" On returning to the Kingdom with the intention of residing in it
he may reacquire Portuguese subjection by requesting it from the
municipal authorities of the place he selects for his residence. Not
making this declaration he remains an alien and is not subject to mili-
tary duty.
" If a Portuguese leaves Portugal without having performed the
military duty to which he was liable and become^ naturalized in a for-
eign country, his property is subject to seizure, and that of the person
who may have become security for him when he left the Kingdom is
equally liable. There is no treaty between the United States and Por-
tugal defining the status of former Portuguese subjects who have be-
come naturalized American citizens."
Circular notice, Department of State, Washington, Feb. 11, 1901, For. Rel.
1901, 439.
"A protracted examination of the files of this Department discloses no
case of comi)laiiit by reason of the impressment into the Portuguese
military service of a naturalized citizen of Portuguese origin, return-
ing to that country." (:\Ir. Ad(H>, Second Assist. Sec. of State, to Mr.
Costa, Oct. 23, 1897, 221 MS. Dom. Let. G22.)
(12) ROUMANIA.
§ 452.
" The information given below is believed to be correct, yet is not to
be considered as official, as it relates to the laws and regulations of a
foreign country.
"All male inhabitants of lvoumania,oxcei)t those under foreign pro-
tection, are liable to military duty between the ages of 21 and 30 years.
622 NATIONALITY. [§ 453.
"American citi/AMis formerly Roumanian subjects are not molested
upon their return to Kouniania, unless they infringed Roumanian law
before emigrating. One who did not complete his military service in
Rounuinia, and can not prove that he performed military service in
the United States, is subject to arrest, or fine, or both, for evasion of
military duty,
" There is no treaty between the United States and Roumania defin-
ing the status of naturalized Americans of Roumanian birth returning
to Roumania."
Circular notice. Department of State, Washington, Feb. 20, 1901, For. Rel.
1901, 441.
(13) RUSSIA.
§453.
In 1867 Mr. Seward presented to the Russian minister at Wash-
ington a draft of a convention of naturalization, and expressed the
hope that the Russian Government would accept it, not only as a
means of regulating the subject between the two countries, but also
as an example and incentive to other governments to conclude similar
arrangements with the United States.
Prince Gortchakow declined the proposal on the ground that it
was the policy of Russia to forbid the return of her subjects who
might choose to abandon her protection and escape from their alle-
giance.
Mr. Seward addressed to the Russian minister a long expostulatory
argument against this position, but without result.
Mr. Seward, Sec. of State, to Mr. Stoeckl. Kuss. min., Sept. 9, 1867, MS.
Notes to Russ. Leg. VI. 221; Mr. Stoeeld to Mr. Seward, Dec. 28,
1867, and Sept. 14/26, 1868, 6 MS. Notes from Russ. Leg. ; Mr. Seward
to Mr. Stoeckl, Oct. 5, 1868, MS. Notes to Russ. Leg. VI. 263.
In October, 1864, Bernard Bernstein, who was born in Russian Poland in
1823, and who emigrated to the United States in 1845 or 184(). owing
military duty to Russia, was arrested in that country and imprisoned
on a charge of having failed to perform military service. On the
sixth day after his arrest he wrote to the Department of State, and
the Department, Nov. 29, 1864, instructed the legation at St. Peters-
burg to take steps to secure his release. He was altogether dis-
charged in March, ISfJr), in consideration, it was believed, of his
American citizenship, which he accjuired by naturalization in 1856.
His actual imprisoiunent lasted only several days. The Dejiartment
of State afterwards declined to make a claim for indemnity. (Mr.
Fish, Sec. of State, to Messrs. Shorter & Brother, March 13, 1873,
98 MS. Dom. Let. 129, enclosing a copy of the Department's circular
of May, 1871, containing information as to the system of military
conscri|)tion in various Euroj»ean countries.)
Bernstein's case formed the subject of a rei)ort to Congress. (Message
of President Grant, Feb. 8, 1873, II. Ex. Doc. 197, 42 Cong. 3 sess.)
§ 453.] EXPATRIATION : LAW OF RUSSIA. 623
Mr. Fish, replying to an inquiry concerning the treaty relations
between the United States and Russia, and the treatment of natural-
ized citizens of the one country on their return to the other, the latter
being their country of origin, said : " We have no special treaty with
Russia on this subject, nor is this Department informed as to her laws
or practice in such cases. The friendly disposition manifested by
Russia towards this Government would lead it to entertain the hope
that its citizens, who conduct themselves properly in that country,
would be allowed to travel therein without molestation."
Mr. Fish subsequently stated, however, in the case of a native of
Russian Poland, that the United States could not guarantee him
against detention and annoyance on his return to his native country,
if he was by its laws liable to military service.
Mr. Fish, Sec. of State, to Mr. Bednawsky, May 4, 18G9, 81 MS. Dom. Let.
58 ; Mr. Fish, Sec. of State, to Mr. Marlis, Feb. 24, 1870, 83 MS. Dom.
Let. 333.
" The Department has received your despatch No. 180, of the 7th
instant, relative to the case of Casimir Kachelski, who you say has
been sentenced by a court at Warsaw to be banished to Siberia for
becoming naturalized as a citizen of the United States. It seems obvi-
ous that that part of the sentence, at least, which is based upon the
allegation that Kachelski voluntarily left his native country, is erro-
neous in point of fact, for, having been a minor when he was
sent to Breslau in Silesia for his education, he was legally and actu-
ally subject to the will of his parent, and by his obedience thereto
cannot properly be accused of having left Poland of his own accord.
It is presumed that the Russian law to which you refer prohibits the
subject of that Empire from becoming naturalized anywhere. It can-
not be believed that it pointedly forbids them from becoming citizens
of the United States. If it did, both the enactment and carrying into
effect of such a law must be regarded as derogatory to the dignity of
this Government and as requiring a remonstrance as being incompat-
ible with those friendly relations which we are desirous of keeping up.
" The Department concurs with you that the proper course for
Kachelski to pursue, under existing circumstances, would be to peti-
tion the Emperor for his pardon. You will in that event support the
petition by such representations as you may suppose would be most
likely to ensure its success."
Mr. Fish, Se<'. of State, to Mr. Scliuylor, cliargC- at St. Potersburj;, No. 144,
May 28, 1872, MS. Inst. Russia, XV. 327.
See, in a similar sense, Mr. Kvarts, Sec. of State, to Mr. Foster, min. to
. Russia, .Tan. 18, 1881. MS. Inst. Russia, XVI. 177; Mr. .L C. R. Davis.
Act. See. of State, to Mr. Hoffman, cliarRc, Dec. 20, 1881. MS. Inst.
Russia, XVI. 25G.
624 NATIONALITY. [§453.
" With respect to this Government being able to guarantee you from
' annoyance " in the event of your return to the country of your original
allegiance, I must observe that this Government has neither the occa-
sion nor the power to interpret the local laws of Russia with respect
to the military duty of Russians naturalized abroad and returning to
Russia, and that it is consequently impossible to predict whether you
may or may not be molested on that account. In ca^se of molestation,
this Government would extend to you all possible protection in like
manner as to a native-born citizen of the United States. But, it must
not be forgotten that, in the absence of a specific treaty of naturaliza-
tion, the personal status of a native-born American citizen, and of a
Russian who has been naturalized in the United States, may be very
different in Russia. The former has clearly never incurred any obli-
gation under the laws of that country, and incurs none by going
thither other than that of peaceful observance of the laws of the land.
The latter, on the contrary, while yet a Russian, may, under Russian
laws, have contracted personal obligations towards his native land,
which under those laws may not be extinguished by the fact of leav-
ing the country and acquiring status elsewhere as a citizen or subject
of another country. In such case, if an individual so circumstanced
with respect to Russian law were to return to that country and vol-
untarily put himself within its jurisdiction, it is probable that he
would be held to the fulfilment of that personal obligation, in like
manner as he would be held to discharge any other personal indebted-
ness cognizable under Russian law. This is the case in other coun-
tries, especially in Italy, where cases of this character have arisen
affecting Italians naturalized abroad, who have been held to the com-
pletion of their personal obligation of military service without redress
being practicable.
" The Department has no means of knowing what personal obliga-
tions you may have contracted under Russian law, prior to your nat-
uralization and while yet a Russian subject, and it must therefore
decline to express any opinion on this point."
Mr. Evarts, Sec. of State, to Mr. Cronstine, March 17, 1880, 132 MS.
Dom. Let. 212.
A native Russian, naturalized in the United States, being desirous to
return to his native country, the Department of State said : "As
there is no naturalization treaty with Russia, you will be subject to
the laws of that Empire within Its jurisdiction. Your best course
would be formally to petition the Czar for official leave to return."
(Mr. F. W. Seward, Assistant Secretary of State, to Mr. Minger, Feb.
23, 1878, 122 MS. Dom. Let. 2.)
In the absence of a treaty of naturalization between the United States
and Russia, the success of any attempt on the part of the United
States to secure the release of a naturalized American citizen of
Russian origin " from the natural oi^eratiou of the laws of Russia
§453.] expatriation: law of Russia. 625
regarding the obligations of its native citizens," in case he sliould
place himself within Russian jurisdiction, " would be at least prob-
lematical." (Mr. Hunter, Second Assistant Sec. of State, to Mr.
Slier, Jan. 29, 1879, 126 MS. Dom. Let. 281.)
There being no naturalization treaty between the United States
and Russia, " the respective rights of the citizens of the two countries
rest on international law and comity. I do not understand that a
Russian, naturalized abroad and returning to Russia, is ipso facto
claimed as a Russian. He may, in determinate cases, be held liable
to military duty, or to punishment for non-fulfilment of service due
when he emigrated. With regard to such cases the Department
abstains from any opinion in advance of an actual instance present-
ing itself for consideration. If a case arises every possible step is
taken to defend bona fide American citizenship.
" Generally, however, a law-abiding naturalized Russian return-
ing to Russia and there obeying the laws and justifying his American
citizenship in good faith, goes unmolested during any reasonable
period of sojourn unless actually liable to military duty or penalty.
"I can not imdertake to say what is the Russian law concerning
estates falling to alien heirs. That is a personal matter, in regard
to which Mr. Staub should seek competent legal advice."
Mr. Blaine, Sec. of State, to Mr. Randall, M. C, June 8, 1881, 137 MS.
Dom. Let. G67.
" Even in questions of citizenship affecting the interests of natu-
ralized citizens of Russian origin, the good disposition of the Imperial
Government has been on several occasions shown in a most exem-
plary manner; and I am sure the actual counselors of His Majesty
cannot but contemplate with satisfaction the near approach nuide
in 1874 to the arrangement of negotiations for a treaty of naturaliza-
tion between the two countries. On that occasion, as will be seen by
consulting Mr. Jewell's No. 62, of April 22, 1874, the only remaining
obstacle lay in the statutes of the Empire touching the conferment
and loss of citizenship, of which the examining commission and the
considtative council of state recommended the modification in a sense
compatible with the modern usage of nations."
Mr. Blaine, Sec. of State, to Mr. Foster, min. to Russia, No. 87, July 29,
1881, For. Rel. 1881, 1030, 1034.
By the laws of Russia, a Russian subject who Incomes naturalized
abroad, and afterwards revisits his native country, " is liable to prose-
cution for any offence which he nuiy have previously connnitted
against the laws of that Empire, including that of unlicensed natural-
ization in a foreign country." If he has been naturalized in the
United States, and, on voluntarily returning to Ru.ssia, is arrested on
H. Doc. 551— vol 8 40
626 NATIONALITY. [§ 453.
the charfjc of miaiitliori/AHl expatriation, the American legation at
St. Petersburg will he instructed to do what it properly can for his
relief, in the direction of protecting him from loss of liberty or dam-
age in property.
Mr. mtt, Act. Sec. of State, to Mr. IMerczynski, Oct. :{, 1881, 1.39 MS.
Doiii. Let. 208; Mr. Ilitt, Act. Sec. of State, to Mr. IloCfman, charge
Oct. ;{, 1881, MS. Inst. Russia, XVI. 240.
" As a naturalized American citizen, you would, if provided with
a passport, be entitled to all the protection due to a native-born
American citizen. This does not imply that you would be free from
molestation should you return to your native country [Russia], and
it is not improbable that you would be subjected to various incon-
veniences, perhaps to arrest. In this case every efl'ort would be
exerted in your behalf by the diplomatic and consular officers of the
United States, though it is impossible to say w ith what result. You
yourself must, of course, be the judge of the advisability of the visit
you contemplate."
Mr. Davis, Assist. Sec. of State, to Mr. Newding, Feb. 14. 1883, 145 MS.
Dom. Let. 529.
" I have to observe upon the subject that the Russian Government
does not admit the right of expatriation, but holds that a Russian
subject who leaves Russia without the permission of the Emperor
breaks the laws of his country, and the code provides punishment
therefor.
" Russia has no treaty stipulations with the United States which in
any way modify the case so far as our citizens are concerned. If,
therefore, one of these returns to the jurisdiction of the offense which
had been entirely committed before his naturalization here, the Amer-
ican passport which will be given him on pro})er application will
assure the earnest attention of our diplomatic and consular officers
in case there may be any proper opportunity of service to him.
The Dejiartment cannot, however, guarantee freedom from deten-
tion, nor protection and release in case charges are there prosecuted,
for infractions of Russian law conmiitted by the individual while a
Russian subject and before any obligation Avas acknowledged by him
to the United States."
Mr. Froliiigluiysen, Sec. of State, to Mr. Ilalpern, Nov. 27, 1883, 149
MS. Dom. Let. 20; Mr. Frelinghuysen, Sec. of State, to Mr. Turrill.
March 19, 1884, 150 MS. Doiu. Let. 325; Mr. Frelinghuysen. Sec. of
State, to Mr. Kaufman. Feb. 10, 1885. 154 MS. Dom. Let. 202.
See, also, Mr. Frelinghuysen, Sec. of State, to Mr. Adler, April 14, 188.'5,
14G MS. Dom. Let. 429.
§ 453.] EXPATRIATION : LAW OF RUSSIA. 627
" From the responses previously made to your inquiries in Mr.
Wagner's Ixihalf, it appears that the brunt of the charge against him
was that he, a minor, quitted Russian jurisdiction in advance of
attaining the age when he might be called upon for military service.
He was born at Lodz in 1852, and in 1874 became liable to military
service. He came to the United States in 18G9, five years before the
liability could rest upon him. When the technical offense, styled
' evasion of military duty,' which is the sole charge against him,
began to' exist as a tangible accusation, Reinhardt Wagner had
already, by residence in the United States for more than three years
preceding his majority, acquired under our statutes the prelim-
inary rights of citizenship. No nation should assert an absolute
claim over one of its subjects under circumstances like these; and it
is thought improbable that Russia will persist in such a claim, even
if made. There would be no limit to such a pretension; for the
taking of a male infant out of Russia might be regarded with equal
propriety as an ' evasion ' of eventual military service. It is tanta-
mount to asserting a right to punish any male Russian who, having
quitted Russian territory and become a citizen of another state, may
afterward return to Russia.
" This claim is different from that put forth by some Governments
for the completion of military duty fully accruing while the subject
is within their jurisdiction, and actually left unfulfilled. It is, for
example, claimed that a subject who leaves the country when called
upon to serve in the army, and becomes a citizen or subject of another
state, may, if he return to the former jurisdiction while yet of age
for military duty, be compelled to serve out his term. This rule ap-
pears harsh to us, and yet it goes no further, as a matter of fact,
than a contention that an obligation of service accruing and unpaid
while the subject is a resident of the country, continues, and is to be
extinguished in kind by performance of the alleged defaulted service.
But, harsh as it is, it is wholly different from the infliction of vin-
dictive punishment, as, for instance, exile for the constructive evasion
of an inchoate obligation. To exact the fulfillment of an existing
obligation is one thing; to inflict corporal punishment for not rec-
ognizing a future contingent obligation is another."
Mr. Frelingliuysen, Sec. of State, to Mr. Iliint, niiii. to Russia, Dec. 22,
1&S.S, 11. K.\. Doe. 88, 48 Cong. I sess. 7-8.
This instruction related to the ease of Reinhardt Wagner, who \v;is re-
ported to have been e.xiled to Siberia. It afterwards appeared that
he was in the United States. (For. Rel. 1885, 003; infra, p. (WO.)
Mr. Hunt was informed that the foregoing instruction was " not to he
read and eonnniniicated to tlie minister ipxisfthtiis rcrhis" but was to
be used in his discretion. (MS. Inst. Russia. XVI. SGO. )
See, further, as to Wagner's case, II. Ex. Doc. 109, 48 Coug. 1 sess.
628 NATIONALITY. [§453.
" Til reply to your question as to your liability to the military Jaws
of Russia, should you return thither, I obsiTve that the Czar's Gov-
ernment d(K's not admit the right of expatriation to such extent as
to secure immunity from the subject's obligations to the laws of
Russia, if such subject comes within their jurisdiction. The code
provides punishment where such a subject leaves Russia without
Imperial permission. . . .
" The passport carried by an American citizen will of course assure
the earnest action of our diplomatic and consular officers in hift favor,
if occasion should arise; but freedom from detention cannot be
guaranteed, nor protection or release, in case charges are prosecuted
in Russia for infractions of Russian law, committed by the indi-
vidual while a Russian subject and before any obligation was
acknowledged by him to the United States.
" You appear to think your case exceptional in the regard that you
left Russia at the age of eleven, or prior to the age of eighteen, but,
as a matter of practice in that country, which is of especial concern
to you, I may cite a case reported in despatch No. 141, of July 23,
1881, by Mr. Foster, the minister at St. Petersburg. The case was
that of Isaac Goldner, who was born in Russia in 1858, but left there
in 1870, at the age of twelve. Goldner was naturalized here. In
1880 he returned to Odessa, with an American passport, and was
immediately arrested and held for military service.
" The minister strenuously presented the case for the favorable
consideration of the Czar's Government, and on several occasions,
but without the desired results."
Mr. Bayard, Sec. of State, to Mr. Wolf, March 21, 1885, ir>4 MS. Doiii.
Let. 553.
See, also, Mr. Bayard. Sec. of State, to Mr. Harrison. March 14, iaS5,
1.54 MS. Dora. Let 472; Mr. Bayard, Sec. of State, to Mr. Rosen,
April 8, 1885, 155 id. 2.3; Mr. Porter, Assist. Sec. of State, to Mr.
Barnard, May 29, 1885, id. 530; same to Mr. Johnson, June 4, 1885,
id. 571.
" It appears . . . that you were born a subject of Russia, that
you left there at the age of sixteen, and have been naturalized as an
American citizen. You now propose visiting Europe, and ask ' Can
Austria or Prussia hold me as a Russian subject.' ... As regards
your enquiry touching your liabilities in those countries, I have to
say, that, according to the understanding of this Department, there
exists between them and Russia an arrangement which might lead
to the shortening of your stay in either country, provided it were
known that you had violated the Russian law in any regard ; but it
is not supposed that you would be otherwise interfered with there in
§ 453.] EXPATRIATION : LAW OF RUSSIA. 629
any case (except, of course, you were accused of some oflfence named
in the extradition treaties.)"
Mr. Bayard, Sec. of State, to Mr. Firuski, June 13, 1885, 155 MS. Dom.
Let. 692.
"Any Russian going abroad without permission would be liable to
punishment on his return home, whether his military duties had been
performed or not. Still more severely would he be dealt with if his
emigration bore the character of evasion of conscription, and the fact
of his becoming a subject or citizen of another state would be ignored
in treatment of him, and therefore be inefficient to protect him. The
Russian Government has never shown the least disposition to swerve
from this principle, and there is no reason to believe that it may be
moved to do so by any argument that our Government is able to put
forth. It is strongly opposed, on the contrary, to encourage anything
that could be interpreted as a mitigation of its laws of conscription or
of those on emigration. On this latter point the note of the foreign
office, a translation of which accompanied my No. 49, of the 2d instant,
on the subject of measures to prevent the immigration into the United
States of paupers, indicates the unwillingness of this Government to
take any action which might lead to the belief that it does not still
forbid emigration. . . .
" In these cases [see note, infra] and in others of former years, need-
less to cite, the Russian Government has shown its intention to assert
its power to make its laws respected within its jurisdiction, and it
refuses to admit the right of a foreign state to exempt by naturaliza-
tion its subjects from their unfulfilled prior duties to the land of their
birth. The fact of birth in Russia of parents at that time Russia r
subjects entails upon it duties from which the Government considers
itself alone competent to grant absolution. Emigration without per-
mission is regarded as equivalent to desertion, even though the
emigrant may be an irresponsible infant, and on the return of such
emigrant he is liable to arrest and punishment.
" This Government has, in certain cases, conceded the release of the
parties arrested, but this has been done, in the words of Mi". Stough-
ton, ' by courtesy, not by right,' and in order to avoid discussion liable
to affect the friendly relations with the Government of the United
States.
" It is not likely that the Government of Russia will ever consent to
do more than this, release by courtesy, and then only under peculiarly
favorable circumstances, in regard to persons of Russian birth, con
sidered by it as still owing military duty, or as having disobeyed the
laws of the Empire on emigration, and arrested on their return within
its dominions.
630 NATIONALITY. [§ 453.
" It is difficult to see the way to obtain any redress for the injury to
persons thus arrested, or to bring about the recognition of the princi-
ple maintained by our Government, as that of Russia repels all
advances on our part to regulate the question by means of a treaty of
naturalization, towards which overtures were made in April, 1884, by
a formal note from this legation in obedience to an instruction from
the Department. To this note no written reply has yet been vouch-
safed by the Russian foreign office; but verbally it has been given
to us to understand that the Imperial Government cannot accept our
views of the act of naturalization as a citizen of the United States
being sufficient to protect a subject of the Czar from punishment for
offenses against the laws of the Empire committed before his
emigration."
Mr. Wurts, charge at St. Petersburg.Ho Mr. Bayard, Sec. of State, June 14,
1885, For. Kel. 1885, 0(33.
This di.spateh related, primarily, to the case of Israel Miiller, which was
brought to the attention of the legation by Mr. Bayard's No. 21, May
25, 1885, For. Kel. 1885, 658. It was stated that Muller, who was a
naturalized citizen of the United States of Russian origin, was, on
his return to Russia In February, 1885, arrested and thrown into
prison on a charge of having abandoned Russian allegiance without
permission. He was released on bail and placed under pt)lice surveil-
lance, but four weeks later escapetl and returned to the United States.
His case was not brought to the attention of the legation while he was
detained in Russia.
Mr. Wurts referred to three other cases, the first of which was that of
Rheinhardt Wagner. In 188.3 it was reported that Wagner was exiled
to Siberia, but, as stated by Mr. Wurts, it afterwards appeared that
he had left Russia and was really in the Ignited States. The second
case was that of A. V. Perrin (alias Pravin), who in 1878 recpiested
the legation to obtain permission for him to return to Russia for a
few months. Mr. Stoughton, who was then American minister at
St. Petei"sburg, Informed him that if he came with an American pass-
port and confined himself to legitimate business, he would not be
disturbed, provided that he did not owe military service ; but that,
if he owed such service, he might be arrested, and that while the
Russian Government in such cases usually, at tlie re(iuest of the
American minister, grantetl a conditional release, this was regarded
" as a concession from courtesy and not of right." In 1882, Mr. Perrin
apiilied to Mr. Stoughton's successor, Mr. Hunt, who made a similar
reply. Mr. Frelinghuysen approved Mr. Hunt's action and instructed
him " to abstain from any further action in the case," adding that it
was " regarded as taken out of the Department's control by the
admission of Mr. Perrin that he is a RUssian Jew owing military
service." In 1884. when Mr. Taft succeeded Mr. Hunt at St. I'eters-
burg, Mr. I'errin again addressed himself to the legation. Mr. Taft
asked the Russian Government to grant him permission to pass six
weeks In the Empire. The ministry of foreign affairs replied that
there were no obstacles to Ills return, but added that it could not
guarantee him impunity if his identity with Pravin, who owed mili-
§453.] expatriation: law of &ussia. 631
tary service, should l)e established. The third ease was that of Dr. J.
Mordaiiiit Sigisniund, who, while bearing an American i)assiK)rt, was
arrested in Poland on a charge of emigration and evasion of military
duty. He escaped, leaving his passi)ort in the hands of the Russian
police. Subsequently, when the legation asked for his passport, the
Russian Government sent it to the legation, with the remark that it
had been left by Dr. Sigisniund with the police, but made no reference
to his arrest.
As to I'errin's case, see Mr. Hoffman, charge, to Mr. Blaine. Sec. of State,
No. 170, Nov. 2(i, 1881, .3(5 MS. Desp. from Russia; Mr. .1. C. B. Davis,
Act. Sec. of State, to Mr. Hoffman, Dec. 29, 1881, MS. Inst. Russia,
XVI. 256.
" The question brought up in the dispatch of Mr. Wurts — which
may be commended for its clearness and for the vahiable information
it gives as to the practice in this rehition of the legation at St. Peters-
burg— is whether Russia may, without a violation of international
law, refuse to relieve Russians by birth who, after being naturalized
in the United States, return to Russia, from the obligations imposed
on them as Russian subjects.
" On this question it may be observed —
"(1) That we have no treaty with Russia in any way conceding
on Russia's part the right of expatriation.
" (2) That even should we maintain that, by the present state of in-
ternational law, the right to transfer allegiance by naturalization
is generally established, this is subject to the right of the sovereign of
original allegiance to disregard such naturalization when, so far as it
concerns himself, it appears to have been illusory and insincere on
the part of the party naturalized.
" It appears from the cases noted in Mr. Wurts's dispatch that the
Russian Government, in the present case, has not transcended the
right thus conceded of treating as inoperative foreign naturalizations
which are thus illusory and insincere. The course, therefore, taken
in the present case by the United States legation at St. Petersburg
should meet with the approval of this Department."
Report of Dr. Francis Wharton, law otticer of the Department of State,
July 8. 1885, For. Rel. 1885, (Utll
This rei)ort was transmittetl to .Mr, Lothrop, .Vmerican minister at St,
Petersburg, with an instruction signed by Mr, Porter. Acting Secre-
tary of State. .July 18. 1885. In this instruction the Department of
State said: "While the Department approves .Mr. Wurls's course in
rei)orting the general aspects of the case before action, and concurs
with his inference that a favorable reply from tlie Russian (Jovern-
ment is not prob;l)le, yet it would l>e as well, on general principles.
to state Miiller's case in the most favoralde light to the foreign oliice
without demanding his release as a right, e.\i)ressing the ho|)e tliat
there may be circumstances which would dispose the authorities to
be lenient, as has occasionally hai)i)ened in previous cases. It will
thus be a matter of record that the Dei)artment and your legation
632 NAf tONALtTY. t§ 45.^.
have used their best efforts for our citizens, and each additional ease
will add to the evidence of the necessity for a naturalization treaty
when a favorable moment arrives." (For. Kel. 1885. 009.)
In so much of this instruction as relates to the question of Miiller's re-
lease, the fact seems to have been overlooked that he had escaped
from Russia, and was in the United States when he brought his case
to the Department's notice. (For. Rel. 1885, 658.)
See, further, as to the question of expatriation, Mr. Lothrop, min. to
Russia, to Mr. Bayard, Sec. of State, No. 9, Aug. 13, 1885, For. Rel.
1885. 071.
" While the Department will give you a passport on your furnish-
ing proof of your naturalization, it is nevertheless proper to say that,
if you were born, as appeaj-s, a Russian subject, no encouragement
can be given you to extend your proposed journey as far as the terri-
tory of your native country. Nothwithstanding the overtures of the
United States, the Government of Russia has not signed any treaty
of naturalization with this Government; and any former subject,
who had left Russia without the permission of the Emperor, might
be held or at least arrested on a charge of unfulfilled obligations to
that Government, should he venture within its jurisdiction."
Mr. Bayard, Sec. of State, to Mr. Grant, June 1, 1886, 160 MS. Dom.
Let. 363.
See, in the same sense, Mr. Bayard, Sec. of State, to Mr. Bahny, July 15,
1886, 161 MS. Dom. Let. 2 ; Mr. Bayard, Sec. of State, to Mr. Wein-
stein, April 7, 1887, 103 MS. Dom. Let. 568; Mr. Rives, Assist Sec.
of State, to Mr. Fisher, March 31, 1888, 1^67 MS. Dom. Let. 630.
Mr. Bayard, in a letter to Mr. Byrne, Sept. 24, 1880, uses the form of
reply employed in Mr. Evarts to Mr. Cronstiue, March 17, 1880,
supra, p. 624.
Dec. 27, 1888, the Department of State inquired of the Russian legation
whether it could furnish a safe conduct to enable a native of Russian
Poland, Mr. Adolph Kutner, who had emigrated thirty-five years
before and had been naturalized in the United States, to revisit his
native country unmolested. The legation replied that it had no
ix>wer to issue such a safe conduct, but that it was open to Mr.
Kutner to i)etition the minister of the interior. The subject was
then brought unofficially to the attention of the Russian authorities
througli the American legation at St. Petersburg. (Mr. Bayard, Sec.
of State, to Mr. Tree, min. to Russia, Jan. 2, 1889, MS. Inst. Russia,
XVI. 574.) The Russian Grovernment asked that Mr. Kutner should
answer certain interrogatories concerning his life and career, in-
cluding one as to the religion professed by him. The Department
of State, in conveying this communication to him, " found itself
unable to interrogate him as to the religion professed by him. inas-
much as the Constitution of the United States prohibits the applica-
tion of any religious test whatever in respect of citizens of the
United States." (Mr. Blaine, Sec. of State, to Mr. Wurts, chargt^
Jan. 10, 1890, MS. Inst. Russia, XVI. 022.)
Some years later the Russian charge d'affaires refused to authorize the
vise of Mr. Kutner's passport, because he " was not a Christian."
The case was the subject of a resolution in the Senate, May 25, 1897.
§453.] expatriation: law of Russia. 633
(Mr. Sherman, See. of State, to Mr. Breckinridge, mln. to Russia,
June 18, 1897, MS. Inst. Russia, XVII. ; Senate Com. on For. Rel. to
Sec. of State, May 27, 1897, MS. Misc. Let.. May. 1897, part 3; and
Sec. of State to Com. on For. Rel,, June 5, 1897, 19 MS. Report
Booii, 508.)
" Your dispatch No. 92, of January 18, 1887, relative to the case
of Adolj^h Lipszyc, has been received. In it you state that ' Lipszyc
is not charged with any violation of the Russian laws before leaving
the country or since his return. His sole offense is his naturaliza-
tion in the United States without the consent of Russia, of which
he was a subject.'
"By the law of July 27, 18G8 (Rev. Stats., s. 1999), it has been
enacted that —
" Whereas the right of expatriation is a natural and inherent right of all
people, indispensable to the enjoyment of the rights of life, liberty, and the
pursuit of happiness; and whereas, in recognition of this principle, this Gov-
ernment has freely received emigrants from all nations and invested them
with the rights of citizenship; and whereas it is claimed that such American
citizens, with their descendents, are subjects of foreign states, owing allegiance
to the governments thereof; and whereas it is necessary to the maintenance of
public peace that this claim of foreign allegiance should be promptly and flnully
disavowed: Therefore, any declaration, instruction, opinion, order, or decision
of any officer of the United States which denies, re.stricts, imi)airs, or questions
the right of expatriation is declared inconsistent wth the fundamental princi-
ples of the Republic.
" This right, therefore, it is the duty of the Department and its
representatives abroad to maintain without restrictions or quali-
fications.
"At the same time the Department is far from questioning the
right of His Imperial Majesty to refuse to permit his subjects to
emigrate. This is an incident of territorial sovereignty recognized
by the law of nations, but can only be exercised within the territory
of Russia. If a Russian subject emigrates and becomes a citizen of
the United States, his acquisition of this citizenship entitles him to
all the privileges which by treaty, or the law of nations, belongs to
citizens of the United States when visiting Russia. Doubtless he
could, when thus revisiting Russia, be tried, as a general rule, for
offenses committed l)y him before emigration.
" But this general rule does not include the offense of expatriation
when followed by the acquisition of citizen.ship in the United States.
This position is maintainable under the law of nations, but the case
falls within the tenth article of the treaty of 1882, between Russia
and the United States, a copy of which is inclosed.
" The article distinctly provides that Russian subjects in the
United States and American citizens in Russia, without any dis-
tinction as to native or naturalized citizens or subjects, may dispose
634 NATIONALITY. [§453.
of their proixMty. That a citizen of the United States naturalized
in Russia oouhl under the treaty dispose of his property in the
United States is beyond question, and the privileges thus conferred
are eciually given and equivalent, and should be so construed by each
of the contracting j)arties. xVs citizens of the United States becoming
Russian subjects are not to lose their proj^erty in the United States,
so Russian subjects becoming citizens of the United States are not
to lose their property in Russia.
" It may be said that this stipulation is qualified by the concluding
sentence of the article, providing that it is not to derogate ' from the
force of the laws already published, or which may hereafter be pub-
lished, by His Majesty the Emperor of all the Russias to prevent the
emigration of his subjects.'
" It is not necessary to do more than call your attention to the rule
that the assertion at the close of a treaty, of a general claim to which
a prior grant is an exception, is an affirmation of such a grant. Of
this the reassertion of their general claims to sovereignty by the
German emperors in their treaties with other sovereigns may be
taken as an illustration ; and another, to the same effect, may be found
in our negotiations with Great Britain, in which she recognized
Britons naturalized in the United States to be American citizens,
while maintaining the doctrine of perpetual allegiance. But such
reservation does not conflict with the prior grant. When the status
of citizenship is changed, then the right of control ceases.
" His Imperial Majesty may ' prevent ' Russians from coming to
the United States, but when they have come, and have acquired
American citizenship, they are entitled to the privileges conferred by
the article.
" If there could 1k» any doubt that this is the true meaning of the
article in question it would be removed by the fact that it is adopted
from the fourteenth article of the treaty between the United States
and Prussia, concluded May 1, 1828.
" That treaty was accepted by Mr. Buchanan and Count Nesselrode.
the negotiators, as a standard; and the Russian treaty is to be taken
with the construction which the Prussian treaty rightfully bears. A
copy of this treaty l)etween the United States and Prussia is inclosed
herewith.
" It was never contended by Prussia, nor subsequently by Germany,
that the validity of the naturalization of a Prussian or (lerman in
ihe United States was under this article to be conditioned upon his
having emigrated w'ith his sovereign's consent. If such an emigrant
left his native land in violation of its laws requiring him to ])erform
military service, this might be the subject of prosecution on his return-
But emigration, by itself, when followed by the acquisition of citizen-
§ 453.] EXPATRIATION : LAW OF RUSSIA. 635
ship ill the United States, was not to deprive such citizen of the un-
molested enjoyment of the rights of American citizenship as given
by international law as well as by the treaty in question. The
object of the treaty was to secure to that large class of Prussians who
had emigrated, and had become citizens of the United States, the
right to dispose of their property in their native land, with a mutual
and equivalent privilege to emigrants from the United States, who
should become Prussian subjects. The question whether the emigra-
tion was with the consent of the sovereign was not made, nor could
such a condition have been accepted without destroying the newly-
acquired rights of citizenship.
" The construction always given to the Prussian treaty by both the
parties thereto has been that the rights it gives Prussians (or Ger-
mans) who become citizens of the United States are not dependent on
their emigration being with their sovereign's consent. German sov-
ereigns have not been disposed to look favorably on those of their
former subjects who, having emigrated and been naturalized in the
United States, revisit their native land to dispose of their property.
But numerous as have been such visits, in no single case has there been
an attempt to proceed against such visitors for breach of allegiance.
Count Nesselrode and Mr. Buchanan must have been well aware of
this; and it is impossible for us to do otherwise than hold that when
they adopted in 1832 the very words of the treaty of 18-28 they
adopted them with the construction which they not only naturally
bear, but which had been assigned to them in practice both by Ger-
many and the United States.
" We must, under the treaty before us, regard Lipszyc's United
-States citizenship as having been acquired with the assent of Russia :
and, therefore, he is entitled under treaty, not merely in this country
but in Russia, to the immunities attached to such citizenshij). As a
citizen of the United States he visits Russia; and altliough he may be
liable, when in Russia, for offenses committed by him before his emi-
gration, and may be expelled from Russia on reasonable grounds, he
can not be tried for an emigration which, when followed by naturali-
zation in the United States, Russia herself recognizes as conferring
citizenship of the ITuited States with the right of disposition in
Russia of property there situated. And when you invite from Itis
Imperial Majesty's Government the withdrawal of penal action based
exclusively on that emigration you ask for no act which is at variance
with the policy of that Government, but for one that is simply in
accordance with its treaty stipulations. The withdrawal of such
prosecution would be regarded as a signal jji'oof of the continuance
of the friendship which has so long existed b 'tween Russia and the
Uiiiied States.
636 NATIONALITY. [§ 453.
" Such a withdrawal is [in] no wa}' inconsistent with the ac-
knowledgfcd ii<rht of Russia to prevent emigration ; but on the other
hand for the United States to acquiesce in the depriA'ation of the
rights which beh)ng to their naturalized citizens, would be to sur-
render one of their cherished and fundamental institutions. To such
surrender this Department can not assent. And in view of the
eminently friendly relations between the two Governments and of the
facts that the question is not, under the treaty, one of principle with
Russia; and that Lipszyc has been already subjected to a long impris-
onment, I am confident His Imperial Majesty's Government will not
hesitate to act in accordance with the opinions and wishes of the
United States. Releasing Lipszyc from imprisonment in no way
derogates from the rights of Russia as reserved in the treaty, and I
am sure His Imperial Majesty's Government will be unwdlling, by
continuing that imprisonment, to press on the United States so
unwelcome a question as that of the inviolability of the treaty privi-
leges of her citizens."
Mr. Bayard, Sec. of State, to Mr. I^tlirop, niin. to Rus.'^ia. Feb. 18, 1887,
For. Rel. 1887, 048.
Article H2~}, Russian Penal Code, chap. 7, reads as follows: "Whoever,
leaving his «)untry, enters a foreign service without the permission
of the Government, or takes the oath of allegiance to a foreign
l)Ower. for this transgression of the duty of a loyal subject and of his
oath is liable to the loss of all social rights and perpetual banishment
from the territory of the Empire, or, in case of his unauthorized
return to Russia, to deportation to and settlement in Siberia." (For.
Rel. 1887. 94.5.)
Article X. of the treaty of 1832 with Russia.
The citizens and subjects of each of the high contracting parties shall
have power to dispose of their personal goods within the jurisdic-
tion of the other, by testament, donation, or otherwise, and their
representatives, being citizens or subjects of the other party, shall suc-
ceed to their said personal goods, whether by testament or ab intestato.
and may take possession thert»of, either by themselves, or by others
acting for them, and dispose of the same at will, paying to the i>rofit
of the respective (Jovernments such dues only as the inhabitants of
the country wherein the said goods are shall be subject to i>ay in
like cases. And in case of the absence of the representatives, such
care shall l)e taken of the said goods as would be taken of the goods
of a native of the same country in like case, until the lawful owner
may take measures for receiving them. And if a que.stlon should
arise among several claimants as to which of them said goods be-
long, the same siiall be decided finally by the laws and judges (»f the
land wherein tiie said goods are. And where, on the death of any
person holding real estate, within the territories of one of the high
contracting jiarties. such real estate would by the laws of the land
descend on a citizen subject of the other party, who by reason of
§ 453.] EXPATRIATION : LAW OF RUSSIA. 637
alienage may be incapable of holding it, he shall be allowed the time
fixed by the laws of the country ; and in case the laws of the country
actually in force may not have fixed any such time, he shall then be
allowed a reasonable time to sell such real estate, and to withdraw
and export the proceeds without molestation, and without paying to
the profit of the resi>ective Governments any other dues than those
to which the inhabitants of the country wherein said real estate is
situated shall be subject to pay in like cases. But this article shall
not derogate in any manner from the force of the laws already pub-
lished, or which may hereafter be published, by His Majesty the
Emperor of all the Russias, to prevent the emigration of his subjects.
Article XIV. of the treaty of 1828 ivith Prussia.
The citizens or subjects of each party shall have power to disiwjse of
their personal goods within the jurisdiction of the other, by testa-
ment, donation, or otherwise; and their representatives, being citi-
zens or subjects of the other party, shall succeed to their said personal
goods, whether by testament or ab intestato, and may take possession
thereof, either by themselves or by others acting for them, and dis-
l)ose of the same at their will, paying such dues only as the inhabi-
tants of the country wherein the said goods are shall be subject to
pay in like cases. And in case of the absence of the representative,
such care shall be taken of the said goods as would be taken of the
goods of a native, in like case, until the lawful owner may take
measures for receiving them. And if question should arise among
several claimants to which of them said goods belong, the same shall
be decided finally by the laws and judges of the land wherein the
said goods are. And where, on the death of any pei'son holding real
estate within the territories of the one party, such real estate would,
by the laws of the land, descend on a citizen or subject of the other,
were he not disqualified by alienage, such citizen or .subject sliall be
allowed a reasonable time to sell the same, and to withdraw the pro-
ceeds without molestation and exempt from all duties of detraction,
on the part of the Government of the respective States. But this
article shall not derogate in any manner from the force of the laws
already published, or hereafter to be published by Ills Majesty the
King of Prussia, to prevent the emigration of his subjects.
" By your note dated March 27-April 8, you informed me that the
Government of the United JStates considered the arrest and trial of
Mr. Adolph Lipszyc, prosecuted for havin<j: become a naturalized
American citizen, as a grievance of which it felt called upon to
complain.
" You made also the observation that the documents of Lijiszyc,
having been legally delivered to him and constituting private prop-
erty, of which he had made no criminal use, the Government of the
United States could not admit that lie might be deprived of them or
hindered from making use of them.
" I shall permit myself to remark to yon on this subject, ]Mr. Min-
ister, that the whole question appears to rest on a misunderstanding,
638 NATIONALITY. [§453.
which has provontcd the acts of the Imperial Government from
ri'ceiving a correct interpretation on your part.
" The rehitions of the state to the subject or citizen are the exchi-
sive domain of the internal legishition of every country, wliich alone
has the ri^ht and the power of loosening or tightening the bonds
that serve to hold its subjects or citizens according as it may judge
fit or necessary for the public welfare in general.
" This right is thus understood and practiced by all governments.
Thus it was only in 18(58 that the United States proclaimed the free-
dom of emigration of their citizens; it was in 1870 that England for
the first time abandoned the strict observance of the principle, ' once
a subject, always a subject.'
'* France does not now recognize the right of her citizens to emi-
grate except under certain conditions, and a Frenchman naturalized
in a foreign country can eventually be prosecuted in France, and even
condemned to death.
" The Imperial Government of Russia does not recognize the right
of its citizens to emigrate without special authority. According to
the terms of article 325 of the penal code any person who, having
gone abroad, takes service there without the authority of Govern-
ment, or who becomes naturalized, incurs the loss of all his civil
rights and perpetual banishment. If he returns to Russia he would
be transported to Siberia.
" This law is altogether general in its purport and is applicable
without discrimination to Russian subjects who may have become
naturalized in any country whatsoever. Its application to the case
of Lipszyc can not, therefore, be regarded as a grievance towards the
United States.
" In regard to Lipszyc's papers, it is necessary to form a just idea
of the value they may have in Russia.
" That these papers were legally delivered by the American author-
itias there can be no subject for doubt. The Government of the United
States grants naturalization on the request of any person domiciled
in the States who fulfills the requirements of the i^jnerican law on
naturalization.
" It furnishes him with documents which, setting forth his capacity
of citizen of the United States, guarantee to him its advantages.
The act of naturalization being according to law the papers have a
legal value in America.
" On the other hand, a fundamental law of the Empire forbids
Russian subjects to change their nationality, and every infraction
of this law is punished as a crime,
"A person inscribed on the registers of population as a Russian
subject, unless especially authorized to emigrate, is and always remains
a Russian subject, w^hether he w ishes it or not. He could not hold
§ 453.] EXPATRIATION : LAW OF RUSSIA. 639
an authentic foreign passport without viohition of the hiw. His
papers, therefore, can have no legal value in Kussia ; they tend to
prove his guilt without changing anything in his position as a Rus-
sian subject. AMiile an American law has conferred upon him the
rights of American citizenship, a Russian law considers him as hav-
ing preserved the status of a Russian subject. There is a conflict then
between the legislations of the two countries, but in the o])inion of
the Imperial Government without the possibility resulting therefrom
of the least alteration of the good relations of the two Governments.
" The situation is altogether the same on both sides. As Russia
could not pretend that a law of the Empire should hinder action of
the laws in the United States, so the United States can not demand
that a Russian law should be amended or abolished in its effects by
reason of an American law. When a Russian subject becomes nat-
uralized in America as a citizen, the Government of the United States
ignores the Russian law, which forbids him the act, and which always
holds him to be a Russian subject.
" If he returns to Russia he naturally falls back under the penalty
of the Russian law, and the Imperial Government could not recog-
nize in him the standing acquired contrary to the dispositions of its
own laws.
" Nevertheless, on closer examination of the question, it is easy to
perceive that the conflict above indicated between the Russian and
the xVmerican legislations is but apparent, and can cause no real dif-
ficulty.
"• In fact the Government of the United States confers naturaliza-
tion on a foreign subject without inquiring into the laws of the coun-
try to which he belongs; but it only does so at the request of the
foreigner.
" It is for him to know what he loses on quitting the citizenship of
his own country, and to judge if the advantages which he counts on
by his change will sufficiently compensate him for his losses. A
Russian naturalized in the United States knows, or ought to know,
that he can not return to Russia without danger of criminal punish-
ment. If he returns, all the same, it is at his risk and peril.
" The complaint of the United States in this case appears all the
less founded, as by one of the provisions of the treaty of 188:2 the
difference between an American citizen, formerly a Russian subject,
and every other citizen of the United States has already been clearly
established. Article 10 of that, treaty, in determining the rights of
the respective citizens or subjects in regard to inheritance, stipulates
at the same time that ' this article shall not derogate in any manner
from the force of the laws already published or whicb uuiy hereafter
be published by His Majesty the Emperor of all the Russias to ])re-
vent the emigration of his subjects.'
640 NATIONALITY. [§453.
" In brin^in|T: tho forogoing to your notice, Mr. Minister, I venture
to indulge the hope tluit you will admit that in the case of Lipszyc
the Imperial (Jovernment has but conformed to the fornuil provisions
of the hnvs of the P^mpire, and has in no manner derogated from the
principles of equity and of law which should exist in the amicable
relations between Russia and the United States."
M. de Giers, Russian luin. of for. aff., to Mr. Lotlirop, Am. min., April
n-23, 1887. For. Uol. 1887, {)51>-9()1.
As to i)rop<)S{Ml cliangcs in tlio Russian law concerning natui'alization,
see Mr. Lothrop to Mr. liayanl, March 17, 1887, and Mr. Ileenan,
consul at Odessa, to Mr. I'orter, Assist. Sec. of State, March 29, 1887,
For. Hel. 1887, Of)."), 957 ; Mr. Lothrop to Mr. Bayard, No. 119, June 1.
1887, :{9 MS. Dosp. from Russia; Mr. Bayard to Mr. Lothrop, No. 93,
June 24, 1887, MS. Inst. Russia, XVI. 510.
" It is not hopefully anticipated that Russia will he now disposed to enter
upon a negotiation so often refused, but you are at liberty to sound
the minister of state on the subject." (Mr. Bayard, Sec. of State,
to Mr. Lothrop. min. to Russia, Jan. 14, 1886, MS. Inst. Russia,
XVI. 405.)
" I duly received your note of April 11-23 in answ^er to mine of
March 27- April 8. I beg to express to your excellency my high
appreciation of the considerate attention you have given to the case
of Adolph Lipszyc, and for your courteous statement of the views of
the Imperial Government relative to his naturalization in the United
States.
" In submitting to you some further observations which seem to me
pertinent, I should say at the outset that, as I understand it, to a cer-
tain extent my Government is in cordial agreement w ith you.
'' The United States fully assents to the doctrine that to every coun-
try belongs the exclusive management of its domestic affairs. No
political principle is held more sacred than this in America. It also
agrees that all w'ho enter a country become subject to the laws and
tribunals of that country for all acts done while remaining there. It
also agrees that to every country belongs the exclusive right to pre-
scribe and enforce its relations with its own subjects or citizens. So
long as a man remains in the land of his birth he certainly owes it
allegiance and must recognize the obligations and duties imposed b}'
its laws. This allegiance of course continues until rightfully trans-
ferred to and accepted by another government.
" Here the divergence obviously begins. The United States insists
that it is neither just nor practical, especially under the conditions of
modern society, to assume that native allegiance is a perpetual bond
which can not be renounced.
" The position of the United States is that when a man has actually
expatriated himself, and by naturalization has assumed allegiance to
an adopted country, his political situation is completely changed.
§453.] expatriation: law of Russia. 641
Citizenship is a personal condition and attends an individual wherever
he goes. From the nature of the case he can not owfe a twofold alle-
giance. He can not at one and the same time be one thing at Athens
and another at Rome, but must bear the same national character
everywhere. Naturalization of course implies the renunciation of the
former allegiance and the assumption of a new allegiance. This act
therefore necessarily affects his relations to two governments,
and what was before limited to questions of purely domestic concern
may thus be raised to international importance. It seems to me, with
great deference, that it obviously presents something more than the
ordinary case of a ' conflict of laws,' spoken of by your excellency.
Such conflicts usually concern only private and individual rights. A
conflict between states as. to citizenship involves a conflict as to alle-
giance, which is, of course, of the highest public concern.
" In ordinary cases of conflict of laws it is readily recognized that
each country, within its own territorial jurisdiction, may administer
its own laws without any just ground of offense to any other. But
when a conflict as to the right of naturalization arises, the question of
private rights is almost necessarily merged in the paramount question
of the rights of the state.
" It seems to me that it is only by great discretion that conflict on so
delicate a subject can fail to endanger harmonious relations. It gives
me great pleasure here to say, that the judicious consideration ex-
tended by the Imperial Government in cases of this kind has hitherto
happily averted unpleasant feelings.
" In a previous letter I have pointed out that the views of the
United States are not at all of a theoretical or sentimental character.
They are of the most practical and vital character, for a very large
portion of its best citizens hold their citizenship by naturalization.
" It would be quite irrelevant for me to discuss here the origin or
extent of the doctrine of indelible allegiance. But it seems projx^r to
notice that your excellency seems to have been led into an error as to
the position of the question in the United States. It is true that it
was only in 18()8 that the natural right of exi)atriati<)n was declared
formally by act of Congress, but this was never intended or under-
stood as the declaration of a new principle. It was only intended as
a solenni declaration of a fundamental principle. I can declare, on
the highest authority, that no other doctrine has ever been held, from
the foundation of the Government, by any of its political depart-
ments, and this is a question which pertains especially to the political
departments of the Government. It was one of the questions which
led to our war of 1812 with Great Britain, and though it remained
unsettled at the close of that war, yet it was not tluMvai'lcr asserted
with the former arrogance. So much doubt, indeed, was thrown on
H. Doc. 551— vol 3 41
642 NATIONALITY. t§ 453.
tlie question that, finally, in 1808, it was referred to a commission of
England's most 'eminent jurists and statesmen, who unanimously
reported that the doctrine ' once a subject, always a subject,' was
' neither reasonable nor convenient,' and that it ' was at variance with
those principles on which the rights and duties of a subject should be
deemed to rest.' Under this decisive condemnation the doctrine, as
your excellency is aware, disappeared from British law.
"As to the laws of France on this important subject, though aware
of some obscurity about it, I have not understood it quite as stated by
your excellency. The Code Napoleon expressly declared French citi-
zenship to be lost by foreign naturalization. I am informed that by
some subsequent laws. Frenchmen acquiring foreign naturalization
without leave were subjected to the penalty of confiscation of prop-
erty and to deportation from the Kingdom. In 1860, however, in his
annual message, President Buchanan was able to declare, on the au-
thority of the French minister of war and the decisions of the French
courts, that France recognized the right of expatriation. But in the
disturbed period about 1870, it seems that some law or regulation was
adopted, that where a person conscripted failed to appear, he might
be prosecuted for ' insoumission.' If it api:>eared that he had been
naturalized abroad for three years or more, he was discharged ; if
for a less time, he might be imprisoned for a short period. I am not
aware that even this modified regulation has been enforced of late
years.
" I also note your protest that the treaty of 1832 does not recognize
the lawfulness of the naturalization of Russian subjects by the United
States.
" Without further discussing the point at this time, I should state
that my Government has supposed it did so recognize such naturali-
zation ; and I may add that it seems to me that the emigration clause,
at the end of the 10th article, may be given full force without ascrib-
ing to it the meaning given in your note. Certainly the United States
never for a moment questioned that the right to regulate and control
the emigration of its subjects was within the exclusive domain of the
Imperial (lovernment. This it regards as an incident of territorial
sovereignty to be exercised within territorial limits, but not as follow-
ing the sui)ject into foreign countries.
" I rogret that I can not assent to your excellency's position that
Lipsz3X''s naturalization papers, though valid in America, are value-
less in Russia. They are valid in America only because they recog-
nize a valid national act, and in the hands of a naturalized citizen
they are the peaceful evidence of his citizenship. If the Imperial
Government claims that the act of naturalization violates its rights,
it might properly demand of the United States that the papers should
§ 453.] EXPATRIATION : LAW OF RUSSIA. 643
be revoked and withdraAvn. But to seize and confiscate such papers,
when no unhiwful use has been made of them, seems to be wholh^
unnecessary and to be an exercise of power of which the United States
may justly complain.
" In taking leave of the legal aspects of this case, as they present
themselves to me on principles alike just and convenient, I beg for a
moment to ask whether the following may not justify 3'our indulgent
consideration. It is now over twenty-five years since Lipszyc left
Russia and he has ever since lived in the United States. Even if he
is guilty of an offense in acquiring naturalization may it not now,
after this lapse of time, be condoned ?
" I am also informed that the Emperor on his accession to the
throne, or at his coronation, graciously made a grant of amnesty or
pardon which would include the offence charged against Lipszyc.
" I have never seen a copy of this imperial act, and my information
ma}' be incorrect, but I beg respectfully to call attention to it. At the
same time i^ermit me to say that I should be greatly obliged if your
excellency could furnish me an English or French translation of his
Majesty's grant aforesaid."
Mr. Lothi'op, mill, to Russia, to M. de Giers, miii. of for. aff., April 24-
May (5, 1887, For. Kel. 1887, 9G1.
Mr. Lotlirop, in reiwrtiug the result of the trial of Lipszyc, or Leibschutz,
said : " Leibschutz has been tried and found guilty and sentenced to
be sent out of the empire. ... I presume, as is usual, the depri-
vation of civil rights is a part of the sentence. If so, this probably
works a forfeiture of his interest in his father's estate." Tlie Depart-
ment of State " was not at that time in a position to deny the right of
Russia to take the action which was taken in this case, and it does
not now, in the absence of a treaty by which the Russian Government
recognizes the right of expatriation, deem that it would be warranted
in further intervening in ^Ir. Leibscluit//s lielialf." (Mr. Adee, Act.
Sec. of State, to Mr. Widdicoml)e, Oct. 13, 189:5, 194 MS. Dom.
Let. .^>. )
Subse<iuently. the Americiin minister at St. Poterslmrg used his good
offices in support of a petition addressed by Leil)scliutz, or Lipszyc, to
tlie Emperor for a pai'dcm. (Mr. Olney. Sec. of State, to Mr. Breck-
inridge, March 11, 189«), MS. Inst. Russia. XVII. 420.)
" Our legation at St. Petei-slmrg rei)oi*ts that the refusal of tlie Russian
consular officers in this country to authenticate the papers of the
Messrs. Lima is l»ased on the law depriving all Russian sul)jects,
who without permission emigrate and assume a foreign nationality,
of their civil rights, thus rendering tlieiii incap;ii)le <»f owning or
inheriting any i>rop(Tty in the Empire, or of doing there any legal
act whatsoever ; so that the power of attorney of the Messrs. liima.
even if duly authenticated, would not 1k> admitted in the courts. The
only appeal is by petition vo the Emperor. This may be written in
English, should state the circumstances of the case resjH'ctfully.
clearly, and succinctly, should give the address of the i)etitioner. should
be addressed * To His Imperial Majesty Alexander III, Emperor of All
(i44 NATIONALITY. [§453.
tlio Kussins. St. Potorsburji. Russia.' and should be sent by mail, and
not tln-oujih tliis Department nor our legation at St. Petersburj;.
The effect of the law may also be avoided l>y an arrangement with
the co-heirs in Russia, under which the latter accept the inheritance
and allow tlie heirs in tliis country such proportion as may be agreed
upon, although of course there is no method of enforcing such an
agreement" (Mr. Moore, Acting Sec. of State, to Mr. Harmer, Aug.
10, 1889, 174 MS. Dom. Let. 111.)
" With reference to your letter of the 3d instant, enclosing two
(locinnents for authentication by the Russian legation, I have to
inform you that the papers have been returned to this Department
by the Russian charge d'affaires ad interim, with the statement that
the legation ' cannot authenticate any documents whatever, relating
to the transfer of property in Russian Poland issuing from Hebrews
who have left Russia without permission.' The charge consequently
declines to legalize the paj^ers ludess accompanied by passports or
other documentary evidence, showing that the parties left Russia
Avith the i)ermissioii of the Imperial Government. Your papers are
accordingly herewith returned to you."
Mr. Bayard, Sec. of State, to Mr. Lavenberg. Oct. 7, 1887, 165 MS. Dom.
Let. 588.
As to the case of Mr. 'Adolph Kutner, the following documents are printed
in H. Ex. Doc. 470, 51 Cong. 1 sess. : Mr. Bayard to Baron Rosen, Dec.
27, 1888, p. 89; Mr. XL S. Foote to Mr. Morrow, M. C, Dec. 11, 1888.
p. 90; Baron Rosen to Mr. Bayard, Dec. IG, 1888, p. 90; Mr. Bayard
to Mr. Tree, No. 5, Jan. 2, 1889, p. 90; Mr. Muldrow to Mr. Bayard,
Dec. 3, 1888, p. 91 ; Mr. Rives to Mr. Muldrow, Dec. 7, 1888, p. 92 ; Mr.
Muldrow to Mr. Bayard, Dec. 27, 1888. p. 92 ; Mr. Tree to Mr. Bayard,
No. 3.3, Feb. 1, 1889, p. 94; Mr. Blaine to Mr. Wurts, Ai)ril 20, 1889,
p. 112; Mr. Blaine to Mr. Foote, April 20. 1S89, p. 113; Mr. Adee to
Mr. Foote, Sept. 19, 1889, p. 118; Mr. Wurts to Mr. Adee, No. 58, Oct.
8, 1889, p. 123 ; Mr. Wurts to Mr. Blaine, No. 68, Nov. 7, 1889, p. 124 ;
Mr. Wurts to Mr. Blaine, No. 70, Dec. 7, 1889, p. 124; Mr. Blaine to
Mr. Wurts, No. 73, Jan. 10, 1890, p. J25.
As to the case of Herman Kempinski. see. in the same doeiunent. the fol-
lowing: Mr. I'owdermalver to Mr. Blaine. March 11, 1889, p. 94; Mr.
Wurts to Mr. Blaine, No. 18, March 15. 1889, p. 108; Mr. Blaine to
Mr. Wurts, tel. March 16, 1889, p. 110; Mr. Wurts to Mr. Blaine. No.
19, March IS, 1889, p. Ill; Mr. Wurts to Mr. Blaine, tel. May 12,
1889. I). 114; Mr. Win-ts to Mr. Blaine, No. 34, May 12, 1889, p. 114;
Mr. Adee to .Mr. Wurts, No. 51, Sept. 20, 1889, p. 118.
In August, 180-2, it was reported that Jacob Goldstein, a natural-
ized citizen of the United States, bearing a passport issued by the
Department of State, had been arrested and imprisoned at Kharkov,
Ru.ssia, on the gromid that he was "amenable to militia duties."
The legation of the United States at St. Petersburg was instructed
to investigate the case. The legation, while referring to the case of
§ 453.] EXPATRIATION : LAW OF RUSSIA. 645
Kempinski in 1889, and suggesting that, if Goldstein had been ar-
rested for evasion of military servnce, the penalty for which is exile
to Siberia, his best course would be to prepare a j^etition for clemency,
presented the case to the Russian foreign office, and ascertained that
Goldstein was in reality charged with being a person named Zlotow
and with having entered Russia under a false passport. Goldstein
was brought before the local court at Kharkov, which decided in
his favor. He left immediately afterwards, and the case was thus
disposed of.'
For. Rel. 189.S, .520, 527-028, .541, .5-1.*?. *^
It was stated that William Schwabauer, a native of Russia, emi-
grated to the United States in 1870, bringing with him a son three
months old; that he was naturalized in 1882, and in 1890 went to
Russia, taking his family Avith him; that, after a visit of two months,
he returned to the United States, but left his son behind on account
of illness, and that the son was afterwards prevented by the Russian
authorities from leaving the country. The son, according to the
laws of the United States, -was an American citizen through the
naturalization of his father, but by Russian law was considered a
Russian subject, in spite of his father's naturalization. " While the
position of the Russian Government is opposed to American ideas,
this Government cannot, in the absence of treaty stipulations con-
trolling the subject, do more than use its good offices in endeavoring
to secure the permission of the Russian Government for the return
of your son."
Mr. Gresham, Sec. of State, to Mr. Schwabauer, Oct. IS. 1803, 104 MS.
Dom. Let. 50. See, also, Mr. Gresham. See. of State, to Mr. White,
miu. to Russia, Oct. 18, 1808, MS. lust. Russia, XVIL 188.
" Our legatiou at St. Petersburg has l)eeu iufornied tliat. uuder Russian
law, such petition [for i)erniission for the wife and son of a natu-
ralized citizen of Russian origin to join liiui in America 1 must be
signed by the interested parties and addressed directly to the Russian
minister of the interior, if it is a question of a change of nationality,
or to the governor of the i>roi)er province, if it is a question of
obtaining a passport to go abroad." (Mr. Adee, Act. Sec. of State,
to Mr. Elmore. Aug. .80, 1805, 204 MS. Dom. Let. 300.)
Samuel B. Rosenthal, a native of Russia, who came to the United
States when fourteen years of age and was afterwards duly natural-
ized, was notified by the Russian authorities that he was required to
perform military service; and his father, who still lived in Russia,
was ordered to produce him by a certain day, subject to a penalty of
300 rubles fgr failing to do so. "As Mr. Rosenthal is not in Russian
jurisdiction, but is in the United States, it is not perceived that there
is occasion for any action by this Dejiartment in this case. It would
not be proper, of course, for the Department to make any representa-
646 NATIONALITY. [§ 453.
lions rcpirdin^ the threatened iinpositionof u fine upon Mr. Rosen-
thars father in Ivussia."
Mr. Ulil, Act. See. of State, to Mr. Cook, Nov. 20, 1893, 194 MS. Dom.
Let. 313.
A fortiori no steps, can be taken by the Department to prevent the collec-
tion in Rnssiii of sncli a fine imposed upon the parents of a perst)n
wlio lias only niacU' a dcclarntion of intention to become a citizen of
the United States. (Mr. Bayard, Sec. of State, to Mr. Weinsteln,
April 7, 18.S7, 1(« MS. Dom. Let. r>m.)
Miss Cecilin C. Gaertner, a naturalized citizen of the United
States, of llussian origin, who left her native land at the age of
fifteen without permission of the Russian Government, inquired of
the Department of State whether she could return to Russia without
fear of molestation. The De])artment suggested that the most dis-
creet course for her to pursue would be to address a formal petition
directly to the proper authority for release from Russian subjection.
She adopted this course, and the American minister at St. Petersburg
was instructed to use his personal good offices to obtain early and
favorable consideration for the i^etition. The petition was granted.
Mr. Gresham, Sec. of State, to Mr. White, min. to Russia, Feb. 10, 1894,
MS. Inst. Russia, XYII. 205; Mr. Uhl, Act. Sec. of State, to Miss
Gaertner, Jan. 29, 1895, 200 MS. Dom. Let. 404, enclosing a note
from the Russian foreign office of Jan. 11, 1895, announcing that the
Emperor had granted her petition for permission to throw off her
Russian allegiance. The note of the foreign office accomiianied
dispatch No. 27, Jan. 14. 1895, 40 MS. Desp. from Russia,
It was reported in 1894 that Stanislaus Krzeminski, a naturalized
citizen of the United States, had been exiled to Siberia for expatriat-
ing himself without i^ermission. Mr. Gresham, as Secretary of State,
in an instruction to Mr. White, American minister nt St. Petersburg,
.[uly 3, 1894, said that, if the report were true, Krzeminski's " exile to
Siberia, for no reason save his having quitted his native country some
thirty years ago without imperial consent, would entail a hardship
calling for earnest remonstrance." Mr. White wrote to the foreign
office, and also visited it, urging the earliest and most favorable
attention possible to the subject. There being delay, he applied to the
minister of the interior for information and learned, informall}',
that, although Krzeminski had committed an offence in leaving tln^
empire without permission, he had been relieved from all penalties
for it by an imi)erial anniesty, but that he was detained on a charge of
defalcation as a police official before he left the empire, and that
further application regardiiig the case would best be made to the
ministry of justice. Mr. White afterwards called at that ministrv
and, besides, had two interviews with the acting minister of foreign
§ 453.] EXPATRIATION : LAW OF RUSSIA. 647
affairs, with whom he left '' a personal note." Krzeminski subse-
quently died in prison at Warsaw.
For. Rel. 1894, 541-557.
In a dispatch, No. 2G7, of September 29, 1894, Mr. White, referrins to liis
iuteniews witli tlae Russian oliicials, said :
" While personally very civil, they seem to regard it as incompatil)le witii
their national dignity to give any account to another power regard-
ing any person whom they look upon as a Russian suhjec-t or as a
violator of Russian law. This position here taken is so fully recog-
nized by other iK)wers that even Great Britain, which has the repu-
tation of protecting her subjects with the utmost care in all parts of
the world, never interferes in behalf of one of its naturalized sub-
jects who returns to the country of his origin. In any other coun-
try she claims the right to protect him to the extent of her power,
but if he revisits the land of his birth, from which he has separated
himself by a formal act, he does this at his own risk and peril, and
the representative of the British Government absolutely refuses to
consider the case. I hope that my successor may reap some advan-
tage from my efforts in this case, but I can not say that I expect if
(For. Rel. 1894, 545.)
" But few cases of interference with naturalized citizens returning to
Russia have been reported during the current year. One Krzeminski
was arrested last summer in a Polish province, on a reported charge
of unpermitted renunciation of Russian allegiance, but it transpired
that the proceedings originated in alleged malfeasance committed by
Krzeminski while an Imperial official a number of years ago. Ef-
forts for his release, which promised to be successful, were in prog-
ress when his death was reported." (President Cleveland, annual
message, Dec. 3, 1894, For. Rel. 1894, xiii.)
See Mr. Gresham, Sec. of State, to Mr. Dasler, Aug. 29, 1S94. 198 MS.
Dom. Let. 423 ; Mr. Gresham, Sec. of State, to Mr. Jansen, .\pril 13,
1895, 201 MS. Dom. Let. 494 ; to Mr. Studebaker, June 5, 1893, 192 id.
244 ; to Mr. Izer, July 17, 1893, id. 615.
" There is no naturalization treaty between the United States and
Russia, and it is understood that the laws of that Empire forbid a
subject to emigrate or to become naturalized in a foreign country
without the permission of the Emperor, or to throw off his allegiance
until he has performed military service, under penalty of fine or
exile. Should you return to Russia you will place yourself within
the jurisdiction of these laws, and while, if you should be arrested on
a charge of infraction of some of the above-mentioned laws, the lega-
tion of the United States at St. Petersburg would, on receiving proof
of your American citizenship, intervene in your behalf, the success of
that intervention can not be foreseen.
" The entrance of alien Jews into the Empire is also forbidden, as
is also the visa of their passports by Russian consular officers."
Mr. Olney, Sec. of State, to Mr. Kassell, June 22. 1895. 2(13 MS. Dom.
Let. 39; Mr. Olney, Sec. of State, to Mr. Toroski, June 21, 1895, id. S6.
64S NATIONALITY. [§ 453.
As to the passiKJrt of application of Simon Behnnan, see Mr. Olney, Sec.
of State, to Peirce, charges Feb. 13, 1897, MS. Inst. Russia, XVII,
546.
" The position taken by the Imperial Government in Yablkowski's
case, accompanied as it is by the text of the Russian law claimed to
be applicable to such cases, constitutes the most direct statement of
the Russian contention in this regard that has as yet been presented.
" Taking the two clauses of the law together, they amount to a
claim for the punishment of a Russian subject for the imputed offense
of becoming a citizen or subject of another state, or even of entering
into the service of another state. Unlike the legislation of some
other countries, the Russian law does not decree loss of citizenship by
the fact of embracing any other allegiance, and the deprivation of
civil rights and perpetual banishment from the territory of the
Empire, coupled with deportation to Siberia in the event of the indi-
vidual's return to Russia, are only consistent with the assertion of
continuing Russian subjection and with a claim to punish him as a
subject.
" The position of the United States as to the right of expatriation is
long established and well known. The doctrine announced by us at
an early stage of our national existence has been since generally
adopted by all the European states except Russia and Turkey; and
the Turkish Government does not go so far as to assert in practice a
claim to punish a Turk for the offense of acquiring any other nation-
ality. That every sovereign state has an indefeasible right to pre-
scribe and apply the conditions under which an alien, being within its
territorial jurisdiction, may be admitted to citizenship is a proposi-
tion not to be denied and scarcely capable of any material qualifica-
tion. The legislation of the United States proceeds upon this theory.
" Under the circumstances, and under the statutes of this country,
this Government can not acquiesce in the Russian contention now
formally announced, and must continue in the future to do as it has
done in the past, and remonstrate against denial of the rights of
American citizenship to persons of Russian origin who by due process
of law have acquired our nationality, controverting any and every
attempt to treat the acquisition of our citizenship as a penal offense
against the law of the country of origin,
" It is deeply to be regretted that no treaty of naturalization exists
between the United States and Russia similar to those concluded with
other states of Europe which for many years held to the doctrine of
perpetual allegiance as strongly as the Imperial Government now
seems disposed to do. Whatever be the abstract rights of the matter
contended for by the respective parties, some form of conventional
agreement in reconcilement of their conflicting claims is alike desir-
§ 453.] EXPATRIATION : LAW OF RUSSIA. 649
able and honorable. Overtures in this sense have been made at times
heretofore without immediate result, but it is earnestly hoped that at
no distant time the two countries may be able to come to a mutually
beneficial understanding in this respect, which, while subserving
their several interests, will remove a notable cause of difference
between them in a manner befitting their traditional friendship."
Ml". Olney, Sec. of State, to Mr. I'eirce, charge d'affaires ad int. at St,
Petersburg, Nov. 4, 1895, For. Rel. IS!)."). II, 1107.
Anton Yabllvowski, a naturalized citizen of the United States, of Russian
origin, was arrested and imprisoned at Nieszawa, Russian Poland, in
1895. When arrested he bore a United States passport, which had
been viseed by the Russian consul at Danzig, Prussia. In response
to an inquiry from the United States legation at St. Petersburg. Mr.
Chichkine, speaking for the ministry of foreign affairs, stated, in a
note of Sept. 22/Oct. 4, 1895, that a judicial proceeding had been
begun against Yablkowski under article 325 of the Penal Code, for
having become " a naturalized foreign subject without previous per-
mission of his Government :"' and with a later note, Oct. 3/15, Mr.
Chichkine communicated to the legation the text and a French trans-
lation of article 325, which reads :
" Whoever absents himself from his fatherland and enters foreign service
without the permission of the Government, or becomes subject of a
foi'eign power, is condennied for such violation of duty and oath of
faithful subjection to the privation of all civil rights and to perpetual
banishment from the territory of the Empire, or, in case of vohintary
return to Russia, to deportation to Siberia." (For. Rel. 1895, II.
1099, 1104, 1105.)
Another translation, sent by Mr. Rawicz, ITnited States consul at Warsaw,
reads :
"Whoever, after leaving this country, shall enter into the military service
in another country witliout the permission of this Government, or
shall become a citizen of another country, will, for l)reaklng his alle-
giance and oath, be punished by the loss of all the rights of the state
and the expulsion from the country forever, and in case he should
return of his free will to Russia he shall be sent to Sil)eria to settle
there forever." (For. Rel. 1895, II. 1111.) For another translation,
in 1887, see supra, p. 0.3G.
Mr. Peirce, in his first report of the case, Oct. 10, 1S95, said: "In the
absence of instructions, I felt it to be more prudent to malvc a pro-
test against the continuance of these proceedings based simply upon
the principles of international law jis laid down l)y Vattel, Book II.
Chapter VIII, sections 100 to 104, inclusive, and by other authorities.
I hesitated to touch uix)n the stipulations of our treaty with Russia
of 18.32, Article X. far as this action seems to be from the sjiirit of
that compact, lest it should be claimed that this case came witliin
the limitations covc'red by the closing sentence of that article."
(For. Rel. 189.5, II. 1097.)
In a note to Mr. Cliiciikine, Sept. 28-Oct. 10, 1895. Mr. Peirce. referring
to the vise of Yabikowski's passport by the Russian consul .nt Danzig,
and also to the question of expatriation said : " I submit, tlicrefore,
that this man has l>een granted unconditional jiermission to enter
the Empire as an American citizen by the oflicial act of a duly quali-
G50 NATIONALITY. [§453.
fled officer of the Imperial Government, and that the continuance of
. proctHHlinj^s nKiilnst him. upon a criminal indictment, for the act of
becominj; a citizen of the United States, would hardly be in accord-
ance with the laws of nations as defined by the most eminent
authorities." (For. Kel, 1895, II. 1103.)
See, also, Mr. Peirce to Mr, Chichkine, Sept. 28-Oct. 10, 1895, For. Rel.
1895. II. 1102.
Mr. Chichkine, Oct. 3/15, 1895, replied: "It is precisely the character of
legality which fails in the action of which Yablkowski is accused.
The action imputed to Yablkowski would form an infraction of article
325 of the penal code. . . . Our consul-general at Danzig could
not in any iwssible way know the antecetlents of the man Yablkow-
ski, and did not have a plausible excuse to refuse to vise his passjjort,
and this can not c-onsequently prevent justice from following its
course." (For. Rel. 1895, II. ll(Vi-1105.)
Mr. Peirce reafflnnetl his position in a note to Mr. Chichkine, Oct 4/16,
1895, For. Rel. 1895, II. 1105.
With reference to this note, Prince Lobanow, writing to Mr. Breckinridge,
United States minister, Oct. 28-Nov. 9, 1895, said:
" I regret that I am not able to share your manner of seeing [the mat-
ter]. Inasmuch as it concerns a crime committed against Russian
law by an individual who had not been released from his liens of
subjection at the time he embraced another nationality. lie for-
mally violated this law by not seeking the permission of his Gov-
ernment.
" If the administrative authorities of the Empire had been acquainted
with this fact during the time Mr. Yablkowski was abroad he would
have been, according to law, condemned by default to perpetual ban-
ishment. But whereas, in this case, the Russian law would only
have attainted him in fact and in right in this manner, it had to
apply another more rigorous disposition once he returned to his
original country and the infraction was proved.
" Having delivered himself to the Russian law for crime committed
against it, which he should not have been ignorant of, the Russian
authorities legitimately arrested him. and he could not escape the
proceedings to which he was liable.
" With regard to the vise affixed by the Russian consular authority on
the passport in the possession of Mr. Yablkowski, it does not change
the question in any manner whatever." . . .
Prince Lobanow further stated that Yablkowski was detained, but not
imprisoned. (For. Rel. 1895, II. 110&-1110.)
Mr. Breckinridge incorporated the substance of Mr. Olney's instructions
of Nov. 4. supra, in a note to Prince Lobanow of Nov. 17/29, 1895,
with which he also enclosed a coi)y of §§ 1999, 2000, and 2(X)1 of the
Revised Statutes of the United States. (For. Rel. 1895, II. 1112.)
Prince Lobanow, Dec. 5/17, 1895, wrote : " This question will be the sub-
ject of a careful examination on the part of the Imperial Govern-
ment." (For. Rel. 1895, II. 1113.)
For a reix)rt of the American consul at Warsaw concerning the case in
189(5, see For. Rel. 189(i, 507-509.
January 14/2(i. 1897. the Russian foreign office informed the ITnitetl
States legation that the i)rosecution had come to an end in conformity
with the Imi>erial manifest of November 14/20, 1894, con.se(iuent
§453.] expatriation: law of Russia. 651
upon a verdict rendered by the court of appeals at Warsaw, April
9/21, 1896, and that Yablkowski had been set free April 11/23, 189(>.
The i»rosecuting attorney at Warsaw informed the United States
consul there that the documents talven from Yablkowski were attached
to the judicial proceedings under the second part of paragraph 325
of the criminal code. (For. Kel. 1897, 44G-447.)
John Ginzberg, a naturalized citizen of Russian origin, was ar-
rested in Russia in 1894. It was stated by the Russian authorities
that the cause of his imprisonment was a charge of military desertion,
but he was also described by them as a " Russian subject." " With
reference to the possibility of his being prosecuted for having ac-
quired American citizenship, Mr. Olney, Secretary of State, in an
instruction to Mr. Peirce, charge d'affaires ad interim at St. Peters-
burg, said : '' The Government of the United States can never acqui-
esce in any claim of any other government to penalize the act of
naturalization when lawfully granted within our jurisdiction to one
of its former subjects or citizens." ''
Sept. 9, 1896, the criminal court of Minsk found Ginzberg guilty
" in that, being a Russian subject, he left his native land and went to
America, and on xVugu.st 10, 188G, became, without permission of the
Government, a naturalized citizen of the United States of America,
and that in the autumn of 1894 he voluntarily returned to Russia."
He was therefore sentenced, under § 325, part 1, of the Penal Code, to
deprivation of all civil rights and perpetual banishment from the
Empire, and to payment of costs, should he be able to pay them. It
was adjudged that the documents relating to his identification, which
Avere issued by the Government of the United States, but were then
held by the court, should be returned to him.''
Ginzberg re<juested the legation of the United States at St. Peters-
burg to prefer a claim in his behalf against the Russian Government
for 730 days' detention at $3 a day. The legation submitted this
request to the Department of State, which decided to " await further
and more definite information " before expressing an opinion upon
the claim.''
The embassy secured for Ginzberg an oj^portunity to work his
passage from Libau to Antwer}) and turned over to him 95 rubles,
the amount of a draft which had been received for liim from the
United States. An oflicial of the foreign office remarketl that (iinz-
berg had, according to the usual i)ractice, '" been very leniently dealt
with." In a report, subsequently to the departure of Ginzberg from
«For. liel. 189"), II. 1081, 108.~>, 108(i.
6 For. Kol. 189.1, II. 1091.
f'For. Kel. 189<>. ."»12-r>13.
d Mr. Olney, Sec. of State, to Mr. lireckinridge, min. to Kussi.-i. Oct. 27. 189«t,
For. Ilel. 189(5, 509, 511.
652 NATIONALITY. t§453,
Kussia, Mr. Hivckinridge said: "I may remark that an apparent
result of the coiitimious and earnest efforts of the past two or more
years is some amelioration of the unbending severity that previously
marked the policy of the Kussian Government in cases of this kind.
Until, however, the still ineffectual efforts to effect a conventional
arrangement with Russia, upon the subject of expatriation, are more
successful, our citizens of llussian origin, unless with previous Rus-
sian consent, expose themselves to the gravest hardship by returning
to the Empire." "
The Department of State in reply observed that the " happy dis-
position " of the case might " illustrate the advantage of dealing with
such nuitters in a friendly way, without unnecessary argument on the
principles involved, as to which the views of the United States and
Russia are apparently irreconcilable.'' *
Henry Topor, a naturalized citizen of the United States of Rus-
sian origin, who was arrested in Russia for having emigrated and
become naturalized without permission, was, on its appearing that
he was mentally misound, placed in an insane asylum, from which he
was released on his relations furnishing him assistance and an escort
to the United States.
For. Rel. 1890, 523-529.
" The published correspondence for a number of years back has
shown the persistence of the United States in endeavoring to obtain
for its citizens, whether native or naturalized and irrespective of their
faith, the equality of privilege and treatment stipulated for all Ameri-
can citizens in Russia by existing treaties. Holding to the old doc-
trine of perpetual allegiance; refusing to lessen its authority by
concluding any treaty recognizing the naturalization of a Russian
subject without prior Imperial consent; asserting the extreme right
to punish a naturalized Russian on return to his native jurisdiction,
not merely for unauthorized emigration, but also si^ecifically for the
unpermitted acquisition of a foreign citizenship; and sedulouslj'
applying, at home and through the official acts of its agents abroad,
to all persons of the Jewish belief the stern restrictions enjoined by
Russian law, the Government of Russia takes ground not admitting
of acquiescence by the United States because at variance with the
character of our institutions, the sentiments of our people, the jjro-
visions of our statutes, and the tendencies of modern international
comity.
■ Mr. Rreokjnridge. V. S. iiiin., to Mr. Sliornian, See of State, March 8, 1897.
For. Kel. 1897, 4:{5, 4:5().
f> Mr. Sherman, Scm-. of Statts to Mr. Hreckinridge, min. to Russia, March 25,
1897, For. Rel. 1897, 43G.
§ 453.] EXPATRIATION : LAW OF RUSSIA. 653
" Under these circumstances conflict between national laws, each
absolute within the domestic sphere and inoperative beyond it, is
hardly to be averted. Nevertheless, occasions of dispute on these
grounds are happily infrequent, and in a few worthy cases, whero
the good faith of the claimant's appeal to American protection has
appeared, the friendly disposition of Russia toward our country and
people has afforded means of composing the difference."
lleport of Mr. Oluey, Sec. of State, to the I'resideiit, Dee. 7, 189(5, For.
Rel. 1896, Ixxix.
Early in 1897 Mr. Frederick G. Grenz, a naturalized American citizen of
Russian origin, was arrested in Russia on a charge of having re-
nounced his allegiance without permission, under article .325 of the
Penal Code. He was born in Russia in 18.54 and emigrated to the
United States in 1888, having performed or been exemi>ted from mili-
tary service and ha\ing received permission to leave Russia. He
returned to Russia on a brief visit, for the purpose of seeing his aged
mother. Mr. Heenan, American consul at Moscow, petitioned the
court before which the case was pending to dismiss the case, es-
pecially as there was no question of military duty involved. When
the case came to trial Mr. Grenz was unconditionally accpiitted, and
his money and papers were returned to him. (Mr. Breclcinridge, min.
to Russia, to Mr. Shernnui, Sec. of State. No. 490, Feb. 20, 1897, 50 MS.
Des]). Russia ; Mr. Sherman to Mr. Breckinridge. March 10, 1897,
MS. Inst. Russia, XVII. 5.53; same to same, April 19, 1897, id. .500;
Mr. Breckinridge to Mr. Sherman, No. 551, :May 12, 1897, 50 MS. Desp.
Russia ; Mr. Sherman to Mr. Breckinridge, No. 429, June 18, 1897,
MS. Inst. Russia, XVII. 587.)
With a dispatch of March 11, 1897, Mr. Breckinridge, minister of
the United States at St. Petersburg, enclosed to the Department of
State a note of Count Lamsdorff, of Feb. 20-March 4, 189T, replying
to certain inquiries as to the Russian law concerning ox})atriation.
Although the reply did not fully state how long the claims of the
Empire continued to attach to the foreign-born descendants of Rus-
sian subjects, ]\fr. Breckinridge said he liad been orally informed by
the legal adviser of the foreign office that they continued without
limit as to generations of descent, regardless of the place of birth. It
was understood that a law had for sometime been under consideration
to repeal that i)art of the law which extended " the prescribed claims
and 'penalties to descendants of claimed Russian subjects born
abroad."
For. Rel. 1897. 4.'19, 440.
Count Lamsdorff's note was accomi)anied with the following memoran-
dum, in which various articles of the Russian law are reproduced :
"Question. Does the change of allegiance without consent entail loss of
I)ro])erty as well as loss of civil rights and liability to banishment V
"Answer. .Vrticles .'?25 and 32(5 of Ihe Criminal Code:
"Article 32.5. Whoever, absenting himself from the fatherland, enters Into
the service of a foreign power without the permission of tlie Govern-
654 NATIONALITY. [§453.
iiiont, or bpoomos the subject of n foi'OiRH power, is liable, for tbls
violation of liis duty and oatb of fidelity to tlie loss of all bis civil
rijibts and perpetual banisbnient from tbe Enii)ire, or, if afterwards
be returns voluntarily to Ilussia, to deiwrtatiou to Siberia.
"Article 320. Wboever, absenting liiniself from tbe fatberland, does not
return to it upon being invited to do so by tbe Government,. is equally
liable, for tbe infraction, to tbe loss of all civil rigbts and to per-
petual banisbnient from tbe Empire, if witbin tbe term fixed at tbe
option of tbe court be does not sbow tbat be bas been imi)elled by
circumstances independent of bis will or, at tbe least, extenuating
circumstances. Up to tbat moment be is considered as absent, dis-
appeared from bis domicil, and bis property is placed under guard-
iansbip, according to tbe regulations establisbed to this effect by tbe
civil laws.
" The property of a pei'son sentenced to the loss of civil rights is not
confiscated, but passes to bis legitimate heirs under the same laws
which would be applied in tbe case of his natural death. The heirs
can also claim ix>ssession of all property, which might come by
inheritance to the culprit after bis condemnation.
" The wife of tbe person deprived of civil rigbts has the right to claim a
divorce. Furthermore, tbe culprit loses his paternal authority over
his children born prior to bis condemnation.
"Articles 24, 20, 27, 28 of tbe Penal Code :
"Article 24. The loss of civil rigbts does not affect the wife of the convict
nor his children born or conceived prior to his condemnation, nor
their descendants.
"Article 26. Deportation to Siberia entails tbe loss of all family and
property rigbts.
"Article 27. Tbe loss of family rights consists in the termination of
paternal authority over tbe children born prior to the condemnation,
if the children of tlie convict have not followed him into deportation,
or if they left him afterwards.
"Article 28. Following the loss of property rights, all property which
belonged to the convict sentenced to enforced labor or to deportation,
passes, from tbe day of execution of tbe sentence, to bis legal heirs,
in such a manner as it would pass in tbe case of tbe natural death
of tbe convict.
"The proceedings and sentence for infraction provided for in article 325
of tbe Penal C'ode follow tbe ordinary course of criminal proeedure.
"The examining judge proceeds in an investigation upon tbe oHicial evi-
dence of tbe police and local authorities or upon the reiiuisition of
tbe procureur. Persons charged with illegal absence from tbe father-
land are transferred before a court of justice after arrest at the
frontier or on tbe territory of tlie Empire.
"They may, however, be prosecuted by default if they do not answer to
the suniinons of tlie court after legal citation to aiipear bas Iieen
inserted in the newspai)ers or addressed to tbe delinquent through
our dii)loiiiatic and consular agencies.
"Question. If tbe property be confiscated is it only during tbe life of the
offender, or does it remain forever alienated from his heirs?
"Answer. See the reply given above.
" Question. What, if any, are the penalties provided for those who emi-
grate in childhood or during their minority and subsequently become
§453.] expatriation: law of Russia. 655
citizens or subjects of a foreign country without imperial consent?
And wliat is tlie period of minority?
"Answer. Tliey entail all the consequences mentioned in the first reply,
if they do not take the steps necessary when they attain their
majority, which is fixed at 21 years of age.
"Article 221, Vol. X, first part of Civil Code :
"Article 221. The rights to fully dis])ose of one's property, to contract
obligations are not acquired before coming of age, that is to say,
before 21 years of age.
" Question. Is military service claimed if it matures while a subject is
abroad and after he has sworn allegiance to another country? And
what are the penalties for failui'e to return and perform such service?
"Answer. By virtue of article 3 of the Regulation of Military Service,
persons above 15 years of age can not ask supreme permission to
avoid the duties incumbent upon Russian subjects before having
acquitted their military obligations. Persons who have attained the
age of 20 years and over, who sojourn abroad, are notified to respond
to the military service. In case they fail to respond to this call,
they entail the penalties indicated in the above-mentioned article 326
of the Penal Code.
" Question 5. What is the status, in the foregoing respect, of the children
and further descendants born in the country to which the father
may have sworn allegiance or in which he may have acquired citi-
zenship, as herein contemplated?
" Question 0. Can any of these descendants inherit property or in any way
acquire title to property in the Empire?
"Answer to questions 5 and G. The children of a Russian subject, born in
legitimate marriage, even in the case their father may have lost his
civil rights, are considered as Russian subjects and have a right to
hold property in the Empire, whether by succession or by auy other
legal means of acquisition."
The Russian legation at Washington having informed a naturalized
citizen of the United States of llussian origin, who sought permission
to revisit his native land, that " every one Avho left Russia before his
enlistment in the army on his return to that country must serve his
term, which is five years," the Russian GoA'crnment, in response to an
inquiry by the United States, stated that the five years' military serv-
ice was " not in lieu of the penalties established by article 325 of the
Penal Code for unlawful abandonment of Russian subjection. All the
subjects of the Empire, without distinction of religion, are held to
serve during that time under the flag."
Count Lamsdorff, Imp. ministry of for. aff., to Mr. llikhcock. U. S. min.,
Dec. 8/20, 1S97, For. Kel. l.S'.)7, 4;;8, 4.-5().
" I have the honor to inform you that it is a punishable offense
under Russian law for a Russian to become a citizen of any other
country without Imperial consent, and that, consequently, this (Jov-
ernment can not encourage American citizens whom the law might
affect to expect innnunity from its operations if they i)lace themselves
within its sphere.
(>56 NATIONALITY. [§ 454.
"If, in addition, Mr. Haskell is of the Jewish faith, he would be
prevented from entering Russia also by the Russian law wdiich pro-
hibits tlie Russian consular officers abroad from visaing, Avithout
authority previously obtained, the passports of Hebrews, except in the
case of certain exempted classes, which are bankers and chiefs of
commercial houses of known importance, and brokers, representatives,
clerks and agents of said houses having ])apers showing authority to
rej)resent them. Tn these cases the consular officers are directed to
notify the minister of the interior that they have visaed such pass-
port."
Mr. Hay, Sec. of State, to Mr. Belmont, Jan. 25, 1900, 242 MS. Dom.
Let. 391.
" The Department is just in receipt of a despatch from our minister at
St. Petersburg stating that Mr. Maries Nathan, an American Hebrew,
had received permission from the minister of the interior to visit
certain places in Russia, his request for that permission having
betMi supported by the good offices of the United States legation."
(Mr. Adee, Second Assist. Sec. of State, to Mr. Aarons, Nov. 9, 1897,
222 MS. Dom. Let. 290.)
" Petitions for release from Russian allegiance should be addressed by the
applicant directly to the minister of the interior at St. Petersburg."
(Mr. Hill, Assist. Sec. of State, to Mr. Monkiewicz, March 10, 1899,
235 MS. Dom. Let. 382.)
(14) SERVIA.
§ 454.
" The information given below is believed to be correct, yet is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
" Ordinarily all subjects of Servia are expected to perform at
least two years' military service after they attain manhood.
" If a subject of Servia emigrates before he has fulfilled his mili-
tary obligations, the Servian Government does not recognize a change
of nationality made without the consent of the King, and ujwn his
return he may be subject to molestation.
" If, however, he performed his military service before emigration,
his acquisition of naturalization in the United States is recognized
by the Servian (lovernment.
" There is no treaty between the United States and Servia defining
the status of naturalized Americans of Servian birth returning to
Servia."
Circular notice, Department of State, Washington, April 10, 1901, For,
Ilel. 1901, 455.
§455.] EXPATBIATION : LAW OF SPAIN. 657
(15) SPAIN.
§ 455.
" Eeferring to your enquiry of January last, I have now to inform
you that, according to a note of the Spanish minister of state, en-
closed in despatch No. 270, from Madrid, the provisions of the fol-
lowing decree of Nov. 17, 1852 (art. 45), still apply to the case of
a Spaniard who becomes naturalized, without complying with the
law of military service, and returns to Spain in the character of for-
eigner, viz:
" ' A foreigner naturalized in Spain and a Spaniard naturalized
in the territory of another power without the knowledge and author-
ity of their respective governments, shall not be exempt from the
obligations belonging to their original nationality, although the
Spanish subject in other respects loses the quality of Spaniard in
accordance with the provisions of par. 5, art. 1 of the Constitution
of the Monarchy.' "
Mr. Bayard, Sec. of State, to Mr. Blanco, Nov. 23, 1887, 1G6 MS. Dom.
Let. 201.
In a dispatch to Mr. Bayard, No. 241, Aug. 19, 1887, Mr. Strobel, charge
d'affaires ad int. at Madrid, said :
" In accordance with instructions, an official statement has been re-
quested of the minister of foreign affairs of the laws of Spain now
in force ' affecting the status or liabilities of former subjects, once
owing military service. Who have been naturalized in foreign coun-
tries, should such persons visit their native country.'
" It may not be improper in the meantime to give what my own exam-
ination shows the law on the subject to be.
"Article I. of the constitution of 187G, now in force, says : ' The quality
of Spaniard is lost by naturalization in a foreign country . . .'
"Article 14 of the conscription law of July 11, 188.5, also in force, makes
the following provision : ' Only Spaniards shall be admitted to serv-
ice in the army in any position whatever.'
"It seems, therefore, that a Spaniard naturalized in a foreign country
is not only exempt, under any circumstances, from military service
In Spain, but is actually prohibited therefrom.
"I have assumed that the woi'ds, 'once owing military service' in the
instructions referred to, mean simply 'liability' and not 'actually
drafted.'
"In the latter case, the question of desertion or criminality inider mar-
tial law might arise." (For. Kel. 1887, 008.)
As a matter of fact, Spain habitually recognized, in rui)a. the full effect
of American naturalization in the case of her native subjects wlio
had been admitted to citizenship in the Fnited States.
For an exhaustive examination of the law of Spain, see Moore. Int.
Arbitrations, III. 2()01-2(il.H.
See, also. Mr. Evarts, Se<-. of State, to Mr. Fairchild. min. to Spain.
No. 20, May 11, 1880. 18 MS. Inst. Spain, 471-475.
H. Doc. 651— vol 3 42
G58 NATIONALITY. [§ 4^^-
(1(») SWITZKRLANIJ.
(a) SWISS i-Aw OF 1876.
§ 456.
By article 0 of the Swiss Federal law of July 3, 1876, concerning
the acquisition and reniuiciation of Swiss citizenship, a Swiss citizen
may renounce his citizenship if (1) he has no domicil in Switzerland ;
(2) he is enjoying full civil rights inider the laws of the country
where he resides; (3) he has already acquired citizenship in another
country, or the assurance of its being granted, for himself, his wife,
and minor children, when they are domiciled or living with him.
By article 7 the declaration of renunciation nnist be submitted in
writing, accompanied with the required statements, to the cantonal
government, which will notify the proper communal authorities, in
order that notice may be given to any interested parties; and a term
of four weeks is allowed for the presenting of objections. If objec-
tions are made, the decision upon them is rendered by the Federal
Tribunal according to articles 61-63 of the law of June 27, 1874, in
regard to the organization of the federal judiciary.
By article 8, if the conditions prescribed in article 6 are fulfilled
and no objections are presented, or if objections Avere made, but have
been judicially overruled, then the authorities authorized for the pur-
pose by cantonal law will pronounce the discharge from the cantonal
and communal citizenship. This discharge includes the loss of Swiss
citizenship, and takes effect from the date of its issue and delivery to
the applicant; and it extends to the wife and minor children, when
they are domiciled or living with the applicant, if no special excep-
tions were made with regard to them.
By article 9 provision is made for the readmission to Swiss citizen-
ship of persons who have lost it.
Articles 1-5 of the law relate to Swiss naturalization. Article 5
declares " persons who, in addition to being SAviss citizens, are citi-
zens of a foreign countr}^ are not entitled to the privileges and the
protection accorded to Swiss citizens during their residence in such
foreign state."
By article 10, all provisions of federal or cantonal legislation con-
flicting with the law of July 3, 1876, are abrogated.
Mr. Rublee, eliargo d'affaires to Switzerland, to Mr. Fish, Sec. of State.
Aug. 31, 1870, enclosing a copy and translation of the law in question.
(For. Kcl. 1S7(), ."><i7.)
"I believe that tho remedy | for difficulties growing out of the detention
in Switzerland of the property of natives of the country who have
been naturalized in tlie United States] would be best attained were
every Swiss, inunediately upon his iiAturalization in the Unitetl
States, to comply, so fur as within him lies, with the provisions of the
§ 457.] EXPATRIATION : LAW IN SWITZERLAND. 659
Swiss federal law of July :',, 187(5 . . . and that in every case
where such compliance was thwarted by the action of the connnunal or
cantonal authorities, the lej^ation should he instructed to intervene
diplomatically, and, failinj^ to succeed, it shoula he empowered, after
reference to the Department of State, to carry the appeal to the
Tribunal Federal." (Mr. Fish, charj^e d'affaires to Switzerland, to
Mr. Evarts, Sec. of State, Oct. 18, 1879, For. liel. 187U, 973, 974.)
(b) DU'I-OMATIC DISCUSSIONS.
§457.
" Your dispatch No. 218, of the IStli iikinio, has boon received. It
rehites to the detention by the Swiss local authorities of property in
Switzerhmd claimed by natives of that country naturalized in the
United States. The reasons assigned for that detention are believed
to be so insufficient practically, morally, and legally that it is hoped
the Federal (lovernment of that country will lose no time in applying
its authority ov influence towards redressing the grievance.
" It is noticed with regret that the Swiss local authorities, at least,
are disposed to maintain the doctrine of perpetual allegiance by de-
nying the right of a native of that country to become naturalized
elsewhere Avithout their consent.
"This pretension has always been regarded here as extravagant,
and as such has been resisted, so that several of the most important
European countries with monarchial governments, which were most
strenuous in sui)porting it, have receded from their claims, and have
concluded naturalization treaties with the United States. Switzer-
land as yet has no such treaty, but the convention of 1850 between the
United States and that country contains stipidations which seem
applicable to the present case and adequate for disposing of it con-
trary to the views held in that (puirter.
" It appears from your dispatch that one of the claims of the com-
munal authorities is that they can recognize no native of Switzerland
as a citizen of the United States who shall not have obtained their
consent to his naturalization. This pretension is in direct conflict
Avith the fourth article of the treaty, which says that in order to estab-
lish their character as citizens of the United States of America, per-
sons belonging to that country shall be bearers of passports certifying
their nationality. If, therefore, the nationality of any Swiss natur-
alized here, who may visit his native country with such pas.sport,
shall there be (piestioned, that act must be looked upon as a flagrant
violation of the treaty, which could not be acquiesced in.
"Again, the fifth article stipulates in substance that the heirs of a
Swiss d(>ce(leut. being citizens of the United States, whether native
or naturalized, shall inherit and dispose of the property of such
decedent at their pleasure.
660 NATIONALITY. [§ 457.
"An aiithonticatod copy of the jiulj^mont of the court which may
have naturalized a Swiss citizen must be regarded as conclusive proof
of that act in regard to all such naturalized Swiss who may not visit
their native country.
"As explicit abjuration of allegiance to his native country is by law
required of every foreigner naturalized here, the fact of such abjura-
tion is mentioned in the record. It is presumed, therefore, that when
a duly attested copy of such record is presented to the authorities in
Switzerland, the sufficiency of the proof which it contains will be
acknowledged without hesitation.
" You intimate that the supreme court of the Confederation might
decide the question conformably to the views entertained here, and
suggest that a test case be prosecuted for the purpose of obtaining
their opinion. This course it Avould be difficult and inconvenient for
this Government to adopt, but it might be the most eligible for a
claimant to sufficient property in that country to incur the hazard
and exjiense which would attend it."
Mr. Evarts, Sec. of State, to Mr. Fish, min. to Switzerland, Nov. 12, 1879,
For. Kel. 1880, J)52.
Mr. Fisli, in his No. 218, Oct. 18, 1879, to which tlie foregoing was a reply,
referring to the refusal of recognition of American naturalization in
the case before him, said : " This refusal of the communal authorities
was supported by the cantonal government, and appears even to have
had the sanction of the Federal Government, inasmuch, as the latter
transmitted it to the legation. It was not until the diplomatic repre-
sentations of the legation had been brought to bear upon these objec-
tions that the unreasonable re(iuiremeuts of the comnmne and canton
were allayed." (For. Kel. 1879, 973.)
"There is no law of the Canton of Zurich [on nationality and military
service! referred to by Mr. Fish at p. 79.3, For. Kel. for 1879. What is
referred to is the action of the connnunal and cantonal authorities in
enforcing the federal law." (Mr. Broadhead, min. to Switzerland,
to Mr. Olney, Sec. of State, No. 87, Aug. 1(3, 1895, 29 MS. Desp. Switz.)
Albert Meyer Avas born in Zurich in 1842. He emigrated at the
age of eighteen, and in 1864, when twenty-two years old, came to the
United States and settled in the city of New York, where he entered
into business as a merchant and continued to reside. In due time he
became a naturalized citizen of the United States. Some years later
the firm of which he was a member became embarrassed and granted
certain preferences to creditors. A firm in Zurich instituted civil
proceedings in New York to have these preferences set aside, but
the court u])held them as lawful. Subsequently, the Swiss firm
brought a criminal action against Mr. Meyer at Zurich, based on the
same acts. I'he .Vmcrican legation at Heme was instructed, July 14,
1882, to bring the subject (o tlie attention of the Swiss Government.
In another instruction, December 19, 1882, the Department of State
said:
§457.] expatriation: law in Switzerland. 661
" While this Government does not for a moment question the right
of that of Switzerhind to attach such conditions as it may deem
proper to the emigration of its citizens, and while it also admits that
an American citizen who, while in Switzerland, commits an offense
against the criminal laws of that country, may properly be held to
answer for such offense before the courts of Switzerland, it cannot,
give its assent to a doctrine so fraught with danger to the rights of
American citizens as that which holds that a citizen of the United
States of Swiss nativity may be tried before the criminal courts of
Switzerland for acts done or committed within the territories of the
United States. That the matter for which Mr. Meyer was held crim-
inally liable in Zurich, is not only not criminal in this country, but is
authorized by its laws, simply aggravates this particular case.
" Had his act constituted an offense against the criminal code of
the United States or against the laws of the State of New York, this
Government would still hold that he was amenable for such offense
in the courts of the United States, or of the State of New York, as
the case might be, and in these courts only.
" The naturalization of an alien in the United States is the vol-
untary act of the party himself. Under the laws of the United
States, the consent of the Government of the countr}^ of his origin is
not made a condition of his admission to citizenship, and when he has
once attained tlie character of a citizen of the United States, it is
held by the Government and laws of the United States to adhere
to him with its proper rights and privileges, not only within the
United States, but in any foreign country in which he may be, not ex-
cepting the country of his nativity or origin."
Mr. Frelinghuysen, Sec. of State, to Mr. Cramer, niin. to Switzerland,
No. 17, Dec. 19, 1882, MS. Inst. Switzerland, II. 157.
October 17, 1882, Mr. Cramer reix)rted that he had received from the
Swiss Government an extract from the records of the courts of
appeal and cassation t)f the canton of Zurich, and also a copy of a
communication from the supreme court of the canton to the executive
council, dated September IC), 1SS2, by which it appeared that Mr.
Meyer had been fcmnd t^uilty and sentenced to a year's imprisoinnent.
Mr. Cramer stated that it further appeared from the last-mentioned
document that Mr. Meyer was held still to be a citizen of Swit-
zerland, because he had not surrendered the iMghts and privileges of
Swiss citizenship, and that the high federal council, in view of the
action of the courts, was unable to interfen* in the case. It appears
that when the sentence was passed Mr. Meyer was not in Switzer-
land. (Mr. John Davis, Act. Sec. of State, to Mr. Bliss, .Tan. 2.">,
1883, 14.5 MS. Dom. Let. 821.)
July 28, 188,3, Mr. Cramer was instructed to call the attention of the Swiss
Government to the position of the United States with regard to the
protection of all its citizens abroad, whether native or naturalized,
and to say that the President exi)ected and entertained the hope that
the Swiss Government would tind meaus to relieve Mr. Meyer from
662 NATIONALITY. [§ 457.
the sentonco Mngiiig over him, so that he mtglit visit that country,
wlu'iH'ViT imsMicss called or inclination i)ronii)ted him, with the
same freedom from molestation as a citizen of Switzerland would
enjoy in the United States. (Mr. Frelinghuysen, Sec. of State, to
Mr. Cramer, nun. to Switzerland, No. 47, July 28, 1883, MS. Inst.
Switzerland: II. 187.)
Suhsequently, on a suggestion of Mr. Meyer's counsel that a renewal of
the protests against the sentence might prove effectual, Mr. Freling-
huysen said: " Ohserving that we do not admit the contention of
Switzerland in the ahove case, I have to ask that any action war-
ranted by previous instructions, and the circumstances, may be
taken at the proper time. An understanding as to this class of ca,ses
is very desirable." (Mr. Frelinghuysen, Sec. of State, to Mr. Cramer,
min. to Switzerland, No. 72, Jan. 24, 1884, MS. Inst. Switzerland,
II. 207.)
Carl Heinrich Weber, of Zurich, born in 1845, emigrated to the
United States in 1873. He was then, and afterwards continued to
be, under guardianship in Switzerland. In 1879, having acquired
American citizenship, he applied to the authorities of the canton of
Zurich for his release from Swiss citizenship. His application was
opposed by his sister and his guardian, as well as by the orphans'
court of Zurich, and later by the city council of Zurich. The case
was ultimately brought before the high federal court, which, while
admitting that, as a question of principle, a ward could not legally,
change his domicil without his guardian's consent, found as a fact
that Weber's change of domicil was made with his guardian's tacit
consent, and requested the authorities of the canton of Zurich to
release him from his cantonal and town citizenship.
For. Kel. 1880, G89-C91.
" It will be necessary for you to assert your claim to property in Swit-
zerland through legal proceedings in its com-ts, in the course of which
you will be able to avail yourself of the foregoing precedent. If
such proceedings should be delayed or obstructed, especially on the
gi'ound of y(mr American citizenship, it would be proper for you to
communicate fully all the facts to this Department, which, upon
proof of your naturalization, would then take such action, if any,
as it properly might under the circumstances." (Mr. Foster, Sec.
of State, to Miss Fiillemann, Dec. 20, 1892. ISO MS. Dom. Let. r>o;»,.)
See the case of Jacob Zinunermann, For. Rel. 1879, 973; For. Rel. 1880,
952.
In the case of Fred Tschudy, a native of Switzerland, who had
been naturalized in the United States and, on his return to Switzer-
land, was ordered to report for military duty, the minister of the
United States at Berne, while maintaining the views of his Govern-
ment as to the right of expatriation, also argued that the provisions
of Article II. of the treaty between the United States and Switzer-
land of 1850, exempting " the citizens of one of the two countries,
§ 457.] EXPATRIATION : LAW IN SWITZERLAND. 663 .
residing or established in the other," from military service, should,
in the absence of any qualification or explanation of the word " citi-
zens," be held to include all citizens, whether native or naturalized, of
either Government.
Mr. Broadhead, min. to Switzerland, to Mr. Laclienal, miii. of foreign
affairs, Aug. 17, 1894, For. Rel. 1804, 085.
See, also, Mr. Uhl, Act. Sec. of State, to Mr. Rroadliend, niin. to Swit-
zerland, Sept. 12, 1894, For. Rel. 1894, G8G, approving Mr. Broad -
heaid's presentation of the matter.
" Each state is entirely free to regulate as it suits it the extent and
effect of its right of citizenship, as well as the conditions upon which
it can be acquired and lost. Then the legislation in this matter pro-
vides expressly that a native-born Swiss can not lose it, by the fact
even of having acquired a foreign nationality, but only when the
interested party has renounced by a declaration in good and due
form his quality as a Swiss citizen, and has obtained the authoriza-
tion ad hoc of competent authorit3^ (Constitution Federal, Art. 44,
Federal Law of 3d July, 187G, arts. G, 7, and 8.)
" The interpretation which you believe you are able to give to art. 2
of the treaty in support of the demand of Mr. Tschudy can not be
admitted in this case. The principle which inspires that article (2)
is found in effect in almost all the treaties of settlement concluded
between Switzerland and many powers, and no state has ever pre-
tended by that to benefit persons who possess a double right of
citizen.ship.
" It is contrary to the law of nations that a foreign state should
intervene in the relations of a state with one of its own subjects, and
it is for that reason that if Mr. Tschudy, being in the United States,
found himself in a conflict of some nature with the government of
that country, the federal council would not believe that it had the
power to interi)ose, and would not fail on the contrary to acknowl-
edge the American nativity of the above named {V indigetutt Ajneri-
cain du susnomme). We can then but repeat that as long as Mr.
Tschudy has not lost the quality of a Swiss citizen by a formal
renunciation and admission by competent authority, he \\\\\ not be
authorized to avail himself in Switzerland of the quality of an
American citizen and must remain submissive to the military obliga-
tions, or their etiuivalent, in force in his original country."
Mr. Lachonal, Swiss niin. of for. aflf.. to Mr. Broadlioad. .\ni. min.. Sept.
10, 1S04. enclosed with Mr. Broadhead's No. ;">, Sept. IS. 1S<.»4, 20 MS.
Desp. Switzerland.
There are no cantonal laws on the subject of military service in
Switzerland. The cantcmal authorities are authorized to enforce the
federal laws, which, in regard to the renunciation of allegiance and
military service, are supreme.
()A4 NATIONALITY. [§ 457.
Mr. Brondheatl, min. to Switzerland, to Mr. Olney, Sec. of State, No. 87,
Auk. Ki. 'l^'-^^>, -'> MS. IX>sp. Switzorlaiul.
With this (lisjiatch Mr. liroadhoad (Miclosod a translation of a synopsis
furnlshe<l him hy the Military Department, Augnst 7, 1895, of the
military laws of Switzerland so far as they relate to foreigners
residing in that country and to natives of Switzerland who may
have been naturalize*! abroad.
By this synoi)sis it appears that by paragraph 1, article 18, of the Swiss
Federal Constitiition of May 27, 1874, every Swiss citizen is held to
military service. By the law of November IS, 1874, this service
begins at the age of twenty, and the obligation to serve lasts till
the end of the forty-fourth year. By article 1 of the law of .Tune 28.
1878, every Swiss citizen of the requisite age, whether living in or
outside of Switzerland, who does not personally perform military
service, is subject to a compensatory tax. and foreigners establishe<l
in Switzerland are equally subject to this tax unless they ai*e ex-
empted by international treaties or belong to a state in which Swiss
citizens are bound neither to military service nor to the payment
of an equivalent tax.
With the same dispatch Mr. Broadhead also enclosed printed copies in
French and German of a circular issued by the Swiss Federal Council,
July 19, 1894, to the Confederated States, concerning the tax for
exemption from military service of Swiss citizens living in the United
States and of citizens of the United States domiciled in Switzerland.
In this circular it is stated :
1. Swiss citizens who are established in the United States or who have
I'eturned from that country to Switzerland are subject, from May 1,
1894, to the tax for exemption from militai'y service, and are con-
sequently to be inscribed on the rolls of that tax unless they can
prove that they have paid a similar tax in the United States.
2. Citizens of the Unitetl States established in Switzerland are, according
to the circular, exempt from the military tax. but they are to cease
to enjoy that exemption whenever Swiss citizens established in the
United States are sul)jected to the payment of a military tax.
Mr. Broadhead stated that, according to the decree of the Federal Council
of February 5. 1880, rule 1, as above stated, applied to Swiss citizens
whether they had been naturalized in the United States or not. This
decree reads as follows :
"1. The Swiss citizen who resides in a foreign country and is bound to
military service, or to pay a corresponding tax, whether because he
is lilcewise a citizen of that country, or for any other reason, is not
held to pay the military tax in Switzerland for the time during which,
residing in a foreign land, he has performed his military duties.
"2. On the contrary, the Swiss who is at the same time a citizen of a
foreign country, in which he is not bound by any military oath,
can not invoke his double nationality so as to disjiense with the
payment of the military tax in Switzerland even for the time during
which he has sojourned in a foreign land."
For corresiKindence in relation to the military tax prior to Mr. Broad-
head's No. 87 of August 10, 1895, see For. Rel. 1894, 078-082.
'* I have to acknowledge the receipt of your dispatches, Nos. 7.5 and
76, of the 15th and 18th ultimo, . . . having i^articular reference
§ 457.] EXPATRIATION : LAW IN SWITZERLAND. 665
to the case of Mr. F. A. Schneider, . . , who has been ordered
by the military commander of the district of Zurich to report immedi-
ately for physical examination and military duty. . . .
" Mr. F. A. Schneider is, as you have previously reported in your
dispatch, No. 45, of October 12, 1890, a native-born citizen of the
United States, his father at the time of his birth being lawfully
invested with the full and complete character of an American citizen
by naturalization. . . . Whatever may be advanced in a contrary
sense as respects the dual status of a person acquirinoj another alle-
giance without the consent of the state of his origin, this Government
can not for an instant admit that such a contention is applicable to
the case of a native-born citizen. So far as the knowledge of this
Department exists — over more than a century of intercourse with ite
sovereign equals — no such contention has been maintained by any
other Government, and if suggested has been emphatically denied.
" Even upon the careful statements you have recently made con-
cerning the Swiss rule of a cantonal citizenship this extraordinary
and exceptional doctrine of inherited allegiance appears nowhere
distinctly formulated, and if it be put forward as a doctrine it not
only finds no color in the received teachings of international law, but
it is in itself faulty because apparently unlimited. There seems to be
no end to the chain of inherited subjection which must ensue should
the Swiss premise be admitted, for if a native-born son of a citizen of
the United States can be claimed by Switzerland as a citizen because
his father was formerly a Switzer, the grandson and the descendant
of the remotest generations may with equal reason, or rather with
equal unreasonableness, be claimed as Swiss citizens. . . .
" It seems that he [Mr. Schneider] is held to service purely and
simply on the alleged score of owing paramount allegiance to Swit-
zerland. In this respect Article I. of our treaty with Switzerland of
November 25, 1850, appears to be distinctly contravened. At the time
that treaty was concluded there was no question touching the attitude
of the United States in the vital regard of citizenship. . . .
Whatever may be argued as to the dual status of an individual for-
saking his native land and embracing the allegiance of another gov-
ernment, or whatever claim may be made that the treaty between the
United States and Switzerland may not specifically apply to those
precise cases, there can be no doubt that the TTnited States purposed
nnd that Switzerland assented to the full i)rotection of all native-
born citizens of the United States. It is for the benefit of such that
our treaties were and are concliuled, and for tlieir benefit we nuist
claim their full application. This is not a question of an even coun-
terpoise of claim between two couflicting jurisdictions in which each
may in practice be suj)reme to enforce its own law over all affected
866 NATIONALITY. [§ 457.
persons voluntarily resorting to its territories. Any theory of an
equally balanced conflict of the laws between the two states is abso-
lutely and necessarily excluded in the case of native-born citizens of
either, they bein<^ in turn the sons of lawful citizens.
" It is proper that you should temperately but distinctly acquaint
the Swiss Government with the view here entertained of the present
question. Your firm and earnest remonstrance should be interposed
in such shape as to leave no doubt in the mind of the Federal Council
of the sincerity of our attitude and of our determination to uphold
the rights of our native-born citizens, and the council should not be
left in ignorance of the severe strain which the claim of indefinitely
inherited allegiance so put forth in the case of Mr. Schneider and
any person similarly situated may perforce impose upon the tradi-
tional and fast friendship which the United States feels for Switzer-
land."
Mr. Olney, Sec. of State, to Mr. Peak, min. to Switzerland, March 6, 1897,
For. Rel. 1897, 562; MS. Inst. Switz. III. 59. See the claim of
Russia, supra, p. 653.
" In your note of March 24, relative to the military service of Mr.
Frederic Arnold Schneider, of Pfaffikon, Canton of Zurich, your ex-
cellency asks that the Federal Council reconsider its decision of March
5 last, which, in your opinion, is in harmony neither with the prin-
ciples of international law nor with the treaty of settlement between
Switzerland and the United States of Xovember, 1850. . . .
" We regret the inability to recognize the logical basis of these
arguments, which we should regard rather as being in manifest con-
tradiction as well with the universally recognized doctrines of inter-
national law as with the fundamental principles, beyond all contro-
versy, according to which a sovereign and independent state deter-
mines for itself the conditions and the manner whereby the quality
of citizenship is acquired or lost.
" We are far from contesting that Mr. Schneider may not be, by
the laws of the United States, an American citizen, but it remains no
less true that by our public law he is a Swdss citizen, and that as such,
finding himself within our jurisdiction, he is subject, in the same
manner as all other citizens of Switzerland, to the inherent obliga-
tions of such quality. ...
" Your excellency ... is not ignorant of the fact that Swiss
nationality, by virtue of a principle sanctioned by the constitution
itself, is not lost by the simple fact of acquisition of a foreign domi-
cil, but only following a renunciation expressly declared in the pre-
scribed forms of the law of July 3, 1870. Now, if neither the father
nor the son, Schneider, has as yet made this declaration, it follows
that both are still citizens of their coumiuiie of origin of Pfafiilvon,
§ 457.] EXPATRIATION : LAW IN SWITZERLAND, 667
and hence citizens of the Canton of Zurich and of the Swiss
C'^n federation.
" We have certainly at heart the fullilhnent of all onr obligations
contracted by solemn treaties with other countries, and we would not
await the representations of your excellency to conform to the con-
vention of November 25, 1850, if it were really applicable in this case.
Article II. of this treaty declares, indeed, that the citizens of each of
the two governments shall be exempt, in the other, from all personal
military service, but there is not the shadow of a doubt that in order
to determine the persons who shall b(> regarded as citizens of each of
the two countries, the treaty must necessarily be referred to the laws
in force in each of the two countries. It is, therefore, for Switzer-
land, the Swiss law which determines if a certain person living in
Switzerland should be considered as a S^viss citizen ; a contrar}" doc-
trine would imply the pretention of imposing upon Switzerland
legislation not its own, which would be inadmissible and irrecon-
cilable with its position as a sovereign and independent state.
" If the treaty of November 25, 1850, had the meaning which your
excellency wishes to attribute to it in your letter of March 24. it would
be difficult to understand what object the Government of the United
States had in proposing many times the conclusion of a treat^y stip-
ulating, among other things, that ' any Swiss citizen who has been or
shall be or is naturalized in the United States of America conform-
ably to the law, shall be regarded in all ways and in every manner by
the Swiss Federal Govermnent as a citizen of the United States of
America and treated as such by the Swiss Confederation.' Such a
stipulation would be, indeed, superfluous if Switzerland was already
obliged in virtue of the treaty of 1850 to recognize as American citi-
zens and to treat as such all Avho could prove having acquired such
quality conformably to the laws of the United States.
" The attitude taken by us in this matter is that which we have
always taken toward all other (iovernments aud that all other Gov-
ernments have takei) and take toward us. It is sufficient to recall, in
this regard, the French laws of June 2Vu 1881), and of July 22, 1893,
the effects of which were so widespread as to entail inconveniences
upon many foreign governments. . . .
"We can not, then, in the absence of any international stipulation,
admit that Mr. F. A. Schneider, son of a Swiss citizen, not having
renounced his original nationality, should be regarded otherwise than
all other Swiss citizens and freed from military duty. Mr. Schneider
is not in the least forced to keep his Swiss citizenship against liis will.
He can renounce it in the forms provided i)y the law of July o. ISTC).
and, if he does not do so, it is to be presumed vhat it suits him to re-
main a Swiss citizen in spite of the duties inherently attaclu'd to such
quality.
608 NATIONALITY. [§ 457.
" Besides, even in the case where the Swiss hiw would refuse to Mr.
Schneider the riji^ht of renouncing his orifj^inal nationality, it woul:^
not be disi)uted that Switzerland has the ri<rht to exact that he fulfill
his obli<jations toward her. This point of view was participated in
by an eminent American statesman, Mr. Daniel Webster, Secretary of
State, who, in a note of June 1, 1852, to the minister of Prussia to the
United States |the minister of the United States near the King of
Prussia], observed that if a government <lid not accord to its subjects
the right of renouncing their allegiance, it could, in all justice,
reclaim their services any time they were found wdthin its juris-
diction.
" We wish to hope that these explanations will suffice to convince
your excellency that, greatly desirous as we are of maintaining with
the United States of America the best relations and of being in
accord with your Government, we can not accede to the request made
in your letter of March 24 without departing from the laws and the
constitution confided to our safe keeping."
The Swiss Federal Council to Mr. Teak, U. S. niin., April 20, 1897, For.
Rel. 1897, 504.
" But little appears to be gained in the way of detailed analysis of
and answer to the note of the Swiss Federal Council of April 20,
inasmuch as nearly all of the elaborate argument therein presented
rests on a fallacious disregard of the essential point which the
Department's instruction and your note of March 24 endeavored to
present clearly to the Federal Government, viz, that, whatever may
be said touching the application of express treaties of naturalization
to the case of native subjects emigrating from one state to cast their
lot in another and to become citizens thereof by due process of law,
that conventional feature is wholly lacking in the case of persons
native-born citizens of citizen fathers. By no j.ust process of reason-
ing can it be claimed that such native-born citizens of citizen par-
entage are in the category of emigrants of whom the native state
may exact renunciation of their original status as a condition to
recognizing the acquisition of a new status. . . . A\niat the note
of the Swiss Federal Council says, therefore, respecting the neces-
sity of treaties of naturalization to determine points of allegiance
not covered by the general treaties of amity and commerce between
states can not be admitted as having reference to the case of a
native-born citizen of a citizen father. . . .
" It is observed that the note of the Swiss Federal Council rests its
argument in i)art upon a citation from a note stated to have l)een
written June 1, 1852, to the United States minister in Prussia by
Daniel Webster, when Secretary of State. The citation is not quite
accurate, for no instruction of the date and character described was
§457.] EXPATEiATioiir : law in Switzerland. 669
written by Mr. Webster. Under date of February 14, 1853, Mr.
Webster's successor, Edward Everett, writing to Mr. Barnard at
Berlin, in treating the case of naturalized citizens of the United
States who had been drafted into the Prussian army upon their
return to Prussia, refers to a letter written by Mr. Webster to a
notary public of New York, named J. B. Nones, of June 1, 1852, in
which, allowing for differences for translation, much the same lan-
guage is found as in the citation made by the Swiss Federal Council.
" It is to be insisted upon, however, that the reference is only valid
to the case involved, namely, those citizens of a foreign state who
emigrate in evasion or omission of military service and acquire
another status by naturalization. As to such persons the doctrine
of dual allegiance equally subsisting toward the country of origin
and the country of adoption, and necessarily regulated by a treaty
of naturalization, may be applied as an academic proposition ; but
in point of fact the claim is not pressed, so far as known, by any
state except Italy and Russia, unless the emigration shall have been
at or near the military age and constitute of itself an evasive viola-
tion of the law of origin. . . .
" It is observable that throughout the note of the Swiss Federal
Council the right of renunciation of citizenship is spoken of as per-
taining to the individual, provided it be declared in the prescribed
forms of the law of July 3, 187C. Although not recognizing the
obligation of the native-born American son of an American citizen
father to make the application of renunciation referred to, that
procedure may afford a practical solution to a position which other-
wise is and would remain intolerable as between two sovereign
states. ..."
Mr. Sherman, See. of State, to Mr. ronk. min. to Switzerland, May 12,
1897, For. Uel. 1897, 500; MS. Inst. Switz. III. 71.
The case was terniinatocl by the ju-foptanco by the Swiss (lovernnient,
through the (lei)artnient of justice of the canton of Zurich, of a
formal a]»i>lication which Mr. Schneider had made for release from
Swiss citizenship. (Foi*. Kel. 1807, 508, 509.)
In response to an inquiry whether a passport should be refused
to a native-born Swiss who returned to the couutrv of his origin after
acquiring American citizenship, ludess he could show that he had
*' fornuilly renounced his Swiss citizenship in the manner prescribed
by Swiss law," the Department of State said: "The laws of the
United States do not recjuire the consent of the (iovermnent of the
alien's origiu or a (•()nii)liauce with the laws of such country relative
to reminciatiou of allegiance as a ])i'erequisite to uaturalizatiou here.
You would, therefore, not be justified in uiaking it a condition to the
issuance of a passport that the applicant shall show that he has form-
670 NATIONALITY. [§ 457.
ally renounced Swiss citizenship in the manner prescribed by Swiss
law."
In connection with this subject the legation raised the question
whether a Swiss, in obtaining naturalization in the United States,
could, without false swearing, renounce his allegiance to the land of
Jiis birth and be considered a bona fide citizen of the United States,
so long as he conserved his Swiss citizenship, which he well knew that
he could not lose, except by his own formal renunciation of it.
The Department of State replied : " This is, in effect. Can a person
who obtains his certificate of naturalization by fraud be considered a
bona fide citizen of the United States? Naturalization being a ju-
dicial act, there is no aiithority on the part of the executive to declare
that a naturalized citizen of the United States is not a citizen because
of fraud in the procurement of his citizenship. That can only be
determined judicially by a competent court of the United States.
But this does not interfere with the exercise of the discretionary
power vested in the Secretary of State in the matter of granting
passjjorts and protecting American citizens abroad, and the Depart-
ment's standing rule is to withhold a passport from any holder of
naturalization papers found to have been obtained by fraud."
Mr. Hay, Sec. of State, to Mr. Leishman, min. to Switzerland, Dec. 12,
1899, For. Rel. 1899, 764.
" The information given below is believed to be correct, j^et is not to
be considered as official, as it relates to the laws and regulations of a
foreign country,
" Every Swiss citizen is liable under Swiss law, to military service
from the beginning of the year in which he becomes 20 years of age
until the end of the year when he becomes 44. Evei"y Swiss of mili-
tary age who does not perform military service is subject to an annual
tax, whether he resides in the Confederation or not, or to punislmient
for nonpayment of the tax if he returns to Switzerland.
" If a Swiss citizen renounces Swiss allegiance in the manner pre-
scribed by the Swiss law of July 3, 187G, and his renunciation is
accepted, his naturalization in another country is recognized, but
without such acceptance it is not recognized, and is held to descend
from generation to generation.
" Before he returns to Switzerland an American citizen of Swiss
origin should file with the cantonal authorities his written declara-
tion of renunciation of his rights to comnnmal, cantonal, and in gen-
eral Swiss citizenship, with documents shoAving that he has obtained
foreign citizenship for himself, wife, and minor children, and receive
the sealed document of release from Swiss citizenship through the
direction of justice of the canton of his origin. If he neglects this
and is within the ages when military service may be required, he is
§458.] expatriation: law in Switzerland. 671
liable to military tax, or to arrest and punishment in case of non-
payment of the tax."
Circular notice, Department of State, Washington, Jan. 8, 1901, For. Rel.
1901, 499.
As to military service in Switzerland, see Mr. Broadhead. min. to
Switzerland, to Mr. Oluey, Sec. of State, No. 87, Aug. 10, 1895, 29 MS.
Desp. Switz.
(C) FUTILE CONVENTIONAL .NEGOTIATIONS.
§458.
" The United States of America proclaims and practices the prin-
ciple that an American citizen can not belong to another nationality,
and therefore, one wishing to obtain American citizenship must ab-
jure his former nationality. From this has arisen in the interna-
tional relations of that Republic with other countries, serious conflicts
in regard to the state or home right, and a constant danger of result-
ing in IleimatlosigJceit^ homeless people. ... To correct these
inconveniences the United States have repeatedly proposed to Swit-
zerland the remedy employed by other states, the conclusion of a con-
vention. But so far the Federal Council has been of the o])inion that
these overtures could not be entertained. This they have been im-
pelled to in view of article 44 of the Federal Constitution, which pre-
scribes that no canton shall deprive a citizen of his Swiss citizenship ;
and in view of the positive Swiss States right, according to which a
Switzer can only by his own free act renounce his Swiss nationality,
there was no power to change these principles by a treaty."
Report of a special commission to tlie Swiss Federal Assembly, 1887, For.
Rel. 1889, 0.85.
Acting on a report made by the American legation at Berne, August 12,
1882, as to the willingness of the President of Switzerland to nego-
tiate a naturalization convention with the United States, on the lines
of the convention between the Ignited States and Denmark of 1872,
Mr. Frelinghuysen sent instructions, in which the legation was
directed to make no concession tliat would invalidate the riglit of the
United States to naturali7>e foreigners irrespective of their original
obligations, since the Ignited States could not " admit of (lualified
naturalization, subject to the consent of the country of origin." (Mr.
Frelinghuysen, Sec. of State, to Mr. Cramer, No. 7, Oct. 19, iaS2, MS.
Inst. Switzerland, II. 148.)
November 7, 1882, Mr. Cramer submitted a draft of a convention to the
President of the Confederation, who, after examining it, stated that
it containe<l ])rov!sions which were in conflict with the laws of
Switzerland, but without specifying the jjarticnlar conllicts. (Mr.
Cramer to Mr. Frelinghuysen. No. 37. Feb. 22. 188:1, 21 MS. Desp.
Switzerland.)
In his No. 101. August 2. 1884. Mr. Cramer again adverted to the subject,
and on September 10. 1.884. was authorized to reopen negotiations on
the basis of his instructions. He did so November 5, 1884. The Swiss
672 NATIONALITY. [§ 458.
Governniont vopliod, February 20, 1885, that Swiss nationality
dopciulfd on citizonsliip " of or in a canton ; " tliat article 44 of the
Swiss constitution forbade the cantons to deprive anyone of his <Mti-
zenship, and tliat tlie Confederation also had no such authority; and
that conseiiuently the Confederation ladicd tlie competence to asret;
that the acquisition of citizenship in tlie United States should result
in the loss of Swiss citizenship. (Mr. Olney, Sec. of State, to Mr.
Peak, No. 54, Oct. 27, 18J)0, MS. Inst. Switz. III. 25.)
The subject was revived by Mr. Cramer's successor, Mr. Winchester, in
his No. 54, April 20, 1880. (24 MS. Desp. Switz.) Mr. Winche.ster
was authorized to renew negotiations, but only on the basis of previ-
ous instructions. (Mr. Bayard, Sec. of State, to Mr. Winchester,
niin. to Switzerland, No. 48, May 17, 1880, MS. Inst. Switzerland, II.
311.)
Mr. Winchester subsequently reported that he was unable to induce the
federal council to consider the matter officially, owing to the opinion
that the pi-oposal would involve an amendment of the federal and
cantonal constitutions on a subject concerning which the genius of the
people was opposed to a change. (Mr. Winchester to Mr. Bayard,
No. Vn, May 27, 1887, 25 MS. Desp. Switzerland.)
Further negotiations did not take place. (Mr. Olney, Sec. of State, to Mr.
Pciik, min. to Switzerland, No. 54, Oct. 27, 1890, MS. Inst. Switzer-
land, III. 25.)
••It would seem very desirable, notwithstanding the alx)rtiveness of the
efforts made towai'd a naturalization treaty with Switzerland between
1882 and 1889, that a conventional arrangement should be i)erfected
with the Confederation for the better determination of the status as
well as the personal and property rights of citizens of the United
States of Swiss origin. The Helvetian Republic appears to stand, by
a somewhat notaltle anomaly, with the minority of modern states in
holding to the now generally al)andoned doctrine of perpetual allegi-
ance, and the more remarkably so as its contention seems to rest, not
on the old thwH-y of the sovereign's absolute mastership over the sub-
ject, but on the individual's relation to the local commune, in which
he is held to acquire a species of perpetual denization by descendance,
inheritance, or even purchase, that can not be dissolved except with
the consent of the connnune. This pretension has been pushed so far
that even native Americans, born of naturalized parents, may, it
seems, be held to military duty should they visit Switzerland.
"The United States minister at lierne has been instructed to rt^open nego-
tiations in view of the more encouraging disposition to conclude a
convention in this i*egard which was disclosed by a certain consulta-
tive report made to the Swiss Federal Council in 1888." (Report of
Mr. Olney, Sec. of State, to the President, Dec. 7, 1890, For. Rel. 189(5,
Ixxxviii.)
" I have the honor to invite your excellency's attention to the sub-
ject of a naturalization convention between the United States and
Switzerland. This subject has engaged the attention of the two Gov-
ernments as far back as in 188-t, at which time the Government of the
United States urged the j)r<)ject of such a treaty upon the Swiss Gov-
ernment. On the 20th of February, 1885, the Swiss Government, in
§458.] expatriation: law in Switzerland. 673
response to this proposed treaty, replied that Swiss nationality de-
pends upon citizenship of or in a Canton ; that article 44 of the Swiss
constitution forbids the Cantons to deprive a citizen of his citizenship,
and the confederation also has no authority to do so, and that, conse-
quently, the confederation lacks the competence by treaty to connect
with the acquisition of citizenship in the United States the loss of
citizenship in Switzerland. In view of this constitutional objection
upon the part of Switzerland, the subject was no further pressed at
that time.
" In May, 1888, the committee of the National Council in its report
upon the acts of the Federal Council made reference to the repeated
suggestions of the United States for a naturalization treaty, set out the
objections theretofore made by the Federal Council, and added that
the Federal Council had latterly felt well disposed to the project of
such a treaty, and concluded with a recommendation that the Council
enter into a consideration of the convention proposed.
" It is the purpose of this note to inquire of your excellency whether
the Federal Council now has the competency to negotiate a natural-
ization convention with the United States, as suggested in the fore-
going report, and whether the Swiss Government at present feels
disposed to enter into consideration of such a convention."
Mr. Peak, U. S. minister, to the President of the Swiss Confederation,
Dec. 8, 1896, For. Rel. 1897, 559.
" In answer to the note of your excellency of December 8 last, sub-
mitting to us the project of a treaty between Switzerland and the
United States on the subject of naturalization, Ave have the honor to
inform you that to the conclusion of such a treaty as outlined in the
above-mentioned project there is opposed to-day, as in 1885, the prin-
ciple enunciated in Article 44 of the Federal Constitution.
" If the Government of the United States of America finds it
strange (Report of the Secretary of State to the President for the
year 1896, p. 28) that Switzerland clings to this principle, it is
prayed to remember that it is for each state to regulate for itself the
conditions under which one acquires or loses the right of citizenship
within its boundaries, and that the practice followed in Switzerland
has its foundation in the point of view and sentiment of the Swiss
people, just as the principles of law in force in the United States,
and differing from ours, spring, no doubt, from the particular charac-
ter of the American people.
" Besides, it is not exact that a Swiss citizen can renounce his
Swiss citizenship only with the consent of his commune. If the right
of renunciation of Swiss citizenship is contested, the applicant, fol-
lowing the Federal law of July 8, 1800, can have recourse to the
Federal tribunal, which, if the conditions mentioned in this law are
H. Doc. 551— vol 3 43
674 NATIONALITY. [§ 458.
complied with, decides what is necessary to enforce his demand.
Thus, even lately, the Federal tribunal has held that the fact of not
having paid the military tax is not a valid reason for withholding the
right to renounce citizenship.''
The I'resident of the Swiss Confederation to Mr. Peali, U. S. minister,
.Jan. 22, 1897, For. Rel. 1897, 560.
Sept. 29, 189G. Mr. Peali addressed to the President of the Swiss Con-
fetleration a note saying tliat Fredericlv W. (ilardon, a native of the
United States, temporarily residing in Geneva for tlie purposes of
study — born of parents who had formerly resided in Fribourg, Switz-
erland, but who had emigrate<l to the United States and become
naturalized citizens before his birth, which occurred Aug. 21, 187f5 —
had been informed by the authorities of (ieneva that he must either
formally i-enounce his Swiss citizenship or else perform military
service. Mr. Glardou on Sept. 18, 189G, attempted to make the
necessary renunciation, but the authorities refused to accept his
passport as sufficient evidence of his American citizenship. Mr.
Peak asked that Glardon's claims to American citizenship be recog-
nized.
The Swiss Government replied Oct. 8. 189(5, that, in accordance with ar-
ticle 7 of the law of July 3. 1876, Glardon was required to pfesent in
writing an application with proofs, and that these should state that
the applicant was " no longer domicHed in Switzerland, and that he
possesses a civil right in the country in which he resides. . . .
If the right of renouncing nationality should be contested at this
point, the cause should be carried before the Federal Tribunal, which
decides in the last instance. The Federal Council has no jurisdic-
tion in questions of this kind." (Mr. Peak, min. to Switzerland, to
Mr. Olney, Sec. of State, No. 45, Oct. 12, 1896, 30 MS. Des. Switzer-
land.)
"It will be observed that the Swiss Government declines to con-
sider a naturalization convention now, as in 1885, on the ground that
such a convention would be opposed' to article 44 of the Swiss consti-
tution. This article as it appears in the constitution of 1848 reads as
follows :
" 'Art. 44. No canton shall expel from its territory one of its own
citizens or deprive him of his rights, whether acquired by birth or
settlement.'
" This was amended in 1874 by the following:
" ' Federal legislation shall fix the conditions upon which foreign-
ers may be naturalized as well as those upon which a Swiss may
give up his citizenship in order to obtain naturalization in a foreign
country.'
" The Federal Assembly in 1876, in accordance with this amend-
ment, prescribed the process whereby one might lose or gain the right
of Swiss citizenship. This law provides, among other things, that a
Swiss citizen, in order to. renounce his citizenship, must no longer
have a domicil in Switzerland; that he must enjoy a civil capacity
§ 458.] EXPATRIATION : LAW IN SWITZERLAND. 675
under the laws of the country in which he resides and must have a
citizenship in some foreign country ah-eady acquired or assured, for
himself, his wife, and his minor children. The declaration of renun-
ciation should be in writing, accompanied by proper proof, and pre-
sented to the cantonal government. The right of contest is limited
to four weeks, and in case of contests the Federal Tribunal decides.
" It will be observed that the amendment to article 44 gives to
Federal legislation the right to prescribe the conditions Avhereby one
might lose his citizenship, and, therefore, it would seem to follow
logically that such a prescription as the one sought to be embodied in
the proposed treaty (that a Swiss acquiring American citizenship
should be held to relinquish his Swiss citizenship) might properly
fall within the authority of that body. But, as a matter of fact,
whatever the words of the amendment may clearly mean, they have
been so often and so forcibly interpreted so as to exclude from the
Federal Council or Federal Assembly this power that those bodies do
not dare, nor do they consider that they have the right, to oppose
themselves to this idea. Thus it is that the declination of the P^ederal
Council to enter into negotiations for a naturalization treaty with the
United States must be attributed to a real lack of capacity and not
to any wish on their part to oppose it.
"As presenting the Swiss point of view on this subject, I send here-
with inclosed to the Department a translation of an interesting and
instructive extract from the Handbuch cles schweizerischen Bundes-
staatrechts, by Dr. J. J. Blumer, a work of noted authority. In this
article the author has presented from the Swiss standpoint a clear
and succinct view of the doctrine of perpetual allegiance and a his-
tory of the interesting discussions to which it has given rise.
" It will be observed that, however illogical and indefensible the
doctrine ma}^ be, it is most profoundly embedded in the sentiment of
the Swiss people. Citizenship is regarded by them not only as a
sacred possession, but also as a valuable property right, entitling the
citizen to demand of his connnune or canton aid and assistance in case
of poverty, or even a home and support in the event of old age and
helplessness. It is, perhaps, this aspect of the case which appeals
most strongly to Swiss patriotism and is responsible for the manifest
repugnance of the Swiss citizen to renounce his citizenship, even after
acquiring citizenship in another country. He reserves his Swiss citi-
zenship as a valuable contingency for old age and helplessness, in the
event he should not prosper in his adopted country. The doctrine is
thoroughly understood and appreciated by all the people of Switzer-
land, even among the most ignorant peasants, and is taught in all their
schools. Those who emigrate to the United States are not ignorant of
its nature, but are unwilling to renounce their S>yiss citizenship, and
676 NATIONALITY. " [§458.
hence when on their return to Switzerland they are required to per-
form the duties of citizenship they are not entitled to much sympathy,
however desirous the Government of the United States may be to
shield them.
" They have voluntarily placed themselves in the attitude of owning
allegiance to two dilTerent sovereignties, and the burdens and incon-
veniences resulting therefrom would seem to be as essentially a part of
this dual allegiance as the advantages which they hope to derive from
it. As naturalized citizens of the United States they owe allegiance
to our Government and are entitled to its protection ; as native citizens
of Switzerland they hold and claim the right to return to their com-
mune and demand its aid and assistance in case of poverty or helpless-
ness. As long as they remain in their Swiss jurisdiction Switzerland
claims the right to exact of them military service and other duties of
citizenship as an equivalent for the possible benefit they may receive
from their commune in the event of decrepitude and helplessness,
" For harmonizing vieAvs so widely and radically different and so
conflicting as those entertained by the two Governments ujion this
important subject, a naturalization convention would seem to be the
wisest and best remedy, but I regret to say that I see nothing in the
present attitude of the Swiss Federal Council or in the sentiment of
the people to justify the hope of such consummation in the near
future.''
Mr. Peak, min. to Switzerland, to Mr: Olney, Sec. of State, Feb. 3, 1897,
For. Rel. 1897, 557.
Translation of an extract from the Uanilhuch des schweizerischen Bundes-
staatrechts, hy Dr. J. J. Blumer, vol. 1, page 330.
" The possession of tlie right of Swiss citizenship is derived from the right
of citizenship cantonal, as this in turn is subordinated to the posses-
sion of the right of citizenship communal, or of a conunune.
" It is therefore to the cantons that belongs the i)rivilege of i)roniulgat-
ing the regulations upon the loss or acquisition of citizenshlii, but
inasmuch as contests between the cantons and even international
conflicts may arise from this state of things, the constituted authori-
ties believed, as early as in 1848, that it was necessary to insert in
the constitution this principle: 'That no canton can deprive any of
its citizens of the right of origin or of cltizenshii).' It was sought
to avoid thus a return to the system of ' helmat losat,' or ' homeless
people,' resulting formerly from the fact that certain cantons had
withdrawn the right of citizenship or connuune from their citizens
who embraced another religion or contracted marriage with the pro-
fessor of another faith, whereas other cantons had sought to prevent
this by a vote of the assembly of cantons.
"At the diet in 1848 the deputation from Zurich proposed to make an
exception to the principle al>ove stated in the case where a Swiss
should possess uncontested citizenship rights in a foreign country. It
§ 458.] EXPATRIATION : LAW IN SWITZERLAND. 677
was urged that if one continued to consider forever and in all circum-
stances the emigrants as citizens, the cantons and communes would
have in time a population outside of its houndaries, without direct
connection with their country, and who would not avail themselves
of the right of citizenship except upon such occasions as it should be
to their advantage. It was objected to the i)roposition of Zurich that
the right of Swiss citizenshii) should be held so sacre<l that any pro-
scription of it was absolutely inadmissible ; that this notion of the
value and importance of the right of Swiss citizenship was bound up
and linked with the sentiments of the Swiss peoi)le; that a citizen of
the confederation should not be allowed to lose his right of citizenship
except upon his voluntary renunciation and jiroof that he had ac-
quired another domicil. P^'ollowing this discussion the proposition of
Zurich was rejected by only two votes majority.
" During the discussion upon the revision of the constitution in 1871 and
1873, it was sought to add to article 42 of the ancient constitution a
prohibition against the banishment of citizens of other Cantons from
the territory of the Canton where they were. At the same time
the National Commission proposed- the following amendment: 'He
who acquires or accepts the citizenship of a foreign country loses
his citizenship, Swiss and cantonal.' This amendment was sup-
ported by arguments analogous to those which were urged in 1848
In favor of the proposition of Zurich. It was stated that the Swiss
who were naturalized in America refused upon their return to
Switzerland to fultill their duties of Swiss citizenshij) when such
was inconvenient to them, involving their newly acquired citizenship;
and, on the other hand, when they found themselves in need of it
they reclaimed the aid and assistance of the Cantons and connniuies,
pretending that, notwithstanding their American citizenship, they
had not lost their rights of Swiss citizenship and still possessed
all the privileges belonging to a citizen, both cantonal and com-
nunial. It was added that a i)osition so equivocal and which could
be easily modified provoked conflii-ts, and that it was, moreover,
contrary to the spirit of the ancient country. But the National
Council itself rejected this amendment, which had been opposed
by such arguments as these : That in 1850 they had tried to remedy
the inconveniences springing from the ' heiniat losat,' and that now
this proposition would open the door anew to the same disorder;
that it was in contradiction of Swiss history and the development
of its public rights ; that it was opposed to the sentiments of the
people, who held firm to the praiseworthy theory that one coidd
never, except by his expressed will, lose his right of citizenship in
Switzerland; that often it did not depend uikju the free will of tlie
citizen that he had acquired citizenship in a foreign country, but
that in many countries he was directly comi)elied by circumstances
to naturalize himself; that thus in a lunnber of countries and,
indeed, in America, it was necessai'y to be naturalized before one could
acquire the power to own land, and that in certain of the (ierman
States, where exists the system of concessions, citizenship was an
indispensable condition to the exercise of certain i)rofessions. It
was recognized that this double right of citizenship could give rise
to conflicts, particularly where the jurisdiction of tribunals was
• concerned : but these inconveniences, it was urged, were not so
great that it should be necessary to discredit a theory widely ui)-
678 NATIONALITY. ' [§458.
held and deeply imbe<ided in the hearts of the Swiss people, and
espwially was this true when the at'quisition of foreign citizenship
had never as yet occasioned to Switzerland any grave difficulties witli
other countries.
The principle that a Swiss can not lose his Swiss citizenship except
he liimself renounce it, has been thus maintained since the last re-
vision. But as the legislation of the Cantons presented great diver-
gencies as to this renunciation, and as the right of renunciation,
even, was placed in doubt by certain Cantons, it was declared in the
project of the constitution of 1872 that this matter was to l>e sub-
mitted to Federal legislation. And this amendment was passed
without change in the present constitution, of which article 44. or
that part of it which concerns the present (juestion. reads thus:
* No Canton can . . . deprive one of its citizens of the right
of citizenship.' ' Federal legislation will determine the conditions
under which a Swiss can renounce his nationality to obtain naturali-
zation in a foreign country.'
*• The Federal Council has fully explained the signification of the above
in many notes addressed to foreign governments. It can be summed
up as follows : Tlie right of Swiss citizenship can not be jtroscribed ;
every Swiss conserves his citizenship as long as he does not renounce
it himself and as long as he can prove his descent; the fact of his
liaving acquired a foreign citizenship is not sufficient to malie him
lose his Swiss citizenship ; he preserves it even during a prolonged
sojourn in a foreign country, and even when he has not paid his mili-
tary and civic taxes in Switzerland ; this is also true if he has
accepted military service or enteretl into the administration of the
foreign country ; to lose his Swiss citizenship a formal and exi)ress
renunciation is necessary, whidi also extends in its effect to his
minor diildren ; but in order to malve such a renunciation valuable
or valid, it is necessary to prove tliat he has acquired domicii in
another country or Canton.
" From all that precedes it follows that the Swiss laws admit tlie prin-
ciple of double citizenship, which is prohibited in many countries.
Thus, in 1851, when the government of Outer Appenzeli Rhodes
claimed tlie authority to withdraw the right of citizensiiip from one
of its citizens who wished to acquire citizenship in another Canton,
tlie Federal Council instructed it tliat tliis point of view was con-
trary to the constitution, and that it would be obliged to admit as
established the right of recourse of a citizen of Appenzeli who com-
plained against .such a withdrawal of his citizenship. The Federal
Council has also refused to ratify an article of the constitution
of Uri, in 1850, whereby it was sought to exclude citizens who,
after having acquired citizenship in a foreign country, had not
renewed his Swiss citizensiiip wthin a certain time. The same deci-
sion was made in an analogous case concerning tlie constitution of
St. Gail, in tiiis sense, that the Federal As.sembly reserved the
right of interpreting article 43 (present article 44).
" In conclusion, it should be mentioned that the Federal Council has
declared inadmissible an ordinance of the Canton of Nidwalden
prescribing that the widows of its citi::ens, originally of the Canton
of Obwalden, should be returned to the charge of their original
coniniune. In a word, the acquisition of the right to aid or assist-
ance is a consequence of the riglit of citizensiiip, wiiicii, under the
terms of article 44, can not be lost." ( For. Rel. 1897, 500. )
§ 459.] EXPATRIATION : LAW OF TURKEY. 679
(17) TURKEY.
(a) LAW OF 1869.
§ 459.
" His excellency [the Turkish minister of foreign affairs] states
that the majority of eases where the naturalization of Turkish sub-
jects is questioned are found to be people who have left the Empire
to escape payment of debts, evade criminal process, or without ob-
taining leave of the Government, and by remaining absent for a
length of time and returning imder the protection of an American
passport expect immunity from everything remaining of record
against them. Furthermore, he says that the Ottoman Government
can have but one standard for the consideration of the naturalization
of persons formerly Ottoman subjects, and whicli is fully stated in
the law promulgated January 19, 1869.
" By examination of the Legislation Ottomane, vol. 1. page 8, art. 5,
I translate as follows:
"Art. .5. The Ottoman subject who has acquired a foreign nationality with
lihe authorization of the Imperial Government is considered and treated as a
foreign subject. If, on the contrary, he has naturalized himself as a foreigner
without the preliminary authorization of the Imperial Government, his naturali-
zation will l>e considered as null and void, and he will continue to l>e considered
and treated in all resi)ects as an Ottoniiin subject. No Ottoman subject can in
any case acquire foreign naturalization until after obtaining an act of authori-
zation delivered by virtue of an Imperial irade.
" His excellency stated that but one thing remained to be done b}'
those who have violated the above law, and that was to file a petition
stating all the points of their several cases, and particularly a cause
for changing their nationality, with the Turkish minister in America,
who in turn will forward the same to the locality whence the petition
originally came, and if found to have left a clean record after him,
there will be no difficulty in obtaining the Imperial irade, considered
so indispensable in the above law.
" Without this last precaution all naturalized Turks are debarred
from inheriting from Ottoman subjects, notwithstanding that the
property may have been acquired through the thrift and industry of
the foreigner. And in case the latter purchases property he caimot
bequeath the same to other than an Ottoman.
" In reference to filing these petitions with the Turkish minister in
America, I made particular inquiry whether it would not be prefer-
able to have the same come through the channel of the State l)e})art-
ment and this legation, to which his excellency replied that by the
personal application to the minister he would be enabled to pronounce
at once whether the applicant could obtain relief, and thereby save
much time and labor."
680 NATIONALITY. [§§460,461.
Mr. Euimet, chnrgC' at Constantinople, to Mr. Bayard, Sec. of State, July
21, 1885. For. Hel. 1885, 851-852.
For the text of the Ottoman Law of Nationality of .Tan. 19, 18G9, and a
circuhir of the Turkish Government of March 2(5, 1869, in relation
thereto, see For. Rel. 1893, 714-715.
" Turkej'^ refuses to legalize the passports of any naturalized per-
son of Armenian birth. There is no way by which this Department
can procure a vise in such cases. The Turkish minister uniformly
refers all applications for vises to the Ottoman consuls," who are pro-
hibited by their Government from viseing the passports in cjuestion.
Mr. Uhl, Act. Sec. of State, to Mr. Agnew. May .3, 1895, 202 MS. Dom.
Let. 49.
(b) BUREAU OF NATIONALITY.
§ 460.
The Turkish bureau of nationality was established under a law of
July 17, 1869. (Legislation Ottomane, 1. 12.) It was ordained for the
purpose of examining documents presented in support of the claims
of persons residing in Turkey to foreign nationality, and, if such
claims are found to be satisfactory, a certificate to that effect is issued
by the bureau and the person's name is registered. Such registra-
tion avoids further discussion of the claimant's nationality. If the
evidence of foreign nationality is not satisfactory, the certificate and
registration are refused, and the bureau reports the case to the minis- ^
ter of foreign affairs, with whom rests the final decision. The bureau
deems as American citizens Ottoman subjects who were naturalized
in the United States before 1869. Registration has not been regarded
as obligatory upon aliens, but it is required whenever the alien pre-
sents himself before an Ottoman tribunal either as claimant or de-
fendant, or wishes to validate any official or legal document, or is a
party to a transaction in which the seal of an Ottoman office is neces-
sary.
Mr. Cox, min. to Turkey, to Mr. Bayard, Sec. of State, Jan. 5, 188«). en-
closing a translation of the regulation of July 17, 18()9. For. Kel.
1886, 862.
See Mr. Bayard, Sec. of State, to Mr. Cox, min. to Turkey, No. 79, Jan. 23,
1886, 4 MS. Inst. Turkey, 375.
(c) DIPLOMATIC CONTROVERSIES.
§ 461.
" This Department has received a dispatch of the 20th ultimo, from
the United States consul at Beirut, stating that the Turkish bureau of
nationality at Constantinople had recently declined to certify to the
American citizen.ship of Messrs. Kevork Guligyan and Bedros Iski-
§461.] expatriation: law of turkey. 681
3^an, on the ground that their passports did not show that they left
the Ottoman Empire prior to the promulgation of the law of 1869
forbidding Turkish subjects to leave the country without permission
to become naturalized in another country. The refusal referred to,
for the reason alleged, seems so extraordinary, at least, that you will
protest against it, and endeavor to have it corrected so far as it may
have been or may be applied to the persons above referred to.
" Passports are issued by this Department to naturalized citizens
upon the production of the certificate of naturalization. There is no
law of the United States requiring a passport to state when a natural-
ized citizen left the country of his birth, or to embody that statement
in the passport. It has not been the practice of this Department to
insert such a statement in the passports issued to former Turkish
subjects or to any other naturalized citizens. A different course
might iniply that the right of the foreign government to participate
in or to nuike the naturalization of its subjects conditional was
acknowledged here. This it has never been and probably never
will be."
Mr. Bayard, Sec. of State, to Mr. Eiiiuiet, charge at Constantinople, May
29, 1885, For. Kel. 1885, 847.
See, as to the similar ease of Mr. Cliryssofondis, For. Rel. 1885, 849, 852,
8.55.
" The Imperial ministry has received the dispatch that the legation
of the United States of America was pleased to address to it, dated
the inth of July last, No. 251, relative to the naturalization of Kevork
Guligyan and Bedros Iskiyan.
'' The competent bureau of my department, after having taken cog-
nizance of this document, renuirks that the claims of the persons in
(juestion could not be admitted, inasmuch as they have exhibited no
document in support of them except a simple passport. Now, such a
document is not of itself sufficient to give a native Ottoman subject a
foreign nationality.
" The examination of the certificate of naturalization delivered by
the foreign government is indis})ensable. In fact, it is important to
establish untler what condition the naturalization lias been acquired,
for no naturalization obtained without the authorization of the Im-
perial (iovernment is valid unless it took place in legal form before
the pronudgation of the law on Ottoman nationality, and any natu-
ralization subsequent to this law is considered as being null, if the
formalities prescribed in article 5 are not fulfilled.
" This is, in a general way, the line of proceeding followed for the
verification of nationalities, and the competent bureau cannot depart
from it in the special case of the two aforementioned persons."
Said Pasha, Turkish niin. of for. aff., to Mr. Cox. Am. min., Oct. 15. 1885,
For. Hel. 1885,87(5, accoiiipanyiiig despatch of Mr. Cox to Mr. Bayard,
No. as, Oct. 24. 1885, For. Bel. 1885, 873.
682 NATIONALITY. [§ 461.
'• I have received your No. 36, of the 24th ultimo, having especial
reference to the cases of the naturalized American citizens, Kevork
Guligyan and Bedros Iskiyan, whose registration in the Turkish bu-
reau of nationality is refused on the sole evidence of their passports,
and embracing general considerations on the subject of the right of
expatriation. . . .
" It would appear from your remarks that these two persons seek
registration as foreigners, in order to be qualified to hold real estate
as such. ... If Turkish law imposes a disability as to the tenure
of real property upon a Turk who has become naturalized elsewhere
without the previous consent of his Government, then the question
would be one of the subjection to municipal regulations of those who
have voluntarily placed themselves thereunder, in a matter over which
those regulations have sovereign and exclusive control. And the
Tm'kish Government having the right to investigate the cases of per-
sons applying, as foreigners, for the privilege of holding lands, or
for any other personal privilege over which municipal laws have con-
trol, it would seem to have the right to demand of them such evidence
as would enable it to ascertain w'hether the applicants labor under
any disqualification, and, in the event of their refusal to produce such
evidence, to withhold the privilege sought. . . .
" If, therefore, registration in the bureau of nationality were sought
by the two men in question merely as a formality whereby to qualify
themselves for municij^al rights, this Government could not object to
the application in their case of any reasonable test or mode of trial to
ascertain whether any legal disability existed to prevent the conces-
sion of the privilege sought.
" I am not sure, however, that the matter is capable of considera-
tion within these narrow limits. It seems to trench upon the broad
question of the right of expatriation, and to involve application to
any and all Turks who, being naturalized in the United States, may
return to Turkey. . . .
" This Government has never admitted, and can not now admit, the
doctrine for which the Porte contends. Within our domestic juris-
diction we are bound to uphold and enforce the right of expatriation,
and our assertion of that right follows to every foreign country the
alien who has become a citizen of the United States by due process of
law, and regards him as the equal of a native-born American citizen.
We may not abandon the assertion of that right in favor of the coun-
ter assertion of the Government of such a person's original allegiance.
" The laws of the United States thus inhibiting absolutely any dis-
crimination l^etween their native-born and naturalized citizens, the
same form of passport is prescribed for all alike, and, under inter-
national law, is to be accepted everywhere as prima facie evidence of
nationality. Our duty is limited to the positive one of lawfully certi-
§ 461.] EXPATRIATION : lAW OF TURKEY. 683
fying the fact of American citizenship, and this Government cannot
be expected to go beyond the bounds of its powers and duty l)y assent-
ing to such a contention on the part of a foreign government as
would, if logically carried out, involve the negative obligation to show
that the citizen had not at some previous time been subject to another
power.
" I am aware of no government whose contention in this regard
appears to go as far as that of Turkey. Other sovereign states, it is
true, deny the right of expatriation without prior consent, but none,
to my knowledge, imposes upon every alien resorting to its territory
the burden of disproof.
" The contention of Turkey may in fact be found to go even fur-
ther, and assert a power on the part of the Porte to forbid the govern-
ment of the state whose citizenship a Turk may have lawfully ac-
quired from diplomatic intervention in his behalf, if the Turkish law
declares him to be still a subject of the Porte. I do not know that
this is so; I trust it is not. There may be an analogy, however, be-
tween the Turkish rule of registration and the Mexican law of ma-
triculation. In Mexico, all foreigners are required to deposit their
passports in the ministry of state at the capital and take out a cer-
tificate of matriculation, which is alone admitted as evidence of their
rights as foreigners in that country. Failing such registry, they can
assert no civil or judicial rights of alienage: and the law^ even pro-
claims that' no diplomatic intervention of their government will be
admitted in their behalf under whatever circumstances. The United
States have for years contested this position, asserting that no munici-
pal statute of another country can overthrow the reciprocal relations
of a foreigner with his own government, or impair the obligation of
the latter to intervene for his protection in case of wrong or denial of
justice.
" But, extreme as is the ^lexican position, it merely rests on the
execution of a fonnality. It accepts the passport as the evidence of
alienage, and simply substitutes, for nninicipal effects, one form of
indiscriminating certifications for another,
" The Turkish rule, on the contrary, rests on a vital discrimination
betw'een classes of foreigners; it imposes a burden of proof unknown
elsewhere, and it assumes not merely to treat certain persons as Turks
until the contrary is shown, but to make them Turks.
" The question is, in its broadest aspect, one of conflict l)etween the
laws of sovereign equals. The authority of each is paramount within
its own jurisdiction. We recognize expatriation as an individual
right. Turkey, almost solely among nations, holds to tlic generally
abandoned doctrine of perpetual allegiance. Turkey can no more
expect us to renounce our fundamental doctrine in respect of oui" citi-
zens within her territory than she could expect to enforce her doc-
684 NATIONALITY. [§ 461.
trines within the United States by preventing the naturalization h^re
of a Turk who emigrates without the authorization of an imperial
irade.
" In such cases, where the disagreement is fundamental, a conven-
tional arrangement is practically the only solution to the difficulty.
Founding on the volition of the individual as an ultimate test, the
United States, without imj^airing their doctrine of the inherent right
of expatriation, but rather confirming it, may agree upon certain con-
ditions, according to which a person who has been natufalized in the
United States and returns voluntarily to the country of his original
allegiance, there to remain for a stated period, may be held to have
created a presumptive intent to resume his former status, and thereby
abandon his acquired nationality. AVe recognize the individual right
to do so ; repatriation is as equally a right as expatriation."
Mr. Bayard, Sec. of State, to Mr. Cox, inin. to Turkey, Nov. 28, 1885,
For. Kel. 188r>, 885.
Much space was given, in the foregoing instruction, as will appear by
the full text in the volume of Foreign Relations, to a conjectural
discussion of questions that it was supposed might arise in regard
to the functions of the Turkish Bureau of Nationality. It was
found, however, that the bureau did not possess independent judicial
functions, but that the ultimate decision rested with the executive,
so that it became ininecessary to pursue the conjectural discussion
further. (Mr. Bayard. Sec. of State, to Mr. Cox, min. to Turkey,
Jan. 2.*^, 1880. 4 MS. Inst. Turkey, 875.)
" Questions concerning our citizens in Turkey may be affected by the
I'orte's non-acquiescence in the right of expatriation and bj' the im-
jMJsition of religious tests as a condition of residence, in which this
Government cannot concur. The United States nmst hold, in their
intercourse with every i)ower, that the status of their citizens is to
be respected and eipial civil privileges accorded to them without re-
gaixl to creed, and affected by no considerations save those growing
out of domiciliary return to the land of original allegiance, or of
unfulfilled personal obligations which may survive, under municipal
laws, after such voluntary return." (President Cleveland, annual
message. Dec. 8, 1885, For. Kel. 1885, xiv.)
As to the r<'fusal of the Turkish Government to recognize the American
citizenship of CJeorge Meimar, see For. Ilel. 1889, 718, 722.
" I have the honor to refer you to Secretary Bayard's instruction No. .30,
of July 2(>, 1887, in rei)ly to Mr. King's dispatch No. 328. of May 14,
1887, setting forth a number of cases of disputed nationality."
(Mr. Straus, min. to Turkey, to Mr. Blaine, Sec. of State, No. 195,
May 18, 1889, For. Rel. 1889. 718, 719.)
" It appears from a report of the j)refecture of police that a certain num-
ber of Ottoman subjects, inhabitants of Asiatic Turkey, betake them
furtively to America, and after remaining there for some time, return
to their country j)rovided with American passports, and claiming to
pass as citizens of the Ke[)ublic.
"As, according to the Ottoman law on nationalities, Ottomans have not the
right to acquire foreign naturalization without having first obtained
the autborizatiou of His Imperial Majesty the Sultan, the Sublime
§461.] expatriation: law of turkey. 685
Porte is unable to admit illegal cliaiige>4 of this nature, and begs the
United States legation to kindly send instructions to its consuls and
agents in the Empire that they may not eventually give their protec-
tion to this category of individuals — natives of the country — in order
to prevent difficulties with the Imperial authorities." (Said Pasha,
Turkish min. of for. aff., to Mr. Hirsch, Am. min., Jan. 9, 1892, For.
Rel. 1892, 533.)
, " In reply this legation begs to point out that five years' continuous resi-
■■.^^ ^ deuce in the United States, and the fulfillment of certain conditions
prescribed by law, entitle a foreigner to admission to citizenship, if
he may so desire, and to all the rights and privileges of an American
***^" citizen, among which is the right of travel, either for business or
,.«>kv pleasure. Anyone in the Empire duly in possession of an American
passport is entitled to the protection of the United States Government.
This legation, in consequence, finds itself unable to comply with the
request contained in the aforesaid verbal note that orders be issued
to the United States consuls in the Empire to refuse protection to
those naturalized American citizens, and permits itself to hope that
instructions may be given to the minister of police that shall insure
the respect due to every American passport presented." (Mr. Hirsch
to Said Pasha, Jan. 22, 1892, For. Rel. 1892, 534.)
" It is understood that by the laws of Turkey an Ottoman subject
can not divest himself of that character without the express sanction
of the Imperial Government. If without such authority he accepts
a foreign naturalization, it is regarded as of no effect both in reference
to himself and his children.
" It is further provided that every person who obtains naturaliza-
tion abroad or enters a foreign military service without the permission
of the Sultan may be declared to have forfeited his Ottoman charac-
ter, and in that case is altogether interdicted from returning to the
Ottoman Empire.
" The legation of the United States at Constantinople is frequently
called upon to intervene in behalf of returning naturalized citizens of
Turkish origin as to whose allegiance conflicting claims exist under
the laws of the two countries. Where circumstances place a person
under dual obligations in the state of origin and in the state of adop-
tion, it is not always practicable to cause the laws of one country in
respect to citizenship to be recognized and ai)[)lied in another country
when they conflict with the laws thereof, and when the individual has
voluntarily placed himself within the jurisdiction of the latter."
Mr. Gresham, Sec. of State, to Mr. McLean. Aug. 8, 1893, For. Rel. 1893,
6C0.
See, to the same effect. Mr. (Jresham. Sec. of State, to Mr. (Jabriel. July
18, 1803 ; Mr. Adee, Act. Sec. of State, to Mr. Gabriel. July 25, 1893 :
192 MS. Dom. Let. ()24, 081.
" The rules governing naturalized sul)jects of the leading European
powers who have been natives of Turkey, after their return to the
686 NATIONALITY. [§461.
Ottoman Empire, are more frequently found in instructions to diplo-
mats resident here than in statutory enactments. . . .
" Germany naturalizes and protects in third countries; but, in 1883,
instructed its consuls not to extend protection to those who were
natives of the Ottoman Empire when they return to Turkey.
" Italy instructs her diplomatic agents not to afford protection to
her naturalized subjects who were natives of Turkey. She conforms
substantially to the German rule.
" England, under an act of Parliament, writes on the face of every
passport that protection will be afforded its l)earer in all countries
except the country of his origin, if he left it without the consent of its
sovereign.
" Russia, like England, never protects a returning native of the
Ottoman Empire who left it without an imperial irade. This rule
does not apply to the natives of that portion of Asia Minor bordering
the Black Sea and extending to the interior ; that she acquired in her
last war; and, whether Turks or Armenians, those natives became
Russians by conquest and treaty, and are protected as native Russians
when in a foreign land.
" France never naturalizes a native of the Ottoman Empire born of
Ottoman parents unless he produces an imperial irade or authoriza-
tion, and will not protect him should he return to Turkey.
" Austria does not naturalize a Turk who owns real estate in Tur-
key ; she naturalizes others, and extends her protection in all countries
except Turkey.
" Belgium and IJolland naturalize on the consent of the country
or sovereign of the country of origin.
" I have not sought to ascertain the rule prevailing in the legations
of Spain and Sweden, deeming it of small importance, but will do so
if you desire.
" It w411 thus be seen how little our doctrine of the right of volun-
tary expatriation is recognized by the rest of the civilized world in
their dealing with Turkey.
" In my last interview^ with the grand vizier he said, with earnest-
ness, that Turkey would never consent that her subjects could change
their nationality without the Sultan's consent. He added: 'If war
is ever made on us for this we could not help it, and would defend as
best we could.' . . .
" For about thirty years the questions of naturalization and of
jurisdiction under article 4 of the treaty of 1830 have been subjects of
contention. As often as there seemed to be the prospect of a new
treaty, a change of administration, of a grand vizier, of a foreign
minister of Turkey, or of a minister from the United States, com-
pelled negotiations to begin de novo and no progress was made.
§ 461.] EXPATRIATION : LAW OF TURKEY, 687
" It is safe to assume that no new treaty can be made on either of
the subjects of disagreement referred to which does not embrace both.
" The anxiety at the Porte to have you adopt isuch a construction of
article 4 of the treaty of 1830 as will conform to rule a})plied to sub-
jects of European poAvers who are charged with crime, and will con-
fer the jurisdiction on their own courts, will, Avhen you can make some
concessions, tend greatly to help forward a treaty of naturalization."
Mr. Terrell, luin. to Turkey, to Mr. Gresham, See. of State, Sept. 17, 1894,
For. Kel. 1894, 703.
Mr. Gresham, replying. Oet. 20. 1894, cited Mr. Bayard. See. of State, to
Mr. Cox, mill, to Turkey, Nov. 28, 1885, For. Rel. 1885. 885. supra, and
said : " The Government of the United States and the American people
are too firmly committed to the principle of the right of expatriation to
be willing to abandon it in our negotiatious with the Ottoman Em-
pire." (For. Rel. 1894, 7e>4.)
" This Department can make no distinction between Syrians and Arme-
nians in treating with the Turkish Government any (piestions aris-
Hig concerning them. All that it can do is to endeavor to secure full
rights under treaty and capitiUation for every American citizen, re-
gardles-s of his origin. In this respect the Fnited States stand quiti!
alone, as England and the continental states do not claim for a nat-
uralized alien the immunities of his acquired nationality when he
returns to the country of which he was previously a subject unless
by law or treaty the latter recognizes his change of allegiance.'"
(Mr. Olney, Sec. of State, to Mr. Diaf, Oct. 10, 1890, 213 MS. Doui.
Let. 201.)
" The law of Turkey, like that of Russia and some other countries,
does not recognize mipermitted change of allegiance by a Turkish
subject ; but, although no treaty of naturalization exists between the
United States and Turkey in regulation of this point, no instance has
yet been pressed by the Turkish (lovernment in assertion of a right
to treat the individual' as a Turkish subject or to punish him for the
alleged offense of becoming a citizen of a foreign state without per-
mission."
Report of Mr. Olney, Sec. of State, to the President. .Tan. 22. ISO*!. S. Dor.
83, 54 Gong. 1 sess. ; For. Rel. 1895, II. 1471.
In the preceding part of the report it is stated that the Turicish Govern-
ment had pursued the course of expelling or e.vcludiiig the class of
persons in question.
Responding to a ])etition that the American minister at Constan-
tinople be instructed ''to propose and urge by every ])r()i)er diplo-
matic method a concession of the right of expatriation for Tiirkisli
subjects, with protection while in transit to the borders of (he Tui'kisli
Empire," Mr. Olney said: "This (Government recognizes tlie right of
expatriation, and has always been energetic in its cH'orts to |)rotect
American citizens whether of Turkish or other origfin. It has no
688 NATIONALITY. [§ 461.
international right, however, to intervene in behalf of those who are
not its citizens, or to interfere with the enforcement of laws for the
government of their own subjects by foreign countries."
Mr. Olney, Sec. of State, to Mr. Draper, March 12, 1896, 208 MS. Doni.
Let. 457.
See, as to the case of Mrs. Papazian. Mr. Ohiey. Sec. of State, to Messrs.
Foster's Sons, Nov. 14, 1890, 214 MS. Doiu. Let. 21.
The Turkish minister stated, in a note of Octobei" 20, 1898, that,
according to a determination reached by his Government six years
before, Ottoman subjects were not authorized to change their nation-
ality of origin except on engaging not to return to the Empire, and
that, as persons of the class in question, notwithstanding this engage-
ment, returned with foreign passports and asserted their alien quality,
which, in view of the decision of the council of state that Ottoman
subjects naturalized as foreigners must, on their return, Ix? considered
and treated as Ottoman subjects, gave rise to all sorts of difficulties,
the Turkish consuls had been instructed not to vise their passports.
The minister, therefore, requested that the necessary steps be taken
by the United States to avoid the difficulties mentioned.
The Department of State replied that, as the naturalization laws
of the United States made no special provision in regard to the sub-
jects of a country which forbade their expatriation without the con-
sent of their sovereign, the courts, to Avhich the exclusive power of
naturalization was committed, could not require of an applicant for
citizenship proof that his government had given him permission to
change his allegiance; that the Executive, on the other hand, could
not apply to the granting of a passport a condition not legally
requisite for the acquisition of citizenship; and consequently that it
did not appear what steps could be taken to avoid possible contro-
versy with regard to the application of the imperial rule.
Ferrouh Bey, Turkish min., to Mr. Hay, Sec. of State, Oct. 20, 1898 ; Mr.
Hay to Ferrouh Bey, Oct. 24, 1898: For. Rel. 1898, 1108, 1109.
See, as to the general question, Mr. Day, Sec. of State, to Mr. Straus,
min. to Turliey, Sept. 13, 1898, MS. Inst. Turlcey, VI 1. 274.
" In the Turkish Empire the situation of our citizens remains unsat-
isfactory. Our efforts during nearly forty years to bring about a
convention of naturalization seem to be on the brink of final failure
through the announced policy of the Ottoman Porte to refuse recog-
nition of the alien status of native Turkish subjects naturalized
abroad since 1809. Our statutes do not allow this Government to
admit any distinction between the treatment of native and naturalized
Americans abroad, so that ceaseless controversy arises in cases where
persons owing in the eye of international law a dual allegiance are
prevented from entering Turkey or are expelled after entrance. Our
§ -161.] . EXPATRIATION : LAW OF TURKEY. 689
law in this regard contrasts with that of the European states. The
British act, for instance, does not claim effect for the naturalization
of an alien in the event of his return to his native country, unless the
change be recognized by the law of that country or stipulated by
treaty between it and the naturalizing state."
President McKiuley, annual message, Dec. 5, 1899. (For. Rel. 1899,
xxxi.)
" I have to acknowledge the receipt of your letter of the 9th in-
stant, calling attention to a newspaper publication of the 8th instant
purporting to give a reportorial interview with Minister Straus, upon
his return from Turkey, to the effect that United States citizens may
now travel in Turkey, as the interdiction against this, caused by the
Armenian troubles, was removed eight months ago. In view of this
you asK wnetne.r you would be protected by this Government if you,
being a naturalized Armenian, should revisit your old home in
Armenia.
" Mr. Straus's statement was here understood to relate only to the
removal of the inhibition of the travel of American citizens, mission-
aries, and others of non-Turkish origin in Armenia during the late
disturbances in that quarter, and this understanding is confirmed by
Mr. Straus himself, who is now^ in Washington. As to our natural-
ized citizens of x^rmenian or other Ottoman origin, the situation
remains the same, in the absence of a treaty of naturalization be-
tween the two countries, the Turkish Government refusing to recog-
nize the naturalization of a Turkish subject naturalized abroad with-
out imperial consent since the promulgation of the Ottoman law of
citizenship in 1869. The United States controverts this position,
but unavailingly. In international law the status of such persons
conies under the doctrines of dual allegiance, each (iovernment claim-
ing and exacting the allegiance of its naturals Avithin its own juris-
diction and each being incapable of enforcing its own municipal law
of citizenship within the jurisdiction of the other. SuqIi conflicts
have been adjusted in many instances by conventions between the
United States and foreign powers, with the result of a nnitual recog-
nition of the validity of the naturalization of a citizen or subject of
the one country within the jurisdiction and according to the domestic
law of the other; but the conclusion of such a convention with the
Ottonuin Empire appears to be remote. As the consent of the Otto-
nuin Government to the expatriation of a subject by naturalization
in another country is only given upon the alternative condition that
the applicant for release from Turkish allegiance shall either stijMi-
late never to return or agree that in the event of return he will re-
gard himself as an Ottouuni subject, it follows that the case of per-
il. Doc. 551— vol 3 U
690 NATIONALITY. . [H^l.
mitted naturalization seldom occurs, and that when it does occur it
is attended with features which prevent this Government from using
a free hand in dealing with a question growing out of the return of
such a naturalized citizen to Turkish jurisdiction.
" While the Department and its diplomatic and consular agents in
the Turkish dominions will use every efl'ort now as always to protect
any naturalized citizen of Turkish origin who returns to Turkey, it
can not foresee that he will be permitted to enter the Empire, or that
having entered he will escape molestation or expulsion."
Mr. Hay, Sec. of State, to Mr. Garabedyan, Feb. 19, 1900, For. Rel. 1900,
938.
With reference to Mr. Hay's statement, which is similar to that made
in President McKinley's message of Dec. 5, 1899, svipra, tliat Turlcish
subject, naturalized in the United States, owe, inider " international
law," a " dual allegiance." it is to be observed that, according to the
doctrines of expatriation, as embodied in the act of 1868, naturaliza-
tion invests the individual with a new and single allegiance, absolv-
ing him from the obligations of the old. It is true that many
publicists say that a dual allegiance results, but they obviously do
not accept the theory of the act of 1808. That natiu'alization merely
adds a new allegiance to the old is the position of those who deny
the claim of voluntai-y expatriation. See Moore, American Diplo-
macy, 169-171, 191-192.
A copy of the letter to Mr. Garabedyan was inclosed by Mr. Hay, Feb. 19,
1900, to the legation at Constantinople for its information, together
with a memorandum made by Mr. Straus, at Washington, Feb. 10,
1900, which was, in part, as follows :
" In view of the fact that we have no treaty of naturalization with Tur-
key— and the fact that in 1869 a law was promulgated denying the
right of Ottoman subjects to acquire foreign naturalization without
the previous written consent of the Sultan — such Ottoman, subjects
of origin who in violation of this law have acquired foreign nation-
ality, their acquired citizenship, upon their return to Ottoman ter-
ritory, is not recognized, and it is not advisable, especially for
Armenians, who are mostly X'egarded as suspects on returning from
foreign countries to Turkey, to come under Ottoman jurisdiction.
Each returning subject of origin raises the question of the conflict
of sovereignty, with the advantages in favor of the Turkish Govern-
ment while its subject of origin is within Ottoman jurisdiction.
" This question seldom arises in respect to other iwwers, as they either
will not protect naturalized citizens on their return to Turkey, their
country of origin, or they refuse to naturalize them except upon
producing the written consent of Ottoman authorities. As that con-
.sent is only given upon the api)licant stipulating either not to return
or in the event of his return lie agrees to regard himself as a Turk-
ish subject, it follows that the question seldom arises.
"Pending the absence of a treaty of naturalization, Turkish subjects of
origin will come under the disadvantage caused by the conflict of
sovereignty."
To the same effect as Mr. Hay's letter of Feb. 19. 1900, see Mr. Hay,
Sec. of State, to Mr. Garabedyan, Dec. 9, 1899. 241 MS. Dom. Let.
484; Mr. Hill, Act. See. of State, to Mr. Rustum, May 25, 1900, 245
§ 462.] EXPATKIATION : LAW OF TURKEY. 691
MS. Dom. Let. 285; Mr. Hill, Assist. Sec. of State, to Mr. Kouri,
July 12, 1900, 246 id. 370 ; Mr. Hill, Act. Sec. of State, to Mr. Lodge,
Jan. 12, 1901, 250 id. 200 ; Mr. Hay, Sec. of State, to Mr. Beveridge,
Jan. 16, 1901, id. 238 ; Mr. Adee, Second Assist. Sec. of State, to Mr.
Papazian, Jan. 28, 1901, id. 426.
" The information given below is believed to be correct, yet it is not
to be considered as official, as it relates to the laws and regulations of
a foreign country.
" The Turkish Government denies the right of a Turk to become a
citizen of any other country without the authority of the Turkish
Government. His naturalization is therefore regarded by Turkey as
void with reference to himself and his children, and he is forbidden
to return to Turkey.
" The consent of the Turkish Government to the naturalization in
another country of a former Turk is given only upon condition that
the applicant shall stipulate either never to return, or, returning, to
regard himself as a Turkish subject. Therefore, if a naturalized
American citizen of Turkish origin returns to Turkey he may expect
arrest and imprisonment or exi)ulsion.
" Jews are prohibited from colonizing in Turkish dominions."
Circular Notice, Department of State, Washington, Jan. 22, 1!^K)1, For Rel.
1901, 515.
As to the vise of passports of Jews going to Pnlestino, see Mr. Hill, Act.
Sec. of State, to the Turkish uiin., Jan. 7, 1899, MS. Notes to Turkish
Leg., II. 165.
(d) pknai.tiks ani) i'ktiiuons.
§ 46l>.
" I herewith inclose copies of letters froui Mr. J. J. Arakelyan, of
Boston, of the Kith and 25)th ultimo, couiplainiug that the (iovern-
ment of Turkey imposes taxes uj)on and exacts onerous duties of his
relatives ill the town of Arabkir, owing to his alisence.
" Upon the receipt of Mr. Arakelyan's letter of the KUh, he was
told that before any measures could be taken in the i)remis('s h(> must
furnish jjroof of his natural izatiou. His letter of the 'JOtli, therefore,
inclosed a certified copy of such papers.
" Taxation may no doubt be imi)()sed, in couformity with the law
of nations, by a sovereign on the property within his jurisdiction of
a person who is domiciled in and owes allegiance to a foreign coun-
try. It is otherwise, however, as to a tax imposed, not on such prop-
erty, but on the person of the jjarty taxed when elsewliere domiciled
and elsewhere a citizen. Such a decree is internationally void, and
an attempt to execute it by penalties on the relatives of the party
taxed gives the person as taxed a right to appeal for diplomatic
intervention to the Government to which he owes allegiance. To
692 NATIONALITY. [§ 462.
sustain such a claim it is not necessary that the penalties should have
been imposed originally and expressly on the person so excepted from
jurisdiction. It is enough if it appears that the tax was levied in
such a way as to reach him through his relatives.
" It is desired, therefore, that you bring the complaint of Mr. Ara-
kelyan, as cited in the inclosed copies of his letters, to the notice of
the Ottoman Government, requesting that the sum received for anj'
taxes imposed on his relatives on his account be refunded, that the
value of the road stu'vices rendered by Mr. Arakelyan's brother be re-
turned, and that no further taxes on account of Mr. Arakelyan be
imposed on his family."
Mr. Porter, Act. Sec. of State, to Mr. Emmet, charge at Constantinople,
No. 20:}, June 8, 1885, For. Ilel. 1885, 848.
" I have the honor to report that during an interview had with the
minister of foreign affairs, on the 20th inst., the particulars of dis-
patch No. 293 were fully discussed, with the following result :
" His excellency presupposes that at the time Mr. J. J. Arakelyan
left his native town, Arabkir, some of his relatives entered into bonds,
thereby enabling him to absent himself from home, and hence the ex-
action of taxes and labor on his behalf since his departure.
" If Mr. Arakelyan will take the trouble to file a petition with the
Turkish minister in America, setting forth the facts of his case, his
reason for becoming naturalized, and exhibiting the proofs of his nat-
uralization, the minister will forward a communication to the author-
ities of his former home, and have his name stricken from the records,
thus relieving his parents from the burden of further taxation or
labor on his account. As to the restitution of moneys already dis-
bursed, or remuneration for labor performed, his excellency said
there would be no hope for recovery. In his own words, ' We will
forgive him for the future, and he must forgive the Turkish Govern-
ment for the past.'
" The system of bonding would-be absentees is quite a general
practice in Turkey, and will undoubtedly be found the origin of the
above case."
Mr. Emmet, charge at Constantinople, to Mr. Bayard, Sec. of State, No.
510, July 23, 1885, For. Ilel. 1885, 854.
A Turk who has, since 1869, been naturalized abroad without hav-
ing obtained an Imperial irade consenting to his expatriation, is de-
barred from inheriting from Ottoman subjects, notwithstanding that
the property may have been, acquired through his thrift and indus-
try; and, in case he purchases property in Turkey, he can bequeath
it only to such subjects. As to the restitution of moneys already
disbursed or remuneration for labor performed, the Turkish minis-
§ 462.] EXPATRIATION : LAW OF TURKEY. 693
ter of foreign aifairs stated that there was no possibility of recovery
on those accounts.
Mr. Bayard, Sec. of State, to Mr. Arakelyan, Aug. 17, 1885, 156 MS. Dom.
Let. 554, citing dispatch from Mr. Emmet, cliarge at Constantinople,
No. 516, July 2.3. 1885.
"The facts, in brief, of my coming to tlie United States, and becoming
one of its citizens, are as follows : When I was a boy, and my father
was residing at Erzeroom, away from his family, he sent for me to
join him there, leaving Arabkir, where I was born. While I was at
Erzeroom my father's Imsiness compelled him to go to Trebizond.
leaving me alone for two years, in which time a few of my friends,
with myself, became desirous to go to the United States. Accord-
ingly, in 18G6, five of us left Erzeroom for this comitry, but when we
reached Trebizond, where my father still was, he .at once objected
to my plan, and my companions continued their journey witliout me.
At length my father, seeing that I should never be satisfied till I
reached America, embraced the opportunity to let me go in the
spring of 1867 with an American family. Mr. M. P. Parmelee and
family, who were at Trebizond as missionaries of the American Board
of Commissioners for Foreign Missions.
" On reaching Constantinople we met a Mrs. Walker, whose husband had
died at Diarbekir, and she had come to Constantinople with her
children to join other missionaries in returning to tliis country. I
was then engaged to assist her in the care of her family from Con-
stantinople to Boston, where we arrived July 15, 1867. going at once
to her father's home at Auburndale, Mass., where I remained, study-
ing, about one year. From there I went to Riverside Press, Cam-
bridge, Mass., Messrs. II. O. Houghton & Co., proprietors, with the
intention of learning the art of i>rinting, and returning to Turkey.
"But as time went on my plans changed. On the 4th of .lune, 1S7'.I, I
married an American lady at her home in Lancaster, Mass. In
February, 188.3, I left the Riverside Press, and opened a book and
newspaper printing office at 226 Franklin street, Boston, where I
still continue in business, residing at Cambridgeport, Mass., where I
have been naturalized, as you already know, having in your posses-
sion a certified copy of my naturalization i)aper.
" Please observe, in view of the above facts, that there have been no
obstacles to my coming to this country besides my fatiier's luiwill-
ingness to i)art with his son, at first, and that no one has ever en-
tered into bonds for me that I know of, nor did I ever hear of such
a custom, as I nmst have done had any such arrangement been
entered into for me, as the Turkish minister of foreign affairs i»re-
supposes.
"There is no need to state that the facts in the case do entitle me to the
protection and ])rivileges of a citizen of the I'nited States, and I feel
sure that since you have so kindl.v and faithfully done so much
already for me and for the right, you will eventually, with j^er-
sistence, see wrongs righted and satisfaction gained." (Mr. Arakel-
yan to Mr. Bayard, Aug. 20, 1885, For. Rel. 1SS5, 861.)
Where a Turk has been naturalized in the United States since
1869 without the consent of the Sultan, such consent can be ol)tained
only b}' a petition to His Majesty sent through the Turkish minister
694 NATIONALITY. [§ 462.
at Washington. This petition sliould be duly sworn to, should set
forth the circumstances under Avhieh the petitioner left his native
land, and should be accompanied with the evidence of his naturaliza-
tion. The Department of State can not predict the result of such
a petition; but the Department, if furnished with a copy of the
petition in duplicate, will instruct the American minister at Con-
stantinople to render such aid as may l)e found ])roper.
Mr. Bayard, Sec. of State, to Mr. Arakelyan, Aug. 17, 1885, 156 MS. Dora.
Let. 554; Mr. Porter, Act. Sec. of State, to Mr. Arakelyan, Feb. 13,
1886, 1.59 MS. Dora. Let. 68; Mr. Oliiey, Sec. of State, to Mr. Ghiz,
Oct. 27, 189<'>. 213 MS. Dora. Let. 410; Mr. Mill, Assist. Sec. of State, to
Messrs. Michaelian Brothers, June 20, 1890, 2.38 MS. Dora. Let. 116;
Mr. Hill, Assist. Sec. of State, to Messrs. Bogbasian, Dec. 14, 1900, 249
MS. Doni. Let. 491 ; Mr. Adee, 2nd Assist. Sec. of State, to Mr. Sbibley,
Jan. 26, 1901, 250 MS. Dom. Let. 413.
• Tbe Department of State can not decide as to tbe phraseology wbicb tbe
petitioner shall employ. He must use language and fiu'nisb evidence
" which would prove acceptable to the Turkish repi-esentative," to
whom the petition "must necessarily be addressed." (Mr. Bayard,
Sec. of State, to Mr. Arakelyan. Feb. 25, 1886, 159 MS. Dom. Let. 160.)
The cases referred to in the letters above cited related chiefly to the
imposition of taxes on relations of the naturalized citizens.
In one case comjilaint was made of the exaction from a brother in Tur-
key of a poll and military tax assessed against the complainant and
his four brothers in tbe United States. (Mr. Olney to Mr. Ghiz,
supra.)
In another case a person in Turkey was required to pay the personal
taxes of his brother and three cousins, who were in the United States,
and of whom all but one had become naturalized citizens. (Mr.
Hill to the Michaelian Brothers, supra.)
In yet another case release was sought from assessment poll taxes. (Mr.
Hill to the Messrs. Bogbasian. supra.)
In each case the coraplaiuant was advised of the Turkish requirement, as
above set forth.
For other and similar cases of poll or military taxes, with similar advice,
see Mr. Adee, Second Assist. Sec. of State, to Mr. Deosharaajian,
Oct. 2, 1900, 248 MS. Dom. Let. 202; Mr. Hill, Assist. Sec. of State,
to Mr. Kachadoorian, Jan. 4, 1901, 250 MS. Dom. Let. 83; Mr. Cridler,
Third Assist. Sec. of State, to Mr. Sbibley, Jan. 9, 1901, 250 MS. Dom.
Let. 147.
Mr. Bayard stated, Aug. 3, 1886, that all efforts to have Mr. Ara-
kelyan's American allegiance recognized by the Turkish Government
" were without avail," except on condition that he should " obtain
the Imperial irade spoken of in the Turkish law." Mr. Arakelyan
accordingly presented a petition to the Turkish minister at Wash-
ton, and the American minister at Constantinople Avas instructed to
support it.
Feb. 7, 1889, Mr. Straus, then American minister at that capital,
transmitted to his Goverinnent the official act of the Turkish Govern-
ment, recognizing Mr. Arakelyan's American citizenship.
§ 462.] EXPATRIATION : LAW OF TURKEY. 695
Mr. Bayard, Sec. of State, to Mr. Randall, Aug. 3, 1886, 161 MS. Dom.
Let. 138; INIr. Straus, min. to Turkey, to Mr. Bayard, Sec. of State,
No. 37, Oct. 24, 1887, 47 MS. Desp. Turkey ; Mr. Bayard, Sec. of State,
to Mr. Straus, No. 110, June 13, 1888, MS. Inst. Turkey, IV. 669 ; Mr.
Straus to Mr. Bayard, No. 171, Feb. 7, 1889, 48 MS. Desp. Turkey.
The paper in question was sent on to Mr. Arakelyan, who paid the cost
of obtaining it, amounting to $4.31. (Mr. Blaine, Sec. of State, to
Mr. Straus, min. to Turkey, No. 198, March 18, 1889, MS. Inst.
Turkey, V. 49.)
The case of Arakelyan is mentioned in Mr. Adee, Second Assist. Sec. of
State, to Mr. Eguiman, June 16, 1890, 178 MS. Dom. Let. 45.
In May, 1892, the American legation at Constantinople was instructed to
exercise its good offices in behalf of the petition of Mr. Dikran
Taylor, for release from Ottoman citizenship. (Mr. Blaine, Sec. of
State, to Mr. Hirsch, min. to Turkey, No. 325, May 11, 1892, MS. Inst.
Turkey, V. 349.)
In 1896 it was stated that the only trade, of which the Department of
State had " recent knowledge," was that granted to Mr. Arakelyan.
(Mr. Rockhill, Act. Sec. of State, to Mr. Beshgetour, Aug. 3, 1896,
211 MS. Dom. Let. (520.)
" I have the lionor to inform you that I have finally secured the
promise of this Government to recognize Garabed Kevorkian, a
naturalized Armenian, as a citizen of the United States. He was the
subject of your dispatch No. 33 of August 8, 1893. He was natural-
ized without the consent of the Sultan, long after the Turkish law of
1869, but made his declaration of intention to become a citizen of the
United States before that date.
" The recognition by the Porte of his citizenship, as dating from
the time when the ' declaration of intention ' was filed, has not been
without difficulty ; especially since in this case about ten years was
permitted to elapse before naturalization. . . . This man's civil
rights were not threatened. He had made a trade and wished him-
self described in the deed as a citizen of the United States."
Mr. Terrell, min. to Turkey, to Mr. Gresham, Sec. of State, Oct. 12, 1893,
For. Rel. 1893, 692.
See. also. For. Bel. 1893, 651, 703.
" The Department is in receipt of your letter of INIay 26th last in
regard to the litigation concerning certain real property pending in
Turkey between your step-brother and yourselves.
" It appears from a report received from our legation at Con-
stantinople that the laws of Turkey regard persons of Ottoman birth
who changed their nationality before 1869, or with the consent of the
Imperial Government, as foreigners, and such persons can claim the
benefits of the law of January 18, 1867. conceding to foreigners the
right of holding real estate in the Ottoman Empire, the special law
relating to Ottoman subjects who had changed their nationality
not having been enacted.
696 NATIONALITY. [§ 463.
" Ottoman subjects who have been naturalized since 1800, without
the Imperial sanction, are, notwithstanding, regarded by Turkish
law as subjects, and such persons are unable to accomplish any act
affecting their real property before a Turkish court or bureau un-
less they accept the designation of ' Ottoman subject.'
' " There is a provision of law by which this latter class may have
pronounced against them a judgment involving the loss of Ottoman
citizenship and entailing the forfeiture of (heir real property, but it
is stated that this provision has never been put into practice by the
Ottoman Government.
' " In any event it will be necessary for you to establish your title
to the property in the courts of Turkey, and this Government could
only intervene in case of a denial of justice or of treaty rights."
Mr. Adee, Act. Sec. of State, to Me.ssrs. Seropiiiii Brothers, August (5, 1897,
220 MS. Dom. Let. 12.5.
See, also, Mr. Adee, Second Assist. Sec. of State, to Mr. Zabriskie, Sept.
22, 1900, 248 MS. Dom. Let. 102.
" By the law annexed to the real estate protocol of August 11,
1874, between the United States and the Ottoman Porte, . . . the
right of subjects of Ottoman birth who have changed their nation-
ality to hold and presumably to inherit real estate, is to be governed
by a special law. The Turkish Government holds that the law of
nationality, which refuses recognition of the acquisition of a foreign
nationality by a Turk who has become naturalized abroad without
Imperial consent, operates as a special law to deprive an Ottoman
subject, so naturalized sin<:e 1869, of the right to hold real estate as
an alien."
Mr. Moore, Act. Sec. of State, to Mr. Pashayan, Sept. 9, 1898, 231 MS.
Doui. Let. 292.
(e) EXPULSION CASES.
§ 463.
" I have to acknowledge the receipt of your No. 188 of the 21st
ultimo in regard to the attempted expulsion of Dr. Abkarian, a
naturalized citizen of the United States, from Turkey. You state
that on the evening of the 20th of November you were called ui)on
at your residence by Naoum Effendi, Avho is in charge of the foreign
correspondence at the ministry of foreign affairs and were informed
by him that an order had been received from His Highness the Grand
Vizier, based upon information from the minister of police, for the
expulsion of Dr. Abkarian, who is of Armenian parentage, and who
arrived in Turkey from the United States over two months ago, on
the ground that he is a man dangerous to the public peace. You
state that no evidence that he is such a man has been offered to you,
§ 463.] EXPATRIATION : LAW OF TURKEY. 697
and you are at present unable to state what the charges against him
may be, but that you are promised such information as the foreign
office may be able to obtain from the minister of police.
" It seems that Dr. Abkarian has left Constantinople, perhaps for
Sivas, and that from the steamer in which he took passage he wrote
a letter, the purport of which is not altogether clear. He says it was
impossible for him to remain in Constantinople longer than a week
or more with justice to himself and to the ' cause ' for which he had
' commenced ' his ' travelling.'
" In view of the questions raised in this case, the Department
would find it difficult to instruct you by telegraph, as requested.
You advert to the fact that the power to expel foreigners is one
incident to sovereignty, but at the same time suggest a doubt whether
it may be exercised arbitrarily, even in a country where there are
political disturbances, such as at present exist in Turkey, and espe-
cially where, owing to the capitulations, extraterritoriality is en-
joyed by foreigners. This question, as you observe, is one of great
importance to all naturalized Americans in Turkey.
" It can not be maintained that in respect to foreigners within her
territory Turkey exercises the rights ordinarily inherent in terri-
torial sovereignty. Her control over her foreign population is lim-
ited, both by the capitulations and by treaties. Next to the right to
try foreigners for offenses, the most important power that a govern-
ment can exercise in regard to them is that of expulsion. In the full
exercise of this power it would be possible virtually to avoid the re-
sults of the concession of extraterritorial privileges. This fact ap-
l)ears to be conceded by the Porte in its appeal to you in the present
case.
'' Putting aside the question of jurisdiction as to the punishment of
offenses, which has been amply discussed in the pending case of
Serope (lurdjian, there are stipulations in the treaty between the
United States and Turkey which would seem to be inconsistent with
the free and independent exercise by the Porte of the power of ex-
])ulsion. . ' Citizens of the United States,' says article 4 of the treaty
of 1<SH0, 'quietly pursuing their commerce and not being charged or
convicted of any crime or offense, shall not be molested; even when
they may have committed some offense, they shall not be arrested and
put in prison by the local authorities.' Such is the language of the
article as officially published by the United States. According to
the French translation of the original Turkish as furnished by the
Turkish (Tovernment, the stipulation may be expressed as follows:
'American citizens peaceably attending to matters of connnerce shall
not be molested without cause, so long as they shall not have com-
mitied any offeuse or fault, and even in case of culpability they shall
not be imprisoned by the judges and police agents.' In the case of
698 NATIONALITY. [§463.
Gurdjian it was expressly admitted by the Turkish Government that
its police agents had no authority to arrest citizens of the United
States, and accordingly regret was expressed for the arrest in that
case, and a promise made that the offending officials would be pun-
ished. Without the power to arrest the power to execute the decree
of expulsion is absent, and in the end the appeal must be made to the
minister of the United States, as has been done in the present case.
" While you are not informed of the specific grounds of complaint
against Dr. Abkarian, you conjecture that, whether well founded or
not, they may have some connection with the present Armenian agita-
tion. In this relation it is proper to observe that it is a well-settled
principle of international law that foreigners are not justified in
intermeddling with the politics of the country in which they reside.
Such a course of conduct is incompatible with their claim of foreign
nationality and can not be sustained by their government, for the
reason that to do so would he to claim the right of intervention and
control in the domestic affairs of other countries. The Government of
the United States is always disposed to maintain the just claims of
its citizens abroad. This disposition it has fully illustrated in its
care for its citizens residing in Turkey, both native and naturalized.
It is well known that, in regard to the latter, the Turkish Govern-
ment has made strong objections to the exercise of some of the rights
claimed by this Government, but this Department has never ad-
mitted any discrimination in their treatment and has extended to
them the fullest measure of protection. This it has done to them as
citizens of the United States who, in swearing allegiance to this
Government, have renounced their political connection with that of
their origin. In returning to their native country they are bound to
act consistently with their new relations and to abstain both from
political agitation and from any connection with political interests
from which they have dissociated themselves. To mix in the politi-
cal affairs or to be concerned in movements against the government
of the country whose allegiance they have renounced is grossly at
variance with their pretensions and a practical renunciation of their
newly acquired citizenship. The Government of the United States
can not, by sustaining such conduct, become a party to it.
" As the Department is not informed of the facts upon which the
complaint against Dr. Abkarian is founded, it is unable to give you
specific instructions as to your course in regard to it. But it is not
the purpose of this Government to employ its power so as to enable
Ottoman subjects who have obtained naturalization in the United
States to return to their native country and engage in political agita-
tion.
" These general views are conveyed to you for your information as
to the way in which the Department regards the various questions
§463.] expatriation: law of turkey. 699
lately raised. Further and more specific instructions will be sent you
as occasion may arise."
Mr. Blaine, See. of State, to Mr. Hirsch, min. to Turkey, No. 147, Jan, 14,
1891, MS. Inst. Turkey, V. 19G.
See, also, Mr. Blaine to Mr. Ilirscb, No. 148, Jan. 14, 1891, MS. Inst.
Turkey. V. 200.
As to Gurdjian's case, see supra, § 284 ; and Mr. Gresham, See. of State,
to Mr. Terrell, niin. to Turkey, Feb. 9, 1894, For. Rel. 1894, 75.3.
" Mr. Gresham recognizes as an attribute of sovereignty the right
of Turkey to exclude aliens, and to deport or expel undesirable classes
or individuals; the absence of a treaty of naturalization makes it
impossible to insist that the naturalization of Armenians in the
United States shall be respected by that Government. He instructs
Mr. Terrell to use his best efforts for the relief of arrested persons
without losing sight of the foregoing."
Mr. Gresham, Sec. of State, to Mr. Terrell, min. to Turkey, tel. Oct. 27,
189.3, For. Rel. 1893, (599.
See, also. For. Rel. 1893, 084, 685-088, 089. 093.
" Mr. Terrell reports that the Turkish Government will relinquish the
right of imprisoning returning Turkish subjects naturalized in the
United States without the consent of the Sultan since 1809 and will
confine the assertion of its rights to expel undesirable persons or
classes of American citizens to such subjects." (Mr. Terrell to Mr.
Gresham, tel., Nov. 15, 1893, For. Rel. 1893, 702.)
" Mr. Gresham acknowledges receipt of Mr. Terrell's telegram of the 15th,
instructs him to protest against punishment of Armenians who have
become citizens of the United States as criminals, as well as against
their being imprisoned on any gromid for too long a time, although
admitting that the I'orte has the right to expel them and, incidentally,
to arrest them for the purjiose of expulsion." (Mr. (Jresham to Mr.
Terrell, tel., Nov. 18, 1893, For. Rel. 1893. 70.3.)
See, also, memorandmn of couvei'sation between Mr. Terrell and Said
Pasha, Nov. 14, 1893. For. Rel. 1893, 704; and Mr. T'hl, Act. Sec. of
State, to Mr. Terrell, Dec. 7, 1893, For. Rel. 1893, 700.
" Your excellency will doubtless recall the interviews which I have
had with you concerning the arrest of two individuals — one at Sa-
lonica and the other at Constantinople. In response to the telegrams
on the subject which I thereupon sent to His Excellency Said Pasha,
I have just received, this very day, his rei)ly. Here it is:
"Article C of the Law of the Ottoman Nati(mality gives to the Im-
perial Government the right to declare loss of the quality of an
imperial subject against any Ottoman subject who shall have been
naturalized in foreign parts without the authorization of his Sover-
eign. In this case, by the terms of the said article, the loss of the
quality of an Ottoman subject entails as of full right the interdiction
of the return to the Ottoman Empire of him who may have incurred it.
" On the other hand, it is known that our naturalization conven-
700 NATIONALITY. [§ 463.
tion could not hitherto be put in operation on either part, so that we
can not act at present in respect of such former Ottoman subjects as
may return to Turkey after having acquired American nationality
without prior authorization of His Imperial Majesty the Sultan, ex-
cept by applying to them either the 5th article of the law in question,
which authorizes the imperial authorities to treat them simply in the
character of an Ottoman subject as in the past, or the above-cited
provisions of the Gth article of the same law.
" The arrest of the two above-mentioned individuals is therefore
thus explained. The Imperial Government, which had ground to
suspect their political intentions as former Ottoman subjects, was con-
strained to decree their expulsion in application of the sixth article
above cited. Their arrest, ordered to this end, has, moreover, been
only provisional.
" I hope that the foregoing explanations will satisfy your excel-
lency, and that they will prove to you that the measures enforced by
the imperial authorities, are not arbitrary, but are in all points in
conformity with the laws and regulations of the Empire."
Mavroyeni Bey, Turkish min., to Mr. Greshaui, Sec. of State, Nov. 22,
1893, For. Rel. 1893, 713.
For the text of the Ottoman Law of Nationality of Jan. 19, 1869, and of a
circular of March 26, 18(!9, in relation thereto, see For. Rel. 1893,
714-715.
" I have the honor to acknowledge the receipt of your note of the
22d instant, in which you present certain considerations touching the
treatment of persons of Armenian origin who may return to Turkey
after having been naturalized in the United States.
" The cited articles 5 and 0 of the Ottoman law of January 19, 1869
(6 Cheval, 1285), and the announced policy of the Turkish Govern-
ment in the application thereof, have had my careful attention.
" In proceeding under the sixth article, whereby declaration by the
Imperial Government of loss of Ottoman nationality is claimed to be
followed by the right of exclusion or expulsion of the returning Ar-
menians, the Turkish Government removes all question as to the
citizenship of the person, and rests its action on the very generally
conceded claim of the right to exclude or expel aliens whose coming
within Ottoman jurisdiction may be deemed objectionable.
" I am gratified to learn that, as was confidently to be expected, this
treatment of the returning naturalized Armenian as an undesirable
alien involves, in case he be found within Turkish territory, no other
arrest or detention than such as may be necessary to accomplish the
deportation of the individual, thus excluding the punitive phase,
which might be open to serious contention."
Mr. IJhl, Act. Sec. of State, to Mavroyeni Bey, Turkish uiin., Nov. 28,
1893, For. Rel. 1893, 715.
§463.] expatriation: law of turkey. 701
" Turkey complains that her Armenian subjects obtain citizenship
in this country, not to identify themselves in good faith with our peo-
ple, but with the intention of returning to the land of their birth and
there engaging in sedition. This complaint is not wholly without
foundation. A journal published in this country in the Armenian
language openly counsels its readers to arm, organize, and participate
in movements for the subversion of Turkish authority in the Asiatic
provinces. The Ottoman Government has announced its intention
to expel from its dominions Armenians Avho have obtained naturaliza-
tion in the United States since 1868.
" The right to exclude any or all classes of aliens is an attribute of
sovereignty. It is a right asserted and, to a limited extent, enforced
by the United States, with the sanction of our highest court. There
being no naturalization treaty between the United States and Turkej^,
our minister at Constantinople has been instructed that, while recog-
nizing the right of that Government to enforce its declared policy
against naturalized Armenians, he is expected to protect them from
unnecessary harshness of treatment."
President Cleveland, annual message, Dec. 4, 18!).'^, For. Rel. 189.'i, x.
As to the journal above referred to, see For. Rel. 1893, 712-713.
For the expressions of the Turkish Government concerning the Presi-
dent's message, see For. Rel. 1894, 728.
" In my last annual message I adverted to the claim on the part of
Turkey of the right to expel, as persons undesirable and dangerous,
Armenians naturalized in the United States and returning to Turk-
ish jurisdiction. Numerous questions in this relation have arisen.
While this Government ac(iuiesces in the asserted right of exi)ulsion
it will not consent that Armenians may be imprisoned or otherwise
punished for no other reason than having acquired without imperial
consent American citizenship." (Presi<lent Cleveland, annual mes-
sage, Dec. 3, 1894, For. Rel. 1894, xv.)
"As was declared by the President, in his annual message of the 4th
of December last, the right to exclude any or all classes of aliens is an
attribute of sovereignty, asserted and, to a limited extent, enforced
by the United States themselves with the sanction of their highest
court. While the President, in the absence of a treaty of naturaliza-
tion, recognized the right of the Turkish (Jovernment to enforce its
policy against naturalized Armenians, he made no announcement
inconsistent with the position that excluded or ex])elled Armenians
may claim the protection of this (iovernment as naturalized citizens,
" The Turkish (iovernment has, however, apparently not compre-
hended the nature of the concession nuide by the (iovernment of the
United States, or apprehended the extent of the duty of this Govern-
ment in respect to persons whose American citizenship is thus placed
beyond question. . . .
" (^ttonum subjects who voluntarily leave their native land and are
duly naturalized here become clothed with full rights of citizenship,
702 NATIONALITY. [§463.
and are entitled to the protection of this Government in Turkey
against all claims of that Government originating after naturaliza-
tion. And while the sovereign right of Turkey to exclude, and under
j)roper circumstances to expel, undesirable classes of people from the
imperial dominions is recognized, the United States can not and will
not. consent that their naturalized citizens formerly the subjects of
Turkey shall be there imprisoned or otherwise punished simply be-
cause they have become invested with citizenship here without the
imperial permission.
" It follows that, while such arrest and detention as may be fairly
incident to the exclusion or deportation of such persons will not be
objected to when directed to the single purj^ose of preventing their
sojourn in the Ottoman Empire, the right to arrest and imprison them
for other purposes is not conceded."
Mr. Gresham, Sec. of State, to Mr. TeiTell, luin. to Turkey, March 29, 1894,
For. Rel. 1894, 754, 755-756.
Mavroyeni Bey, Turkish minister at Wnshington, comuuuiicated to Mr.
Gresham, Sec. of State, April 5, 1894, a telegram from Said Pasha, min.
of for. affairs, reading as follows :
" Please allow no doubt to remain in the mind of the Government of the
United States on the following question : The Cabinet of the United
States is under the impression that we imprison Ottoman subjects,
naturalized citizens of the United States, who return to the Empire,
because they have changed their nationality. Such, however, is not
the case, for, in the first place, such a procedure has never been fol-
lowed to this day. In the second place, the law directs that all our
subjects who have themselves naturalized abroad without complying
with the laws and regulations bearing on the question, shall be pro-
hibited from returning to Turkey, and when any of their number
return to the country of their origin we are content with expelling
them from the Ottoman territory. If, then, some few among these
latter are imprisoned, it is certainly not by reason of their naturali-
zation in the United States, but solely for some difficulty they may be
involved in with the law." (For. Rel. 1894, 772.)
See, however, the cases of the prolonged detention and final expulsion of
Mr. Arakjinjian, and of Mrs. Toprahanian and her two children, at
Alexandretta. (For. Rel. 1894, 769, 770, 771, 772-774, 775, 777.)
" I have the honor to acknowledge the receipt of your No. 184 of
May 16, instructing me to ' examine and report Avhether Turks
naturalized in other countries receive the same treatment as those
who become citizens of the United States;' and also inclosing an
anonymous petition to the President, the most important statement
in which is ' that unnaturalized Armenians and Armenian citizens
of countries other than the United States are allowed to return ' to
Turkey, while those naturalized in the United States are not. . . .
"With regard to the naturalization cf Turks in foreign countries,
three different systems seem to prevail, caused by the fact that Turkey
still holds to the doctrine of perpetual allegiance.
§463.] expatriation: law of turkey. 703
"(1) In some countries, of which France is a type, a Turk is not
admitted to citizenship unless he produces the evidence of the im-
perial sanction to his change of nationality. In these countries all
conflict of laws with Turkey concerning nationality is thus avoided.
"(2) In Great Britain Turks may be naturalized Avithout having
obtained the imperial consent, but they are no longer protected or
considered as British subjects if they return to the Ottoman Empire.
All British passports of naturalized citizens contain the following
language :
" This passport is granted with the qualification tliat the bearer shall not,
when within the limits of the foreign state of which he was a subject previously
to obtaining his certificate of naturalization, l^e deemed a British subject, unless
he has ceased to be a subject of that state in pursuance of the laws thereof, or
in pursuance of a treaty to that effect."
" Here, also, no conflict of laws arises between Turkey and Great
Britain.
"(3) The Government of the United States would seem to be the
only one which admits Turks to citizenship without their having
obtained the imperial sanction, and in addition claims them as citi-
zens in Turkey as well as in all other countries. Thus there is a
conflict of laws between America and Turkey over all Turks natural-
ized in the United States without imperial consent who return to the
Ottoman Empire.
" The statement ' that unnaturalized Armenians and Armenian citi-
zens of countries other than the United States are allowed to return '
is probably true, for the former have, of course, never ceased to be
Turks, and the latter become Turks again as soon as they return, as
they have never been given up by Turkey and fire now no longer
claimed by the country which naturalized them. Hence, whatever
treatment they might receive when they returned to Turkey would
not be made the subject of an official communication by a foreign
power claiming them as citizens.''
Mr. Riddle, charge at Constantinople, to Mr. Gresham, Sec. of State,
June 29, 1894, For. Rel. 1894, 7(C
" You inclose a memorandum of an interview which you had, on
August 7, with the grand vizier and minister for foreign affairs on
the general subject of expatriation of Turkish subjects, from which it
appears that Turkey claims the right to punish, by expulsion or
exclusion from the Ottoman Empire, any of its natives who were
naturalized by another Government without the Sultan's consent,
and that the naturalization of an Ottoman subject, no matter of what
race, is regarded as an offense in itself for which the Porte claims
the right to punish him.
704 NATIONALITY. [§ 468.
" This Government, while abundantly showin<2; its disposition to
respect the sovereign rights of Turkey in regard to the exclusion or
expulsion of objectional)le aliens, as aliens, has repeatedly made its
position known touching any possible claim of Turkey to punish its
former subjects on tlw ground of their having embraced American
citizenship under the due operation of our laws. Such a pretension
will not be acquiesced in, and you will earnestly contest it should it
l)e seriously put forward."
Mr. Greslmm, Sec. of State, to Mr. Terrell, min. to Turkey, Axir. JiO, 1894,
Foi\ Kel. 1894, 7;i8. The inenioranduin referred to was as follows:
" In an interview with the {?rand vizier on the 7th instant he claimed
for Turkey the right to i)iuiish. by expulsion or exclusion from the
Ottoman Empire, any of its natives who, after l»eing naturaliy.ed by
another Government without the Sultan's consent, returned or at-
tempted to return, lie rwognized the verbal agreement formerly
made with me, which limits his powers over such parties to exiuil-
sion or exclusion, but claimed the right to intlict this punishment
for the ofifense of being naturalized without the consent of the Sul-
tan, lie stated that (Jreeks naturalized without such consent, iuul
returning would be treated with more indulgence than native Arme-
nians thus naturalized, so long as that race of men abstained from
sedition." (Id. 7.'{7. )
Mr. Terrell, in another memorandum, relating to an interview on the same
day with Said Pasha, minister of foreign affairs, reported the latter to
have said : " It is impossible for us ever to agree that an Otto-
man subject can transfer his allegiance unless the Sultan permits
it, and it is also impossible that we can ever agree to your con-
struction of Article IV. Once a clerk of our (Jovernment embezzled
.50,000 piasters. We arrested him. ignorant that your country had
naturalized him. Your consul claimed the right to try him; we
could not consent, and the thief went unpunished." (Id. TM>, IIM.)
For the refusal to present a claim of Krikor Manassian for .$"J."»,(MK) for
his expulsion, see Mr. Hill, Assist. Sec. of State, to Mr. Bell, Dec.
7, 1898, 233 MS. Dom. Let. 102.
But where it was alleged that when a penson was expelled his baggage,
money, and other effects were taken from him, it was stated that
if the facts were found to be as stated a demand would be made
for the return of the property. (Mr. Adee, Act. Sec. of State, to
Mr. Egglestoil, Oct. 20, 1900, 248 MS. Dom. Let. 4.54.)
" The published correspondence in the volumes of the Foreign de-
lations for the past two years, together with the statements made by
the President in recent annual messages, show that the Turkish Gov-
ernment claims the right to exclude from the Ottoman territories, or
to deport in case they be found therein, naturalized citizens of the
United States of Armenian birth who have become such naturalized
citizens without imperial consent since the year 1800. The right is
claimed in exercise of a prerogative of sovereignty as an executive
measure in regard to aliens whose presence in the Emi)ire may be
deemed prejudicial to the public interest. Its enforcement in regard
§ 4C33.] EXPATRIATION : LAW OF TURKEY. 705
to such persons has not been opposed, nor has remonstrance been
made save in the case of arrest or punitive proceedings against the
parties on the ground of their having become citizens of the United
States without imperial permission. United States passports held
by persons so situated are recognized by the Turkish authorities as
evidence of the fact of naturalization and citizenship, but the recog-
nition so accorded does not prejudice the exercise of the sovereign
right of exclusion or expulsion for the causes stated."
Report of Mr, Olney, Sec. of State, to the President, .Tan. 22, 1896, S.
Doc. 83, 54 Cong. 1 sess. ; For. Kel. 1805, II. 1471.
Mr. Terrell, minister to Turlvey, to Mr. Olney, Secretary of State, August
5, 189(J, reported upon the imprisonment at Aleppo of certain natural-
ized citizens of the United States whose release he had demanded.
Referring to an interview which he had had on the subject with the
Turkish Government, he said : " The interview resulted in an assur-
ance that the matter will be brought at once, without the usual delay,
to the attention of the Sultan, and my demand for compliance with
the surrender of the men in accordance with the modus vivendi
agreed upon by him personally with me. That modus vivendi limits
the right to expel midesirable persons to those who have been natural-
ized since 18(59 without tlie Sultan's consent and prohibits unneces-
saiy imprisonment." (For. Rel. 1890, 914.)
It appears that some or all of the persons imi)risone<l were charged with
participation in revolt, and that the Turkish authorities thought that
their simple expulsion would not answer the requirements of the
situation. (For. Rel. 189G, 915.)
In a subsequent despatch, of August 19, 1890, Mr. Terrell said : " The
Sultan and Porte, under three successive administrations, have rec-
ognized our modus vivendi, on making which the Sultan grasped my
hand over two years ago. Under it, Mooradian, Krikor Arakelian,
and Melcoun Guedjian (besides others) were surrendered to me."
(For. Rel. 1890, 918.)
September 2.3, 1890, Mr. Terrell reported that the men imprisoned were
arrested in armed resistance to the Government, and that they sur-
rendered on the promise that they would be sent out of the country.
Their situation remained inicbanged. and " in the present condition
of unrest and susj^)icion but little can be hoped for beyond saving
their lives." (For. Rel. 1890, 922.)
Orders were sul)sequently given by the grand vizier to alleviate the con-
dition of threeof the persons who were sick.
December 20, 1890, Mr. Terrell sent to Mr. Olney the following telegram:
"At my demand Dii'adourian, convicted at Trebizond of sedition, has
been surrendered to me under orders of expulsion. The release and
expulsion of the nine revolutionists '» prison at Aleppo jtromised me
by the grand vizier. Such people, unless heli»ed to reach Christian
l)orts. nuist return to i)rison. T?ible ll()us«> ])eoi)le refuse to advan<"e
relief funds from America to su<h p(H)ple in distress wlio have i>e-
come American citizens. I will, as heretofore. |tay their shij* passage,
but I hope in future the Government will aid me." (For. Rel. ISJKj,
924.)
H. Doc. 551— vol 3 45
706 NATIONALITY. [§ 463.
" In consequence of recent events in Constantinople, certain mem-
bers of the Armenian community, fathers of families or bachelors,
artisans, merchants, or others, continue to emigrate. Then individ-
uals of no certain occupation find their way somehow into the various
vilayets of the Empire.
" Now, the Armenian agitators attribute this emigration to an
alleged want of confidence and nonoxisting security in the capital.
They invent and publish in this connection all sorts of lies and incor-
rect statements.
" Since the foundation of the Ottoman Empire, need it be said, the
Imperial Government has never ceased pursuing a just line of con-
duct, the object being to safeguard the lives, jDroperty, and -honor of
its loyal subjects. The Imperial Government is in a position, under
the protecting scepter of His Imperial Majesty the Sultan, to pre-
vent all cause of anxiety or fear which might induce further emi-
gration. Thus, all who desire to leave the country must sign a docu-
ment and also have a solvable guaranty, confirmed by the patriar-
chate, that they will not return to Turkey. This declaration must
be accompanied by the likeness of the emigrant, and it will only be
after fulfilling such formalities that emigration will be authorized.
The passports delivered to these emigrants will state that such per-
sons will not be allowed to set foot again on Ottoman territory. The
explanation in question, as well as a declaration that the emigrants
have lost Ottoman nationality, will be duly inscribed in the registers
of the commission ad hoc, in the archives of the competent depart-
ment, as well as at the chancellery of the Armenian patriarchate. A
delay of a month and a half, and in cases of plausible hindrance,
two months' delay, commencing from to-day, will be granted to those
who have gone abroad without authorization from the Imperial Gov-
ernment to return to their homes. In the event of their design to
stay where they are, they must make a declaration to this effect in
ihe Turkish embassies or legations abroad. Emigrants of this cat-
egory will, nevertheless, lose their nationality as Ottoman subjects,
unless they return to Turkey within the above-named period.
" Ottoman Armenian subjects who have emigrated under false
names and yet by diverse means have returned to Turkey with for-
eign passports will not be recognized as foreign subjects, nor will
they be allowed to live in any part of the Empire.
"Armenians who have emigrated during the past twenty years,
and especially members of the committee of agitators, will not benefit
from the present arrangement. Consequenth^ they will not be per-
mitted to return here. Every agitator who returns to Turkey will
be arrested and brought before the ordinary tribunals.
"As regards Armenians of foreign nationality, who in great num-
bers are among the agitators as organizers of disturbance, the Gov-
§ 464.] EXPATRIATION : LAW OP TURKEY. 7uV
eminent and the police find it difficult to distinguish between the one
and the other. In consequence such foreign Armenians will not be
allowed to assume Ottoman nationality, in accordance with the law
which authorizes the admission of other foreigners to become Otto-
man subjects."
Imperial Irade of the Turkish Government, Oct. 1), 1890, communicated
to the Department of State hy Mr. Terrell, American minister at
Constantinople, Oct. 10, 1890, For. Ilel. 1890, 937.
"A decree of the Turliish Government of October 9, 1890, prohibits from
hereafter residing in Turlvey any Armenian who lias emigrated in
the last twenty years." (Mr. Hill, Assist. Sec. of State, to Mr.
Momiroff, Feb. 1, 1899, 234 MS. Dom. Let. 347.)
(f) UNRATIFIED TREATY OF 1874.
§ 464.
A naturalization treaty between the United States and Turkey was
signed at Constantinople, Aug. 11, 1874,
In regard to the renunciation of acquired citizenship, it followed
(Art. II.) the provisions usually found in the treaties of the United
States, except that it provided that the intention not to return to the
country of adoption "shall" (instead of "may") be considered as
(established by a two years' residence in the country of origin. The
Senate of the United States, however, amended the treaty by sub-
stituting the usual form. The ratifications of the treaty as thus
amended were exchanged at Constantinoi)le, April 22, 1875, but with
an explanation bythe Ottoman Government, which in effect restored
the original meaning. The Government of the United States in
consequence declined to consider the exchange as effective, and refused
to proclaim the treaty.
The situation remained practically unchanged till January 16,
1880, when Mr. Straus, then minister of the United States at Constan-
tinople, reported that he had obtained the SuUan's ii-ade accepting
th;.! treaty as amended, without any qualification, and annulling all
former Turki:-h interj)ietations, the treaty to take effect on its proc-
lanuition by the President. In view, however, of the lai)se of fourteen
years since the Senate's approval of the treaty, the President decided
again to take the advice of that body. He accordingly resubmitted
thc^ treaty, Feb. 27, 1889; and by a resolution of February 28, 1881),
the Senate advised and consented to the exdunige of ratifications
"only upon the distinct understanding to be had between the two
(iovennnents that Article II. of the convention, as amended by the
Senate, shall not be construed to ai)ply to persons ah-eady natural-
ised in either country."
Tn a note to the Turkish minister at Washington, of Jamuirv 'U,
1891, Mr. Blaine, as Secretary of State, stated that the resolution
708 NATIONALITY. [§ 465.
of the Senate was understood to mean that the provisions of the arti-
cle in question ^ shall not apply to citizens or subjects of either coun-
try naturalized prior to the date of the exchange of ratifications, but
that the effect of the return of such persons to their native country
'shall be determined according to the rules that existed prior to the
exchange of tlie ratifications.''
The ratifications remained unexchanged.
Mr. Oluey, Sec. of Stiite, to Mr. Terrell, niin. to Turkey, Oct. 1.5, 189<],
For. Ilol. ISOC, {«.*{.
See also Mjivroyenl Bey, Turkish luiii.. to Mr. Olney, Soc. of State,
Oct. 2, 1896; Mr. Olney, Sec-, of State, to Mavroyeui Bey, Turkish
uiin., Oct. 15, 189(5: For. Rel. 189(5. 929. 9:i2.
See, further, as to this treaty, Mr. Bayard, See. of State, to Mr. Cox,
min. to Turkey, Nov. 28, 1885, For. Kel. 188.'), 885.
Mr. Bayard to Mr. Cox, March 4, 188G, contains a long historical review
of the naturalization question with Tiu'key, and discusses various
, forms of stipulation touching the effect of return to the country of
origin. (MS. Inst. Turkey, IV. .392.)
President Cleveland, in his annual message of Dec. G, 1886, said that he
trusted that he might soon be able to announce a favoral)le settlement
of the differences as to the interpretation of the treaty signed in 1874.
Sept. 4, 1886, Mr. Cox transmitted to Said Pasha a declaration which was
designed to I'emove the difficulty. Said Pasha, Sept. 18, 1886, ex-
pressed his satisfaction and the readiness of his Government to ratify
and pi-oclaim the treaty on the basis of Mr. Cox's declaration. (Mr.
Cox, min. to Turkey, to INIr. Bayard, Sec. of State, No. 236, Sept. 10,
1886 ; Mr. King, charge, to Mr. Bayard, No. 243, Sept. 21, 1886 : 46
MS. Desp. Turkey.)
The Government of the United States declined to approve the declara-
tion, on the ground that it contained ambiguities and raised impli-
cations which rendered it inexpedient and inadmissible as the basis
of ratification. (Mr. Bayard, Sec. of State, to Mr. Straus, min. to
Turkey, No. 27, June 24, 1887, MS. Inst. Turkey, IV. 586.)
See, also, Mr. Straus to JNIr. Bayanl, No. 17, Aug. 2, 1887, 47 MS. Desp.
Turkey, Mr. Bayard to Mr. Straus, No. 40, Sept. 1, 1887, MS. Inst.
Turkey, IV. 607.
As to the resolution of the Senate of Feb. 28, 1889, and the subsequent
failure to ratify the treaty, see Mr. Blaine, Sec. of State, to Mr.
Hirsch, Dec. 1, 1890, MS. Inst. Turkey, V. 1(56 ; same to same. No. 138,
Dec. 9, 1890, id. 169; Mr. Wharton, Act. Sec. of State, to Mr. Ilirsch,
No. 179, March 27, 1891, id. 234; Mr. Gresham, Sec. of State, to
Mavroyeni Bey, Turkish min., March 27, 1894, For. Rel. 1894, 780;
Mr. (Jreslmm. Sec. of State, to Mr. Lament, Dec. 22, 1894, 2(H) MS.
Dom. Let. 70.3 ; Mr. Uhl, Act. Sec. of State, to Mr. Field, March 9,
1895, 201 MS. Dom. Let. 120.
(18) VENEZUELA.
§ 405.
"Your dispatch No. 45, of the HUh ultimo, upon the subject of
Miguel Felipe and Bartholome Antich, natives of Venezuela, but
naturalized in this country, has been received. The course taken by
§ 465.J EXPATRIATION : VENEZUELAN LAW. 709
you ill regard to the matter is approved. The Veiieziiehiii minister
for foreign affairs, however, seems to have mistaken the meaning
of the chiiise of the constitution of that republic to which he refers
as jusifying their claim to jurisdiction over those persons. That
clause merely affirms a truism contained in many other constitutions,
and founded upon public law, that all persons born in a country are
to be regarded as citizens thereof. It does not deny the right of ex-
patriation, as the minister appears to suppose. Few governments
now make such a denial, and the Department is not aware of any law
of Venezuela which prohibits emigration from that country and
naturalization elsewhere. If, however, as appears to be the case,
the persons referred to proi^ose to return to the United States, that
step, if carried into effect, would relieve us from further contro
versy in regard to their particular case."
Mr. Fish, Sec. of State, to Mr. Pile, inln. to Yeiiezuelii, .Time 22, 1872, For.
Rel. 1872, 716.
" Article 5 [of the constitution of Venezuela, adopted by the
National Constituent xlssembly June 12, 181)3, and promulgated July
5, 1893, superseding the constitution of April IG, 1891, which was the
same as that of April 27, 1881, except as to the power of amendment]
declares the law of citizenship. Division (a), section 1, is the same
as in the former constitution, and adopts the rule of ji/s soli in its
entirety, declaring every person born in the territory of Venezuela a
Venezuelan, whatever may be the nationality of his parents. Divi-
sion (a), section 2, and division (h), section 1, following the former
constitution, make children born abroad of a Venezuelan father or
mother Venezuelan citizens, provided they become domiciled in
Venezuela and declare their desire to be such; but the two sections
distinguish between children so born of a native Venezuelan parent
and of a naturalized Venezuelan parent, declaring the former native
and the latter naturalized citizens. Division (a), section 3, simply
declares the principle of international law that a child born abroad
of a Venezuelan citizen in the diplomatic service is a native citizen.
"Division (L), sections 2 and 3, provide for the naturalization of
foreigners, and like the last constitution distuiguish between the
forms required for natives of any of the Spanish-American republics
or of the Spanish Antilles and other foreigners. The last constitu-
tion (article 0) provided that 'those who fix their doniicil and ac-
quire nationality in a foreign country do not lose the chaiiU'ter of
Venezuelans.' This declaration against the right of expatriation has
been omitted from the new constitution."
Ml-. Partridge, iiiin. to Venezuela, to Mr. (Jreshain. Sec. of State. July 12,
ISO.'i. For. Rel. IS'.):?, 7^1.
The translation of art. 5 of the constitution, as enclosed by Mr. I'artridge,
reads :
710 NATIONALITY. [§ 4C5.
"Abt. 5. Voiu'ziR'liius are such by birth or by iinturaliKatioiL
"(a) ViMioziU'hins Ity birtli are —
,"(1) All persons that have boon or may be born on Venezuelan soil, what-
ever may be the nationality of their ])arents.
"(2) The eliildren of a Venezuelan father antl mother by birth who may
be born on foreign soil, providwl tliat they come to the country t.>
take up their domicile in it and dtMilare before eompeteut authority
their desire to be such.
"(3) Legitimate children tliat may be born on foreign soil or at sea of a
Venezuelan father temi>orarily residing or traveling in the exercise
of a diplomatic mission or attached to a legation of tlie Hepubllc.
"(b) Venezuelans by naturalization are —
"(1) The children of a Venezuelan father or mother by naturalization,
born outside of the territory of the Kepublic, if they should come to
take up their domicile In the country and declare their desire to be
Venezuelans.
**(2) Those born or that may be born in the Spani.sh-American republics
or in the Spanish Antilles, provided that they may have fixed their
residence in the territory of the Republic and manifested their desire
to be Venezuelans,
"(3) Foreigners who have obtained a letter of naturalization or citizen-
ship conformably to the law."
" The provision that all persons born on Venezuelan soil are citi-
zens, whatever the nationality of their parents, is foinid in many
Spanish- American countries, being derived from the Spanish consti-
tution of 1812. {See Foreign Relations, 1880, p. 113.) It is in most
cases either expressly or tacitly qualified by the necessary condition
of being or remaining within the jurisdiction of the country of birth.
The Venezuelan provision may be assumed to mean that children so
born of alien j^arents possess a dual nationality, and that while in
Venezuela their Venezuelan nationality prevails. In. this light it is
merely an enimciation of an obvious conflict of law^s."
Mr. Adee, Act. Sec. of State, to Mr. Partridge, min. to Venezuela, July
2G, 1893, For. Kel. 1893, 7.34.
The Coustitution of Venezuela of April 27, 1904, Title III., Section 1, pro-
vides :
"Aet. 8. Venezuelans are such by birth or naturalization.
"(a) Venezuelans by birth are:
" 1. All persons born on Venezuelan soil, and
*' 2. The children of Venezuelan fathers, whatever the place of their birth
may be.
"(b) Venezuelans by natiiralization are:
"1. AH persons born in the Spanish-American Republics, provided that
they have acquired domicil in the Republic and shown their desire to
become Venezuelans.
"2. Foreigners who have obtained naturalization papers according to the
laws.
"3. Foreigners who become Venezuelans by virtue of special laws.
"4. Foreign women married to Venezuelans, as long as the matrimonial
bond is in existence; but after the dissolution of the marriage tlio
Venezuelan nationality shall l>e retained by the foreign wife, unless
§4CG.] MODES OP EXPATRIATION. 711
she makes, within one year after the said dissolution, the declaration
to which the following article refers." (Rodriguez, American Con-
stitutions, I. 190-200.)
1 wish here to express my special appreciation of the excellent and useful
worlv just cited, heing a compilation of the iK)litlcal constitutions of
the independent nations of America, with notes and appendices, by
Dr. Jose Ignacio Rodriguez, the learned chief translator and libra-
rian of the International Bureau of the American Republics.
XIII. MODES OF EXPATRIATION.
1. Acts Held to Effect Expatriation.
§ 466.
In some of the opinions given under this head, it is difficult to es-
cape the conchision that the word " expatriation " may have been
employed in the sense of forfeiture of the right to national protec-
tion, instead of in the full sense of change of home and allegia-nce.
Much confusion has resulted from the failure to keep this distinction
in mind.
There is no mode of renimciation by a citizen of his citizenship
prescribed. But if he emigrates, carries his family and effects along
with him, manifests a plain intention not to return, takes up his
permanent residence abroad, and assumes the obligation of a subject
to a foreign government, this would imply a dissolution of his pre-
vious relations with the United States.
Black, At. Gen., 1857, 0 Op. G2.
Former citizens of the United States who have, by naturalization,
become British subjects, are, while domiciled in the Ignited States,
entitled by treaty to all the rights of native-born British subjects.
Newcomb v. Newcomb (Ky. 1900), 57 S. W. 2.
If a citizen of the United States emigrates to a foreign country, and
there, in the mode jirovided by its laws, renovnices his American citi-
zenship with a bona fide intent of becoming a citizen of such country,
iiis course should be regarded by our Government as an act of expa-
triation.
Williams, At. Gen. 1<S78, 14 Op. 20.5.
Where a citizen of the United States at different times obtained
Austrian passports, traveled as an Austrian subject, and resided many
years ir the country, he will l)e considered an Austrian, on tlie ground
that consent, together Avith the laws of tliat country, has effected a
change in his nationality.
Williams, At. Gen. 1872, U Op. 154.
7l2 Nationality. C§46().
Naturalization isjhe highest, but not the only, evidence of expatria-
tion. Such acts, in addition to the selection and enjoyment of a for-
eign domicil, as amount to a renunciation of United States citizen-
ship and a willingness to submit to or adopt the obligations of a citi-
zen of the country of domicil, such as accepting public employment,
engaging in military services, &c., may be treated by this Government
as effecting expatriation.
Williams, At. Gen. 1873, 14 Op. 295.
"A continuous residence under a foreign jurisdiction, of more than
the lifetime of a generation, without some acts of allegiance, and the
discharge of some of the duties of a citizen, would seem to raise a
presumption of renunciation of citizenship."
Mr. Fish, Sec. of State, to Mr. Niles, Oct. 30, 1871, 91 MS. Dom. Let. 211.
As Congress has not defined, by the statute of 1868 or otherwise,
what may constitute expatriation, the Department of State is " forced
to look elsewhere for an enumeration of the acts " which may have
that effect. Chief Justice Marshall, speaking for the Supreme Court,
said that the situation of an American citizen " is completely changed
where, by his own act, he has made himself the subject of a foreign
power." (2 Cranch, 119.) This opinion is recognized as furnishing,
as far as it goes, a rule of action for the Department ; but there are
other cases " in which the voluntary expatriation is to be inferred,
not from an open act of renunciation, but from other circumstances,
as, for instance, a residence in a foreign land so constant, and under
such circumstances, that a purpose of a change of allegiance may be
reasonably assumed." " Each case as it arises must be decided on
its merits."
Mr. Fish, Sec. of State, to Mr. Washburne, min. to France, June 28, 1873,
For. Rel. 1873, I. 250, 258.
" Until the year 1868 it was left embarrassed by conflicting opin-
ions of courts and of jurists to determine how far the doctrine of
perpetual allegiance derived from our former colonial relations with
Great Britain was applicable to American citizens. Congress then
wisely swept these doubts away by enacting that ' any declaration,
instruction, opinion, order, or decision of any officer of this Govern-
ment which denies, restricts, impairs, or questions the right of ex-
patriation, is inconsistent with the fundamental principles of this
Government.' But Congress did not indicate in that statute, nor has
it since done so, what acts are deemed to work expatriation. For
my own guidance in determining such questions, I required (under
the provisions of the Constitution) the opinion in writing of the
principal officer in each of the Executive Departments upon certain
questions relating to this subject. The result satisfies me that fur-
^406.] MODES OF EXl:»ATRtATlO]Sr. 7l3
ther legislation has become necessary. I therefore commend the sub-
ject to the careful consideration of Congress, and I transmit herewith
copies of the several opinions of the principal officers of the Execu-
tive Department, together with other ^correspondence and pertinent
information on the same subject.
" The United States, who led the way in the overthrow of the
feudal doctrine of perpetual allegiance, are among the last to indi-
cate how their ow^n citizens ma}^ elect another nationality. The pa-
pers submitted herewith indicate what is necessary to place us on a
par w^ith other leading nations in liberality of legislation on this in-
ternational question. We have already in our treaties assented to
the principles which w-ould need to be eml)odied in laws intended to
accomplish such results. We have agreed that citizens of the United
States may cease to be citizens, and may voluntarily render alle-
giance to other powers. We have agreed that residence in a foreign
land, without intent to return, shall of itself work expatriation. We
have agreed in some instances upon the length of time necessary for
such continued residence to work a i)resuniption of such intent."
President Grant, animal message, Dec. 1, 1873, For. Kel. 1873, I. vii.
" I have again to call the attention of Congress to the unsatisfac-
tory condition of the existing laws wnth reference to expatriation and
the election of nationality. 'Formerly, amid conflicting opinions and
decisions, it was difficult to exactly determine how far the doctrine of
perpetual allegiance was applicable to citizens of the United States.
Congress, by the act of the 2Tth of July, 1SC8, asserted the abstract
right of expatriation as a fundamental principle of this Government.
Notwithstanding such assertion, and the necessity of frequent appli-
cation of the principle, no legislation has been had definiug what acts
or formalities shall work expatriation, or when a citizen shall be
deemed to have renounced or to have lost his citizenship. The im-
portance of such definition is obvious. The r(q)resentatives of the
United States in foreign countries are continually called upon to lend
tlieir aid and the protection of the T jilted States to j)ers()ns concern-
ing the good faith or the reality of whose citizenship there is at least
great question. In some cases the provisions of the treaties furnish
; cue guide; in others, it seems left to the i)ersou claiming the benefits
of citizenship, Avhile living in a foreign country, contributing in no
manner to the performance of the duties of a citizen of the United
States, and without intention at any time to return and undertake,
rhose duties, to use the claims to citizenship of the Tnited States
simply as a shield from the perf'ornuince of the obligations of a citi-
zen elsewhere."
President (Jrant, annual message, Dec. 7. 1874, For. Kel. 1874, x.
714 NATIONALITY. [§466.
'^ The individual right of oxpatriatidii l)('iii<>; admitted, the correla-
tive right of the State to detenniiie vviiat acts aiv to be taken as evi-
dence of such expatriation necessarily follows — it is a necessary and
inevitable corollary."
Mr. Fish, Sec. of Stnto. to Mr. Davis, )uin. to (Jeriiiany, June 28, 1875,
MS. Inst. Germ. XVI. (J7.
William He^ss, a naturalized citizen of the United States, of Aus-
trian birth, wishing to become a subject of Russia, applied to the
American legation at St. Petersburg for the certificate, required by the,
Russian naturalization laws, that his Government had no objection to
his change of allegiance. The legation, finding no precedent for such
a case, prepared a form of certificate and submitted it to the Depart-
ment of State for instructions. The Department replied : " I am
aware of no statute authorizing or making it the duty of a diplomatic
or other officer of the United States to give such a certificate. Mr.
Hess's right to abandon his American citizenship, under the laws of
this country, can not be questioned. This Government holds that
the ' right of expatriation is a natural and inherent right of jiH peo-
ple' (Rev. Stat. U. S., sec. 1999), and it would seem that by calling
the attention of the Imperial Government to that provision Mr. Hess
can accomplish his purpose."
Mr. Gresham, See. of State, to Mr. White, min. to Russia, Oct. 2, 1894,
For. Rel. 1894, 557.
See, to the same effect, Mr. Gresham, Sec. of State, to Mr. Coleman,
charge at Berlin, March 18, 1893, MS. Inst. Germany, XVIII. 672.
" Wliile this Department is not entitled to issue, at their request,
certificates to particular citizens to the effect that it renounces their
allegiance, it has no hesitation in saying that the Government of the
United States recognizes the right of expatriation ; and the Depart-
ment has frequently declared that when a citizen of the United States
becomes naturalized or re-naturalized in a foreign land he is to be
regarded as having lost his rights as a citizen of the United States."
Mr. Bayard, Sec. of State, to Mr. Suzzara- Verdi, January 27, 1887, 162
MS. Dom. Let. 677.
See, to the same effect, Mr. Bayard, Sec. of State, to Count Sponneck,
Danish min., April 10, 1888, For. Rel. 1888, I. 489.
" '\Vhile it is not competent, under existing statutes, for the De-
partment of State to issue at their request certificates to particular
citizens admitting the renunciation of their allegiance, I have no
hesitation in saying that the Government of the United States recog-
nizes the right of expatriation ; and the Department has frequently
declared as a general principle that, when a citizen of the United
States voluntarily becomes naturalized or renaturalized in a foreign
§4C)T.] MODES OF EXPATRIATION; 715
country, he is to be regarded as having lost his rights as an American
citizen. The Department cannot take any action in regard to the
request of Mr. Preisler, beyond making tliis general declaration of the
principles of law recognized by this Government in cases similar to
his."
Mr. Blaine, Sec. of State, to Count Sponnock, .Tune f), 1890, :MS. Xotos to
Denmark, VII. 219.
In the ease of a native American citizen who wi^s admitted to Danish
citizenship dnring his minority, and wlio liad not yet come <jf age, the
foregoing declaration of principles was <inaliHed as follow.s: "As Mr.
Andersen has not yet attained his majority, the Department is not
prepared to admit that proceedings taken on his hehalf in Denmark
during his minority would deprive him of his right, upon reaching
the age of twenty-one years, to elect to hecome an American citizen
by immediately returning to this country to resume his allegiance
here." It appeared that Mr. Andersen had personally i)etitioned
for his discharge from American citizenship. (Mr. Wharton. Act.
Sec. of State, to Count Sponneck, Danish min., Sept. 10, 1800, MS.
Notes to Denmark, YII. 224.)
2. Acts Held not to Effect E.xpatriation.
§ 467.
"Joel Barlow felt himself at home in Paris. In 178S, at the age
of thirty-four, he had first come abroad, and during seventeen excit-
ing years had been rather French than American. In 1702 the
National Convention conferred on him the j^rivileges of French
citizenship — an honor then shared only by Washington and Hamilton
among Americans."
G Adams' History of the Ignited States, 24.~).
July 31, 1840, the Peruvian Government promulgated a decree, in
which it was declared that, by par. 4, Art. VI., of the constitution,
an alien, who resided four years in the Kepublic and man-ied a
Peruvian woman, was ipHo facto naturalized. Parish priests were
therefore directed not to marry an alien to a Peruvian woman, uidess,
if he had lived in Peru four years, lie ])roduce(l from the civil authori-
ties the proper proof that he had already become a Peruvian, or, if
he had lived there less than four years, that he would be ready to be
naturalized at the end of that term. In the case, however, of a
Spanish-American or a Spaniard, it was stated that, in conformity
with paragraphs 5 and (> of the same article. h<> nnist be inscribed as a
naturalized IVruvian, no matter what \\\y> time of liis residence.
Mr. Pickett, the charge d'affaires of the United States at Liuia,
reported that such a const iMU-t ion had not before been given to .Vrt.
VI. of the constitution. A similai- provision, he said, was contained
in the constituticai of 18;U, Avith the difi'erence that the term of resi-
716 NATIONALITY. [§ 4G7.
deuce was two years instead of four, but it was construed to mean
only that an alien residing in Peru two years ant! marrying a Peru-
vian woman became entitled to Peruvian citizenship, if he chose to
become naturalized.
Aug. 1.^, 1840, Mr. Pickett wrote to the minister of foreign affairs,
protesting against the decree. He subsequently received, by a mes-
senger from the foreign office, a copy of a pamphlet, entitled "Answer
to the observations that have been published against the measure ;
of the Government concerning the naturalization of foreigners."
Mr. Pickett replied Sept. 2, 1840, and much correspondence ensued,
without any immediate tangible result.
Feb. 17, 1841, however, Mr. Pickett reported that the Peruvian
Government had so modified its position as to consent that the decree
should not be construed to operate retroactively, and on Nov, 12,
1841, he wrote : " I enclose herewith a decree of the Peruvian Gov-
ernment, suspending the circular order of the 31st of July, 1840,
which prohibited aliens from marrying in Peru, unless they were
first naturalized. The suspension will be equivalent, probably, to a
revocation, for I do not suppose there will be any further attempt
to enforce this measure."
Mr. Pickett, charge d'affaires to Peru, to the Department of State, No. 19,
Aug. 10, 1840; No, 35, Feb. 17, 1841; No. 51, Nov. 12, 1811; 5 and G
MS, Desp, Peru,
Citizens of the United States cannot divest themselves of allegiance
to the Government by residence among Indian tribes, nor even by
becoming members thereof,
Butler, At. Gen., 1834, 2 Op. 693.
A naturalized citizen of the United States of Swiss origin was
advised that he could not divest himself of his American citizenship
by accepting the office of Swiss vice-consul at New York, but must,
in order to accomplish that result, return to Switzerland with the
intention to reside there, or else be naturalized in some third country.
Mr, Peshine Smith, Solicitor of the Department of State, to Mr, Louis
Boerlin, Oct, 12, 1869, 82 MS, Dom, Let, 186,
" It is, however, by no means to be assumed that Congress and the
several legislatures which assented to the fourteenth amendment con-
templated that a temporary withdrawal of the person of the citizen
from subjection to national jurisdiction should forfeit the rights of
citizenship. Such a construction would do violence to common sense,
to the customs of Americans, whb, from the foundation of this Gov-
ernment, have been in the habit of residing in foreign countries, and
engaging in commerce there, retaining their nationality; and to the
467.] modp:s of expatriation.. 717
general jurisprudence of nations which recognizes such a residence as
consistent with the preservation of nationality."
Mr. Fish, Sec. of State, to Mr. Wasbburne, miii. to Franco, June 28, 1873,
For. Rel. 1873, I. 250, 257.
" While expatriation may be, and sometimes is presumed from that
circumstance [continued residence in another country], it is by no
means conclusive of the fact. A citizen of the United States may be
absent from his country for an indefinite period for purjjoses of
education, of business or of pleasure, and so long as he does no act or
assumes no obligations inconsistent with his native or acquired citi-
zenship in this country, he is not held under our laws to have for-
feited any of his rights as a citizen of the United States."
Mr. Evarts, Sec. of State, to Mr. Wbite, miu. to Germany, June (>, 1879,
MS. Inst. Germany, XVI. 469.
" The Department holds that for a native American to put off his
national character he should put on another. Continued residence
of a native American abroad is not expatriation, unless he performs
acts inconsistent with his American nationality and consistent only
with the formal acquirement of another nationality, and the same rule
holds equally good in the case of a naturalized citizen of the United
States who may reside abroad otherwhere than in the country of his
original allegiance. Existing statutes confirm the principle by pro-
viding that citizenship shall flow to the children of American citizens
born abroad, the birthright ceasing only with the grandchildren whose
fathers have never resided in the United States. Foreign residence,
even for two generations, is, therefore, not necessarily e'^'patriation, in
the sense of renouncing original allegiance, nor is it necessarily re-
patriation unless through the conflict of laws of the respective coun-
tries and the conclusion of conventional agreements between them."
Mr. Evarts, Sec. of State, to Mr. Fisb, charge d'affaires to Switzerland,
Oct. 19, 1880, For. Rel. 1880, 900.
"An American citizen may travel or reside in a foreign country
indefinitely for the purposes of education, health, business, or of
pleasure, and continued absence from the United States, not accom-
panied by any act inconsistent with his allegiance to his country, will
not cause a forfeiture of citizenship. If, however, such citizen re-
moves his family and property from the United States, enters into
business and settles permanently in a foreign country, neither ex-
pressing nor manifesting by his acts any intention of returning ])er-
manently to the United States, and if under the latter circumstances
he wishes the j)rotection of this (lovernment against the (Jovcrnuient
or hnvs of the country in which he has residence, it becomes a projier
subject of inquiry whether he has not voluntarily abandoned his right
718 NATIONALITY. [§ ■i<>8-
to such protection.'' Such protection may be denied, " even if he has
not technically forfeited his citizenship."
Mr. Frelinghuyseii, See. of State, to Mr. Lowell, miu. to England, Feb. 27,
1884, For. Rel. 1884, 210, 218.
"As to the mere tenure of office nnder the Samoan government, the
Department is of opinion that such tenure of office, unless it required
the assumption of Samoan citizenship, could not of itself be treated
as an act of expatriation, as there is nothing in the Constitution or
laAvs of the United States that precludes a private citizen of the
United States from rendering official services to foreign governments."
Mr. Rives, A.ssist. Sec. of State, to Mr. Sewall, consfil-general at Apia,
No. 28, Jan. 6, 1888, 123 MS. Inst. Consuls, 532.
A citizen of the United States " may renounce his American citi-
zenship, and should he desire to do so no opposition to the execution
of his wishes would be proper. It is not thought, however, that his
declaration that he should no longer obey any order issuing from
your office, or that he would renounce his citizenship, is sufficient
evidence of an actual renunciation thereof."
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia,
March G, 1888, S. Ex. Doc. 31, 50 Cong. 2 sess. 34.
3. Oaths of Allegiance.
§ 468.
" I have received the evidence transmitted by you to the Depart-
ment, and have read your argument on the subject of the application
of Mr. Sidney Mason for a passport. I regret not to find sufficient
justification in either the facts or the arguments adduced, for a com-
pliance with his request. By the usage of this Government, pro-
tections of the character referred to are granted to citizens of the
United States alone. Evidence having been filed in this showing
that Mr. Mason, whilst residing in Porto Rico, had taken the oath
of allegiance to H. C. Majesty, and at the same time renounced his
citizenship in this country, that rule of the Department which
gives a preference to American citizens over aliens in its appoint-
ments to consulates became applicable to him, and his commission as
United States consul at St. Johns was according!}^ withdrawn, on
the express ground of his having become a Spanish subject. The
recognition of Mr. Mason now as an American citizen, by granting
him a passport as such, would be in direct conflict with the decision
of the Department in respect to him. Satisfied with the propriety
of that decision, I can but reaffirm it by refusing Mr. Mason's pass-
port. I will not treat alternately, as an alien and a citizen, a person
§ 4G8.] MODES OF EXPATRIATION. 719
who may appear in the one or the other character as it may suit his
convenience. I wish yon, however, to understand distinctly that I
give no opinion on the several' very grave questions touched in your
argument as to the right of Mr. Mason before the tribunals of the
United States, in the situation in which he has been pleased to place
himself. I decide on the application merely as it regards the duties
of the Department of State."
Mr. Forsyth, Sec. of State, to Mr. Emerson, Jan. 23, 1839, 30 MS. Doni.
Let 138.
" Without deciding the question, whether an American citizen by
taking out a letter of domiciliation in Cuba has forfeited his rights
of citizenship, I think that, whilst he remains in the island, enjoying
the privileges which such a letter confers, this Government is not
under any obligation to protect him as an American citizen. This
would seem to be clear, because in order to obtain such letter he must
have promised under oath fidelity to her Catholic Majesty, and to the
laws, ' renouncing all privilege, right and protection that he might
claim as a foreigner, promising not to maintain any dependence, re-
lation or subjection to the country of his birth,' &c."
Mr. Buchanan, Sec. of State, to Mr. Campbell, consul at Havana, .July
20, 1848, 10 MS. Desp. to Consuls, 473.
It will be observed that Mr. Buchanan draws, in this instruction, a clear
distinction between the temporary renunciation or loss of the right
to protective intervention, and expatriation, in the sense of loss of
citizenship.
See, however, Moore, Int. Arbitrations, III. 2701-2703 ; and supra, § 4(57.
In 1851, soon after the breaking up of the Lopez expedition, Mr.
John S. Thrasher, a native citizen of t4ie United States, who had
lived for a number of years in Cuba, engaged in business souietinies
as a merchant and sometimes as an editor, was arrested and con-
demned to eight years' imprisonment at hard labor on a charge of
treason or conspiracy against the Crown of Spain, and was sent to
Spain in execution of his sentence. In reply to a resolution of tlie
House of Representatives requesting information concerning the
case, the President transmitted a report of Mr. Webster, Secretary of
State, bearing date December 28, 1851. In this report it was hi id
down that a citizen of the United States, residing in a foreign coun-
try, although he was bound to submit to the laws, was entitled to the
interposition of his (Jovernnient if he should be unjustly treat(>(l, but
his situation was declared to be " comi^letely changed, when. l)v his
own act, he has made himself the subject of a foreign power." I'liu
question Avhether he had not done this was, said Mr. Webster, often a
matter of presumption, but the necessity of any presinnption in Mr.
Thrasher's case was " entirely removed, if, in fact, he actually took out
720 NATIONALITY. [§408.
letters of domiciliation, in order to enable him to transact business
such as a Spanish subject or a domiciliated foreigner can alone trans-
act, and actually swore allegiance to the Spanish Crown." In this
relation Mr. Webster referred to the royal decree of January 17,
1815, to the royal colonization decree of October 21, 1817, and to a
hando real issued by the governor-general of Cuba March 0, 1818,
in regard to the domiciliation of aliens in Cuba. The question
whether Mr. Thrasher had so domiciliated himself was Hot deter-
mined, but it was intimated that he had done so, • .
Report of Mr. Webster, Sec. of State, to the I'resident, Dec. 23, 1851, 6
Webster's Works, 521.
See, also, Mr. Webster, See. of State, to Mr. Barriuger, luin. to Spain,
Dec. 13, 1851, G Webster's Works, 518.
The report of Mr. Webster above cited is constantly referred to
as expressing his views and those of the Government of the United
States on the eifect of domiciliation in Cuba as an act of expatria-
tion. This circumstance is due to the fact that those who have dealt
with the subject have usually confined themselves to the [)ublic
record and have failed to examine the subsequent correspondence in
the case. This correspondence was examined by J. Ilubley Asliton,
esq., as agent of the United States before the Mexican Claims Com-
mission under the treaty of July 4, 18G8, with the result, as shown
in one of Mr. Ash ton's able and learned arguments, that the report
of December 23, 1851, did not represent Mr. Webster's final views
on the question. On a further examination of the subject it was
shown that the royal colonization decree of October 21, 1817, by
which provision was made for domiciliating foreigners, was issued
at the request of the civil aiithorities at Havana for the purpose of
increasing the white population of Cuba by Spaniards from the Pen-
insula and Canary Islands and by emigrants from friendly European
nations. Many privileges were granted to such emigrants, including
exemption from taxation for fifteen years, and free exportation of
the property which they brought with them if they returned to their
native country at any time during the first five years; and they were,
as " strangers," permitted to Jeave in the case of war with their
native country. The domiciliatory letter, Avhich the foreigner took
out, according to Spanish law, " simply authorized a foreign subject
to reside in the island more than three months, and to employ him-
self in commerce or any other useful industry; " and it seemed, said-
Mr. Webster, that any conditions or restrictions introduct^d into the
domiciliatory oath inconsistent with the letter and spirit of the royal
proclamation, or with the provisions of Spanish law, must neces-
sarily be null and void. It appeared, besides, to be the general
nnderstanding of the Spanish authorities, as Avell as of the foreigners
who took out domiciliatory letters, that they did not by so doing for-
§468.] MODES OF EXPATRIATION. 721
feit their rights of citizenship in their respective countries or assume
any obligations inconsistent therewith. And throughout the whole
Spanish law there was observed a wide distinction between domi-
ciliation and naturalization. " Thus it appears," said Mr. Webster
"that notwithstanding the terms of the oath of domiciliation are
so rigid, yet, taken in connection with the jjrovisions of Lnv above
cited, the American residents in Cuba have never, in point of fact
regarded themselves as having changed their allegiance by taking
out letters of domiciliation. They appear to have considered these
letters as mere formal requisites to an undisturbed temporary resi-
dence for commercial or other business j^urposes. In point of fact
it is believed that these papers are usually procured by purchase, that
no oath is taken, and no act done on the part of the American resi-
dent, except the payment of a small fee.. Change of dormcil is
matter of intention, and, notwithstanding residence in fact, there
must be the animus jnanendi Change of allegiance, which is mani-
fested by the voluntary action, and usually by the oath of the party
himself, ought always to be accom})lishod by proceedings which are
understood on all sides to have that effect."
Mr. Webster, Sec. of .State, to Mr. Sharkey, consul at Havaua, July 5,
1852, Moore, Int. Arbitrations, III. 2701-2703.
In the latter part of 18G1, a native citizen of the United States,
then residing with his family in England, and being tlie owner of
several vessels then in English ports, became api)reluMisive of war
between the United States and Great Britain. "With a view to pro-
tect his property, he went to the city of ITauiburg for the purj)oso of
placing his vessels under the Hamburg flag, and in order to do this
he took, in the license office of that city, the citizen's oatli to be '" true
and faithful to the Free and Ilanseatic Town of TIauiburg." The
oath, however, contained no renunciation of native allegiance. The
affiant had no intention of remaining permanently in Hamburg, and
he was in the city, unaccompanied by any of his family, only about
three wrecks. On these facts, j\Ir. B. K. Curtis, foruierly a justice of
the Supreme Court of the United States, gave an opinion to the effect
that the person in question did not cease to be an Amei-ican citizen,
because (1) change of allegiance, as held in HIight's Lessee r.
Rochester, 7 AAHieat. 535, and admitted in the several opinions of the
heads of Departments to the President in response to his letter of
Aug. G, 1873, can not be effected without an actual change of domicil :
(2) the act of taking the oath at Hamburg did not amount to a
renunciation of native allegiance, or to a declaration of a determina-
tion to remain permanently in Hamburg; (3) the naturalization
treaty of Feb. 22, 18(')8, betweeii the United States and the North
H. Doc. 551— vol 3 10
722 NATIONALITY. [§ 4G8.
(ierman Confederation, which embraced the city of Hamburg, pre-
scrilxul the conditions of change of allegiance, which had not been
complied with.
Life and Writings of U. U. Curtis, I. 438-440.
Certain gentlemen of Boston having addressed the Department of
State in behalf of Mr. C. W. Adams, in respect of a claim against the
United States, Mr. Seward stated that they had " unconsciously, no
doubt, supposed that he is a citizen of the United States. In this they
are mistaken, for this Department not only has authentic proof that
he was naturalized as a citizen of Hamburg on the 17th of January,
18G2, but that the Hanseatic charge d'affaires has hhnself officially
l^resentcd to this Department the complaint of Mr. Adams and has
asked reparation therefor as one of his countrymen. In any proceed-
ing on that subject, he must conse(iuently be regarded as an alien."
Mr. Seward, Sec. of State, to Mr. Wilson, M. C, Sept. 9, 18G5, 70 MS.
Dom. Let. 330.
The Rev. Albert Whiting, a native citizen of the United States,
in order to qualify himself as the pastor of a Presbyterian church in
Canada, took an oath of allegiance to the British Crown. Subse-
quently, he gave up the charge, intending to go to China as a mis-
sionary of the Presbyterian church of the United States. With this
in view, he inquired whether he would be entitled to protection as an
American citizen. It appeared that the oath that he took in Canada
contained no renunciation of his American citizenship, and that it
did not have the effect of naturalizing him as a British subject. On
these facts, the Department of State said: " If during your residence
in Canada you performed no other acts incident to the character of a
British subject and took no steps with the intention of renouncing
your national character of a citizen of the United States, the oath
which you took and subscribed on the 30th of July, 1872, does not in
the opinion of this Department work a change of your nationality
nor does it affect your right to protection as an American citizen."
Mr. Fish, Sec. of State, to Mr. Whiting, March G, 1873, 98 MS. Doni. Let.
74 ; same to same, Feb. 0, 1873, 97 id. 427.
" Under a regulation of Great Britain operative in Canada, Ameri-
cans taking public emplo3^ment in the Dominion, such as teaching in
the public schools, are required to take a qualified oath of allegiance
to Her Britannic Majesty binding only so long as such employment
continues. This oath is not held b}^ this Government nor is it
claimed by that of Great Britain to interfere in any way with their
allegiance to or citizenshij) in the United States."
Mr. John Davis, Act. Sec. of State, to Mr. Barnett, consul at Paramaribo,
Aug. 20, 1884, 111 MS. Inst. Consuls, 418.
§468.] MODES OF EXPATRIATION. 723
111 September, 1883, the United States consul at St. Thomas,
I). AV. I., brought to the attention of the Department of State the
fact that the Government of Denmark iv(iuired, as a condition i)rece-
deiit to a foreigner's entering into business in that colony, that he
should take an oath of allegiance to the King of Denmark, as foHows:
"I do pi'onii.se and swear to bear true allej,'i!Uice to His Majesty Christian
the IXth, King of Denmark, as my lawful hereditary sovereign and lord, and to
ills hereditary suecessors on the throne.
" I do also promise to conform myself to the laws and ordinances of this
island and to obey those who are invested here with His Majesty's authority;
and lastly, to act and conduct myself in such a manner as befits a true and
loyal Danish burgher and subject. So help me God and his holy word.
It was not known that this oath had been taken by any American
citizens in the islands, but the Government of the United States
" remonstrated against the unreasonableness and impropriety of the
Danish requirement, and, while no assurances have been given by
Denmark that the same Avould be dispensed with, there is reason to
believe that the requirement is not now being enforced."
Mr. J. Davis, Act. Sec. of State, to Mr. Barnett, consul at I'aramaribo,
Aug. 20, 1884, 111 MS. Inst. Consuls, 41.3.
" I have to acknowledge the receipt of your despatch. No, 80, of the
15th of September last, stating that you had been asked by some of
the agents of American vessels at Honolulu to appoint and adminis-
ter the required oath to persons as masters of said vessels, who have
once been American citizens, but who have taken an oath of allegiance
to the King of Hawaii. You inquire whether, in view of the fact
that they have taken such oath of allegiance, they are deemed to have
renounced their allegiance to the Government of the United States.
" In reply I have to state that this subject, having received the
careful consideration of the law officer of the Department, the Dei)art-
ment is of opinion that the American citizens referred to assumed
a qualified allegiance only to the King of Hawaii, that it continued
only so long as they continued residents of that kingdom, and that it
was not inconsistent with their obligations as citizens of the United
States, and that such persons are competent to be masters of .Vineri-
can vessels and to assume the obligations attaching to them in that
capacity as citizens of tlie United States."
Mr. Hunter, Second Assist. Sec. of State, to Mr. Scott, consul at Honolulu.
Nov. 1, 187(>, 84 MS. Desp. to Consuls. 04.
" Your dispatch of the 5th ultimo relative to the case of Mr. Peter
Cushman Jones, an American citizen resident in Honolulu, has I)een
received.
'" Mr. Jones, as it appears from his letter to you of the ^^th of
May, a copy of which you inclose, was boi-n in Boston. Mass.. in 1S3~.
and in 1857 took up his residence in the Hawaiian Kingdom, enter-
724 NATIONALITY. [§ 408.
iiig into mercantile i)ur.suits there as a doniiciled American citizen.
Becoming the owner of a merchant vessel there under the Hawaiian
Hag, it became necessary for him, in order to tlie maintenance of his
rights in that Kingdom, to take an oath of allegiance to the sovereign
of the islands. The form of the oath set out in Mr. Jones's letter,
thus:
The luitlersiRiied, a luitive of the United States of Anieriea, heiiig duly sworn,
upon his oiitlj declares that he will support the constitution and laws of the
Hawaiian Islands and hear true allegiance to His Majesty Kainehameha IV.
" Your inquiry is as to what etfect this proceeding may have upon
the status of Mr. Jones's American citizenship.
" In becoming a citizen of the United States the law requires that
an alien shall not only swear to support the Constitution and laws of
this country, but also to renounce all other allegiance, and especially
ihat of the countr}^ of which he may be then a subject or citizen. In
the oath taken by Mr. Jones there is no such express renunciation of
hi.:. American citizenship, nor do the circumstances manifest any in-
tention on his part to expatriate himself.
" It may, however, at some future time, become a question for
judicial investigation in his case.
*•* The doctrine of the executive branch of the Government on this
subject is thus expressed by the Attorney-General :
" ' To constitute expatriation there must be an actual removal, fol-
lowed by foreign residence, accompanied by authentic renimciation of
pre-existiiig citizenship ' (8 Op. 139), and this view finds support in
some judicial decisions (Juando i\ Taylor, 2 Paine, G52).
" In the absence of a direct judicial determination of the question, I
do not feel disposed to deny to Mr. Jones any right or privilege pertain-
ing to his character of American citizenship, and therefore, while the
Department Avill not undertake to express an authoritative opinion on
the effect Avhicli his course in Hawaii may idtimately have on his
status in that regard, you are authorized to extend to him such protec-
tion as may be properly due to a citizen of the United States residing
in and having acquired a connnercial domicil in a foreign state.
This protection must, of course, be limited and qualilied by the lia-
bilities and obligations incident to such commercial domicil."
Mr. Frelingliuysen, Sec. of State, to Mr. Comly, niin. to Hawaii, July 3,
1882, For. Kel. 1882, 34().
" Mr. Putnam . . . A'as instructed on the 18th ultimo that
citizens of the United States who take the oath of fealty prescribed
by the new constitution of Hawaii remain citizens of the United
States, and are entitled to U' regarded and treated as such by our
consular and diplomatic officers.
" That such a result is contemplated by the Hawaiian Government
§468.] MODES OF EXPATRIATION". 725
appears evident from the last sentence of the oath, Nvhich n-ads:
'Not hereby renouncing, but expressly res;'rving- all allegiance and
citizenship now owing or held by nie.*'
" This Department is informed that this oath is indiscriminately
required of citizens of other nations, who are nevertheless und(>rstood
by their own governments to retain their own nationality of origin.
Inasmuch also as this oath is a requisite condition for exercising anv
political privileges on the island, it is evident that a refusal on the
part of this Government of the assent to taking it granted by other
governments to their citizens w^ould result in the destruction of any
political power previously possessed by our citizens and its transfer
to citizens of other assenting nations.
" The Department, therefore, desires that you will consider the
above instruction as addressed to yourself, and that you will relieve
the minds of all ho7ia fide American citizens who, while honestly
desiring to retain their American nationality, are, in order to obtain
the privileges necessary for a residence in the islands, obliged nnder
local law to take an oath to support the constitution of the Hawaiian
Kingdom."
Mr. Bayard, Sec. of State, to Mr. INIerrill, mln. to Hawaii, Sept. 30, 1887,
For. Rel. 1888, I. 833-8.34.
J. F, Bowler, tried and sentenced for complicity in the attempted
revolt in Hawaii in January, 1805, asked protection as a citizen of
the United States. He had not taken the oath of allegiance to the
Republic of Haw^aii, but that Government denied his right to Amer-
ican protection on the. ground that he was naturalized under the
monarchy. Mr. Willis, the minister of the United States at Hono-
lulu, in reporting the case, stated that section 4)10, Hawaiian Civil
Code, provided the following oath of allegiance:
"The luulersigned, a native of , beinj? duly sworn, upon liis oath
dechires that he will sui)port the constitution and the laws of tlie Hawaiian
Islands, and bear true alleficiance to His iM!^.iosty , the King."
It was held by the supreme court of Hawaii that the taking of this
oath naturalized the alien and admitted him to Hawaiian citizenship."
Mr. Willis called attention to (he instructiou given by ]\Ir. Freling-
huysen to Mr. Condy. July 1. 1SSl>. in the case of P. C. Jones, sujira.
Mr. Willis, niin. to Hawaii, to Mr. (Ireshani. Sec. of State, Feb. 2:*.. 1S!>.").
For. Kel. 180."), II. S:i5.
A similar case to tliat of liowler was the case of C. T. Gulick, who
was also arrested for complicity in the same transaction. Mi-. Willis,
in reporting this case, again referred to the ()])ini()n of Mr. Fri'ling-
huysen, and cited instruction No. (>1, Sept. :50. ISST. of Mr. Bayard,
a 5 Reports, 1G9.
726 NATIONALTTY. [§ 40)8.
" who," as Mr. Willis observed, " seems to have based his opinion
lar«i:oly upon the jjolitical coiulitioiis then existinji^ hciv.''
Mr. AVillis also cited an opinion expressed by the Department of
State, in response to an inquiry of the consul-general of the United
States at Honolulu, in 1S<ST. The consul-general, referring to the new
constitution then lateh' pronndgated by the King, and the oath pre-
scribed in it, said :
"They [Americans in Hawaii] wish to know Avhether they can
take the oath prescribed and retain intact their citizenship at home.
The new obligation does not use the word ' allegiance,' as the old
' denization ' act did, but only requires a declaration of fealty to the
constitution and laws of the kingdom without relinquishing allegi-
ance to their Government abroad. But does not the constitution and
law practically constitute the Government; and is not an oath of
fealty to them in reality fealty to the Kingdom? It is not a ques-
tion as to their ability to throw off their Hawaiian citizenship on re-
turning to their homes, as that has been settled by former decision,
but as to whether the changed wording of the oath will j^ermit
them to exercise the privilege of Hawaiian citizenship here and at
the same time be entitled to the protection accorded to American citi-
zens. In short, can they be citizens of two countries at the same
time?"
Mr. Porter, Assistant Secretary of State, Aug. 18, 1887, replied:
" Citizens of the United States who take the said oath remain citizens
of the United States and are entitled to be regarded and protected
by you as such."
Mr. Willis, referring to the precedents, said:
" These decisions, that without express renunciation of allegiance
our citizens did not under the monarchy forfeit their right to i)ro-
tection, seem to be borne out by the constitutional provisions of the
present Government on the subject.
"Section 2 of article 19 reads: 'Every person receiving letters of
denization shall take the oath prescribed in article 101 of this con-
stitution, and shall thereupon be subject to all of the duties and
obligations of a citizen.' The oath mentioned is ' to support the
constitution, laws, and Government of the Republic of Hawaii,' wi»ich
I construe by reason of the words in italics to be equivalent to the
' oath of allegiance,' the taking of which made a naturalized citizen
under the monarchy. That something more than this is necessary to
absolve the citizen from his allegiance to his former government is
shown by article 18, section 2, which requires of an alien desiring
citizenship to take ' the oath prescribed in article 101, and an oath
abjuring allegiance to the government of his native land and of
allegiance to the Republic of Hawaii.'"
Mr. Willis, niin. to Ilawaii. to Mr. (ireshain, Sec. of State, No. 9.3,
March 7, 1895, For. Rel. 1895, II. 848.
§468.] MODES OF EXPATRIATION. 727
" When Mr. Bowler left this country and went to Hawaii does not
appear, but on March 18, 1895, he voluntarily took an oath to support
the constitution and laws of the Hawaiian Islands and Ix^^ar true
allegiance to the King, without expressly renouncing or reserving
his allegiance to the United States. Section 432 of the statute pre-
scribing this oath (Compiled Laws of Hawaii, 1884) provides that
every foreigner so naturalized shall be deemed for all purposes a
native of the islands, subject only to their laws, and entitled to their
protection, and no longer amenable to his native sovereign while
residing in the Kingdom, nor entitled to resort to his native country
for protection or intervention ; that for every such resort he shall be
subjected to the penalties annexed to rebellion, and that, having been
thus naturalized, he shall be entitled to all the rights and immunities
of a Hawaiian subject. I am informed that the supreme court of
Hawaii has held that the taking of this oath operates to naturalize
the alien and admit him to full citizenship. It is not claimed that,
since 1885, Mr. Bowler ever returned to the United States or resided
elsewhere than on the islands.
" This Government has never held to the doctrine of perpetual alle-
giance; on the contrary, from its organization it has maintained that
the right to throw off one's natural allegiance and assume anotlier is
inalienable. ' Expatriation,' said Attorney-General Bhick in 1859,
' includes not only emigratipn out of one's native country, but natural-
ization in the country adopted as a future residence.' The effect of
naturalization is to place the adopted citizen in the same relation to
the Government as native citizens or subjects. The right of the
Hawaiian Government, with his consent, to adopt Mr. Bowler as
fully as if he had been born upon its soil is as clear as his right to
expatriate himself. He manifested his intention of abandoning his
American citizenship by taking the oath to support the constitution
and laws of Hawaii and bear true allegiance to the King, and, so
far as is known, he manifested no contrary intention before his
arrest. That oath is inconsistent with his alk^giance to the United
States. By taking it he obligated liimself to supj)ort the Government
of his adoption, even to the extent of fighting its battles in the event
of war between it and the country of his origin. He could not bear
true allegiance to both (Jovernments at the same time.
" The President directs that you inform Mr. Bowler he is not en-
titled to the protection of the United States; that in similar cases
3'ou will l)e guided by the views herein exi)ressed. and that you fui--
nish the minister for foreign affairs with a copy of this instruction."'
Mr. Gresliiun. Sec. of Stnte. to Mr. Willi.s, niiii. to Hawaii. April .'., lSOr»,
For. Ilel. 1895, II. 853.
728 NATIONALITY. [§468.
" Mr. Frank Godfrey, who claims to l)e an American citizen, has
asked the intervention of our Government . . . There was . . . , as
I said to him, doubt as to his right to claim protection. He has
l^een a continuous resident of this city since March, 1879. He was a
voter under the Monarchy, but claims that he declined ' several
lucrative positions offered by King Kalakaua, on account of non-
desire to expatriate himself.' He asserts that in 1887 and in 1891
he ' reported to the American legation for service, for which he was
court-martialed in a local corps;' that in 1893, when there were
rumors of an attack on United States forces, he ' reported for service
under the American flag.' He exhibited copy of a letter to President
Dole, of that date, informing him (Dole) of this position. In Sep-
tember, 1894, he was granted special ' letters of denization,' a copy
of which, at his request, I inclose. Article 19 of the Hawaiian con-
stitution refers to such letters and gives the oath required, which oath
Mr. Godfrey signed, and by virtue of which he voted for members of
the constitutional convention. He has held various positions under
the Government, as ' clerk, proof reader, compiler, and in special
service' (under the marshal), but he claims that such employments
were ' temporary, none of them over three months, and that he took
no oath and received no commission.' "
Mr. Willis, min. to Hawaii, to Mr. Olney, See, of State, Oct. 20, 1805,
For. Rel. 1805, II. 865. The certificate of denization was as follows:
Republic of Hawaii.
To whom these presents shall come, gi-eeting:
Know ye that in pursuance of the power conferred upon the executive
council by the constitution of the Republic of Hawaii, all of the
privileges of citizenship, including the right to vote, are by' these
letters of denization conferred upon Frank Godfrey, a native of the
United States of America, who has resided in the Hawaiian Islands
for a period of fifteen years prior to the date of the promulgation of
the constitution, on the 4th day of July, A. D. 1804.
These letters are without prejudice to his native allegiance and subject
to his accountability to the laws of this Republic and his perform-
ance of all the duties and obligations of a citizen.
In testimony whereof we have caused these letters to be made patent and
the great seal of the Republic to be hereto aflixed at the executive
building this 28th day of September, A. D. 1804.
Sanford B. Dole,
PrcsUlciit.
' Francis M. Hatch,
Minister of Foreifjn Affairs.
[great seal.] J. A. King,
Minister of Interior.
J. M. Damon,
Minister of Finance.
WtLLiAM O. Smith,
Attorney-Oeneral.
§468,] MODES OP EXPATRIATION. 729
" I quite agree with you as to the questionable nature of this chiiiu
upon its merits, even Avere Mr. Godfrey's right to claim i)r<)tection
established. It appears, however, from your relation of his state-
ments and from the annexed copy of the certificate of denization
granted to him, that his case is indistinguishable from those of other
American citizens who have acquired local citizenship in Hawaii.
Under the decisions of my predecessor, his taking the oath and vol-
untarily subjecting himself to accountability to the laws of the
Hawaiian Republic and to performance of all the duties and obliga-
tions of a citizen thereof constitute naturalization for all Hawaiian
purposes while within Hawaiian jurisdiction, and the phrase that
'these letters are without prejudice to his native allegiance" can
have no significance either as to his status within Hawaiian jurisdic-
tion or as to his status within the jurisdiction of the United States
should he return hither, for in the latter case it would be determi-
nable by the laws of this country and not by an}' administrative act
of Hawaii,"
Mr. Olney, Sec. of State, to Mr. Willis, min. to Hawaii, Nov. 1."., 1895,
For. Rel. 1895, II. 867.
" I have to acknowledge receipt of your Xo, 27, Diplomatic Series,
of the 15th September inquiring as to your proper treatment of the
cases of certain citizens who, having emigrated to I>iberia and ac-
quired the rights of citizenship in that Republic, still claim that they
are citizens of the United States.
" From your statement it appears that the Liberian Government
does not require colored persons going from the Ignited States to that
Republic to renounce their allegiance to the (ioverniuent of the
United States or to take out naturalization i)apers, as is required in
the case of immigrants from other counti'ies, bi't that the fact of such
a colored citizen of the United States taking out an allotment of
land enal)les him to be regarded for all national purposes as a Lil)e-
rian citizen.
"Analogous questions have arisen in the past regarding the status
of American citizens resorting to Hawaii, the Danish island of St.
Thomas, and other localities where an alien taking up local n^sidence
was, under certain fonnalities, admitted to all rights of citizenship
without requiring abjuration of the allegiance of origin. Tu the
case of Hawaii the formal act of admission to citizenship and the oath
taken by the applicant purported to preserve the original allegiance
for all effects not connected with domicil in Hawaii. Mr. Secretary
Gresham, and after him Secretaries Olney and Sherman, held that
an American so naturalized in Hawaii effectively lost his United
States citizenship.
?30 NATIONALITY. [§ 400.
" In the case of an Amorican in Lil)oria, whicli yon report, the omis-
sion of an oath of alle<j:ianco or rcciuircniont of formal naturalization,
constituting a peculiar exception in favor of American citizens,
would at first sight appear to modify the principle involved in the
Hawaiian decision. In fact, however, the principle involved is sub-
stantially the same. The Republic of Liberia is an indei)endent
sovereignty, in no wise bound to or dependent upon the United States,
and, theoretically at least, it is within the range of i)ossibilities that
differences might arise between the two governments leading even
to rupture of relations. It is inconsistent for an individual to liear
true allegiance at the same time to two different sovereigns, and the
exercise of the rights of citizenship under any alien sovereignty must
be regarded as a vohmtary assumption of the obligations of allegiance
to such sovereignty.
"As a doctrine, therefore, it may be said that when a citizen of the
United States acquires, by whatever process, the status of a Liberian
citizen he performs an act incompatible with his allegiance to the
United States and with his citizenship thereof.
" Nevertheless, the facts are not before this Department with suf-
ficient clearness to enable it to lay down a rule designed to cover
every case of the character you suggest which may arise in Liberia.
Should any case actually arise, the j^articular facts and circumstances
attending it should be reported to the Department for its decision."
Mr. Hay, Sec. of State, to Mr. Suiitli, inin. to Liberia, No. 20, November
6, 1898, MS. Inst. Liberia, II. 34G.
4. Military Service.
§ 409.
Merely entering into the military or naval service of a foreign sov-
ereign does not by itself work expatriation.
Santissinia Trinidad, 1 Brocli. 478 ; 7 Wheat. 28.3.
A native of the United States, naturalized as a citizen of Mexico,
did not forfeit his right, under a grant from Mexico, to lands in
California, by afterwards joining the forces of the United States in
the war by which that territory was acquired.
United States v. Reading, 18 How. 1.
Under the declaration adopted by the convention of Texas, Novem-
ber 7, 1835, promising citizenship and donations of land to all volun-
teers in her war for independence, a citizen of Illinois, who after-
wards entered her army as a volunteer, and who died in her service,
became a citizen of Texas, and his wife's citizenship followed his,
though she never came to Texas.
Kircher v. Murray, 54 Fed. Rep. 617.
§469.] MODES OF EXPATRIATION. 731
" Mr. Jefferson, when Secretary of State, in his letter to Gouver-
neur Morris of the IGth of August, 1793, speaking of the right of
private citizens to make war upon a country with which the Govern-
ment of tlie United States is at peace, says : . . .
" ' It has been pretended, indeed, tliat the engagement of a citizen
in an enterprise of this nature was a divestment of the character of
citizen, and a transfer of jurisdiction over him to another sovereign.
Our citizens are certainly free to divest themselves of that character
by emigration, and other acts manifesting their intention, and may
then become the subjects of another power, and free to do whatever
the subjects of that power may do. But the laws do not admit that
the bare commission of a crime amounts of itself to a divestment of
the character of citizen, and withdraAvs the criminal from their coer-
cion. They would never prescribe an illegal act among the legal
modes by Avhich a citizen might disfranchise himself; nor render
treason, for instance, innocent, by giving it the force of a dissolution
of the obligation of the criminal to his country.'
" This is in acordance with the opinion of the circuit court of the
United States for Pennsylvania, by whom it was stated, in 1798, that,
• if one citizen of the United States may take part in the present war,
ten thousand may. If they may take part on one side, they may take
part on the other; and thus thousands of our fellow-citizens may asso-
chh^ themselves Avith different belligerent powers, destroying not
only those Avith Avhom Ave haA^e no hostility, but destroying each
otlr,>r. In such a case, can aac expect peace among their friends aaIio
stay behind? And AA'ill not a civil AA-ar, AAith all its lamentable train
of evils, be the natural effect? ' "
Rept)rt of Mr. AVel)ster. Soc. of State, to the President, in Thrasher's case,
Dec. 2.% 1S.^)1, (i AVebster's Worlvs, ,">21. r>2-.
" In reply to vour note dated the 21st inst., I liaA'e to inform you
that it appears from the report of the American commissioners in the
Kobinson case, to Avhich you allude, that the only question discussed
Avas that of jurisdiction. It ai)pears to haA'e been contended by the
Mexican ccmnnissioners that R()bins(m parted Avith his nationality on
taking a connnission in the Mexican army, and therefore his legal
representatiA'es could not prosecute his claim before the board. The
American commissioners, hoAAeA'er, decided that Mrs. Robinson, in
Avhose name the claim aa^s prosecuted, Avas an American citizen, and
that tnerefore the case came Avithin the jurisdiction of the board. It
does not appear that the claim Avas resisted on its merits.
'' The decision of the unn)ire Avas that the board had no jurisdiction
of the case.''
Mr. Thomas. Assist. Sec. of State, to Mr. P.rodhead. M. (".. .July L>:J. lS;.">n,
4;") MS. Doni. lA't. ■io^.^. referring to the proceedings of the nii.\ed com-
732 NATTONALTTY. [§ 400.
mission undor tlio treaty botwooii tlio T'liltod States and Mexico of
1S.'>!>. For the history of tlie couiinissioii, see Moore, Int. Arbitra-
tions, II. 122l>-1232.
Enlistment in the military or naval service of a foreign power is
not of itself a renunciation of American citizenship.
Mr. Hunter, Second Assist. Sec. of State, to Mr. Green, consul at Cordoba,
Arji. Ilep., Sept.- 10, 1880, 07 MS. Des]). to Consuls. 2(;4.
" It appeal's that, after lending important services to the republicans
of Mexico (luring the French intervention and the Empire of Maxi-
milian in 18()()-T)7, Mr, Smith took active part in 187G in the suc-
cessful revolutionary movement of General Diaz, became a colonel in
the Mexican army, and was understood to be in such service at the
time of his death, of which the date is given as June 5, 1879.
" You further quote the provision of the Mexican law of January
30, 1850, enacting the naturalization, apparently without any addi-
tional formality beyond the fact of service, of a foreigner who ' ac-
cepts any public office of the nation, or belongs to the army or navy,'
and in view of this you ask in general terms for the views of the De-
partment upon the status of Americans accepting service inider the
Mexican Government, and also specific instructions on the points i)re-
sented in Mr. Strother's letter to you of the 15th ultimo, a copy of
which you transmit. ^
" In answer to the first point presented by you, I may observe that
on the 27tli of July, 18G8, Congress declared that the right of ex-
patriation is a natural and inherent right of all people, indispensable
to the enjoyment of ' life, liberty, and the pursuit of happiness.'
(Section 1999, Revised Statutes.) The act of changing allegiance
and citizenship must necessarily conform to the laws of the country
where the American who voluntarily expatriates himself becomes a
citizen or subject. No law of the United States, for instance, can
make a Mexican citizen out of one of our own citizens, or prevent
him from becoming a Mexican citizen by the operation of Mexican
law. Mr. Smith, by the act of voluntarily taking military service
under the Government of Mexico while a hiAV was in existence by
which such an act on his part conferred and involved the assumj^tion
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, ^jreviously
quoted, no permission of the Government of the United States is
necessary to the exercise of the right of expatriation."
Mr. F. W. Seward, Act. Sec. of State, to Mr. Foster, min. to Mexico, Aug.
1.3, 1879, For. Ilel. 1870, 824.
To the inquiry whether an American citizen, by enlisting in the military
service of a foreign prince, would lose his national chjira<-ter as a
citizen of the United States, the following answer was made : " Volun-
§ 4G0.] MODES or EXPATRIATION. 733
tary eiilistmont in the iiiilitjiry service of a nation is one of tlie high-
est proofs that a man can give of allegiance and fidelity to that power,
and is always accepted as a renunciation of his former nationality
unless such service is undertaken with the express permission of his
own Government. In regaixl to your further iniiuiry as to how far this
Government might l)e disposed to interfere in hehalf of such person,
were his life in danger as a captive to the enemy of the prince in
whose service he was, the Department can not undertake to answer
that question in advance of an actual case presented witli all its
attending facts and circumstances." (Mr. F. W. Seward, Assist. Sec.
of State, to Mr. Thomas, May 5, 1S77, 118 MS. Dom. Let. l.ll.)
" I have received your despatch No. 172, of the 28th idtimo, rehi-
tive to the case of William Sherwell, an American citizen, Avho has
applied to you for protection on account of cruelty and ill treatment
which he has- suffered at the hands of local authorities at Orizana,
State of Vera Cruz, -where he resides.
" I desire to approve your unofficial ])resentation of the case to
Mr. Mariscal, and your intinuition to him that the United States
could not accept his theory that because Mr. Sherwell had served in
the Mexican army he had thereby placed himself beyond the pale of
United States protection. . , . You will find not only a mass of
unpublished correspondence in the archives of your legation showing
this Government's position under such circumstances, but the For-
eign Relations of 1882, 1883, 1884, 1885, and 1887 may also be
profitably consulted in this respect.
" This Government maintains that naturalization is a voluntary
act, not to be imputed or determined by construction, but to be
affirmatively performed by the individual. While it does not deny
that a citizen may voluntarily divest himself of his allegiance and
acquire a new one, and while it also recognizes that there are certain
specific acts Avhich he may perform in a foreign state, and which in
themselves are tantamount to a voluntary and open renunciation of
his former nationality or allegiance, yet manifestly the allegation
of the Mexican Government in Mr. SherwelTs case is not of this
nature. A foreign nnniicipal law can not divest an American citi-
zen ipso facto of his allegiance on the ground of his having per-
formed duty in the military service of an alien .state, or of having
ac(iuired title to real estate under the laws of such state, or of being
employed by a chartered corporation thereof.
"Besides these generally recognized principles of international
usage, there are historical precedents which emphasize the position
of this Government in respect of its citizens temporarily abroad.
"As evidence of this it may be stated that entering the military
service of a foreign stat(> is l)y itself in no sense an abjuration of
prior nationalitv. Tn our Tvevolutionary war over six thonsand
Frenchmen were enlisted in our armies, either in onr marine forces
734 NATIONALITY. [§409.
or as auxiliaries, but tho cases in which those thus serviu*^ accepted
an American nationality were very few. This Government never
maintained, nor did France ever concede, that this enlisting into
our service had any effect on their nationality; and France after-
Avards made several a])plications to this Government through her
diplomatic rei^resentative for relief to such of those French sub-
jects as, after their return, had claims against the United States.
La Fayette was a major-general in our service, but during the diplo-
matic controversies that arose as to him subsequently, when he was
a prisoner in Austria, this Government never claimed that he was
a citizen of the United States or that he ever ceased to be a French-
man. The same may be said of the Orleans i)rinces, who joined
General McClellan's army during the late war of the rebellion. An
interesting case to the point is that of late Prince Imperial of France,
W'ho died fighting in the English service, but whose political status
was treated in England as French. Still another striking proof of
the general acceptance of this rule is the fact that there are now thou-
sands of foreigners residing in the country of their original alle-
giance wdio receive pensions for their services to the United States
as soldiers of the late civil war, although thej?^ were never natural-
ized citizens of the United States. Not only did these pensioners
never claim that they had become .citizens of the United States by
their enlisting, but in no case did their home sovereigns, so far as this
Department is advised, either object to their enlisting in our armies
or claim that by such enlistment any change was effected in their
allegiance or their right to j^rotection based on that allegiance.
" To sum up, therefore, as a general rule it may be maintained
that the mere fact of entering into a foreign military service does
not divest either nationality or domicil."
Mr. Bayard, Sec. of State, to Mr. Whitehouse, charge at Mexico, No. 10(5,
Nov. 14, 1888, MS. Inst. Mexico, XXII. 300.
" Citizens of the United States do not lose their nationality by
enlisting in foreign armies.''
Mr. Rives, Assist. Sec. of State, to ^Ir. Putnam, consul-general at Hono-
lulu, Jan. 5, 1888, For. Kel. 1805, II. 850.
" I have the honor to enclose a copy of my reply to your telegram
of yesterday, by which I informed you that service in the English
army would not deprive a native American of citizenshij), and that
he remains a citizen unless formally naturalized in England."
Mr. Foster. Sec. of State, to Mr. Ilawley, I^. S. S., Nov. 1, 1892, 18!) MS.
Dom. Let. 42.
An inquiry having been nuide whether a citizen of the United
States engaged in mercantile business in Nicaragua had forfeited his
§ 470.] KENUNCIATION OF NATURALIZATION. 735
American citizenship in consequence of his having accepted a com-
mission to the Nicaraguan army, to aid in the suppression of a rebel-
lion against the Government, the Department of State said : " There
is no statutory provision determining the circumstances under which
a citizen of the United States may forfeit his nationality. Should
the circumstances of a citizen's accepting military or civil office under
a foreign government make him, under the law of the foreign coun-
try, a citizen thereof, the act would be deemed a voluntary abandon-
ment of his American status and an assumption of another alle-
giance."
Mr. Hay, Sec. of State, to Mr. Turley, April G, 1899, 236 MS. Dom. Let.
186.
XIV. RENUNCIATION OF NATURALIZATION.
1. General 1'rinciples.
§470.
" There can be no doubt that, on the same principle which admits
of aliens being naturalized in the United States, they may after-
wards cast off the character of American citizen and resume their
former allegiance or take that of any other country. In case of re-
turn to the British dominions, under the circumstances which the
first question comprehends, and as the doctrine of perpetual alle-
giance is there maintained, it is highly probable that our tribunals
would adjudge the loss of citizenship to be incurred."
Mr. Madison, Sec. of State, to Mr. INIurray, June IG, 1803, 1 MS. Desp. to
Consuls, 1G8.
"A vessel is not entitled to be documented as a vessel of the United
States, or, if so documented, to the benefits thereof, if owned, in whole
or in part, by any person naturalized in the United States and resid-
ing for more than one year in the country from which ho originated,
or for more than two years in any foreign country, unless in the ca-
pacity of a consul or other public agent of the United States."
Treasury KoKulations, 1884, p. 5; Kev. Stat., § 4134; act of March 27,
1804, 2 Stat. 29G.
" From the documents transmitted with your despatch No. '24, it
appears that Mr. Filippi |a native of Italy] was naturalized as a
citizen of the United States in the year 1S07, and that in the same
year lie left this country. There is nothing to indicate any intention
on his part of returning here, or that he lias any tie of interest or of
social connection linked with the welfare of this nation. Without
recurring to the litigious ((uestion. how far his rights as a citizen
might be affected in the judicial tribunals of this country, by such a
long and continued absence following almost immediately after his
736 NATIONALITY. [§ 470.
naturalization, it must be obvious that the obligations of the United
States to protect and defend the interests of such a person, in con-
troversies originating in foreign countries, and against the rights of
their jurisdiction, can not be supposed to bind them to the same ex-
tent at which it might be proper to interpose in behalf of our resident
or native citizens. Whatever imperfections may \)e supposed to exist
in the niDdes of administering justice at Tunis, a merchant who, in
the exercise of his own discretion, engages in commercial speculations
there must be prepared to take the chances of arbitrary decision to
which they are liable, nor is it consistent with any 2)rinciple of natu-
ral or national law, that a country, with wdiich a merchant has no
other relation than that of his having once obtained an act of natu-
ralization from its records, should be involved in contest and perhaps
entangled in war with another nation for the settlement to his satis-
faction of his private transactions of trade."
Mr. John Quiuoy Adauis, Sec. of State, to Mr. Shaler, consul-general to
Algiers, No. 1, Jan. Hi, 1818, 2 MS. Desp. to Consuls, 85.
"They [the United States] have no means of judging of the merits of
the controversy, as a question between individuals ; neither is it
understood that a foreigner, altho' once naturalized as a citizen of the
United States but having long since finally left this country without
intention of returning to it, can claim the protection of this nation in
the states of Barbary. Should any question in this case hereafter
occur, it is to be distinctly stated that it is one in which the Gov-
ernment of the United States has taken no part, has no concern, and
will not suffer to be made the occasion of any demand from the Bey
whatever." (Mr. Adams, Sec. of State, to Mr. Stith, consul at Tunis,
May 27. 18lO, 2 MS. Desp. to Consuls, 1G4.)
"After his naturalization here, if indeed he was naturalized, he
returned to his native country to reside (for Cuba is a part of Spain),
went into public employment there, and reestablished his domicil.
His native allegiance may therefore be considered as having reverted.
Spain could well claim him as one of her subjects, and treat him as
such, without the United States being in a condition, if they had the
disposition, to question her right to do so."
Mr. Marcy, Sec. of State, to Mr. Gadsden, niin. to Mexico, No. 54, Oct. 22,
1855, MS. Inst. Mexico, XVII. 54.
"Mr. Webster states: 'It can admit of no doubt that the natu-
ralization laws of the United States contemplate the residence in the
country of naturalized citizens, unless they shall go abroad in the
public service or for temporary purposes,' In this opinion I fully
concur,"
Mr. Seward, Sec. of State, to Mr. Marsh, min. to Italy, Jan. 21, 1863, MS.
Inst. Italy. I. 171. referring to the return of naturalized American
citizens of Italian origin to their native c-ountry " with the evident
intention of taking up their abode " there.
§ 470.] RENUNCIATION OF NATURALIZATION. 737
The passage quoted from Mr. Webster is in Mr. Webster, Sec. of State,
to Mr. Porter, min. to Turkey, Aug. 26, 1842, MS. Inst. Turkey, I. 29.5.
" If a Prussian subject after having been naturalized as an Ameri-
can citizen resumes his permanent residence in his native hind we can-
not deny that he also resumes his original allegiance and loses his
quality of American citizen. If it is his intention permanently to re-
side in Prussia the obligations of a Prussian subject attach to him the
moment he touches the Prussian territory. What the intention is
must be gathered from facts,"
Mr. E. Peshine Smith, examiner of chiims, to Mr. Ilance, Jan. 21, 1867, 7.">
MS. Dom. Let., 185.
" Naturalization is intended for the benefit of those who have the
intention of residing at present and not prospectively in the United
States."
Mr. Fish, Sec. of State, to Mr. Redmond, April 3, 1800, 80 MS Dom. Let.,
530.
" If Mr. Medina was ever a citizen, which appears to be doubtful
from the records of this Department, he has lost his citizenship by
accepting office from his native country. The passport cannot be re-
newed."
Mr. J. C. B. Davis, Assist. See. ♦)f State, to Mr. Weile, consul at Guaya-
quil, April 18, 1870, 57 MS. Desp. to Consuls, ;i(M).
" In respect to naturalized citizens of the United States, resident in
Ecuador, but not natives of that country, who left this eountiT imder
circumstances indicating that they obtained naturalization, not with a
view to permanent residence here, l)ut for the purpose of claiming the
protection of this Government in foreign countries, the reasoning and
the instructions contained in the circular of October 14, 18()D. are ap-
plicable in a general sense. They have not, however, quite the same
force and emijhasis as in the case of naturalized citizens returning to
the country of their native allegiance. There is not the same pre-
sumption that when they go to their native land it is with the inten-
tion of establishing an abiding donucil. Moreover, the Government
under whose jurisdiction they dwell cannot claim, as in the other case,
that they revert to their native allegiance, but can only claim that
local and temporary allegiance which every one owes to the (iovern-
ment whose protection he enjoys."
Mr. Fish. Sec. of State, to Mr. Wing, Apr. 0, 1871. .MS. Inst. Ecuador.
I. 2(>:{. For an extract from the circular of Oct. 14. IStili, s«'c :Mr.
Fish, So<'. of State, to Mr. Motley, nun. to England, infra. S 475.
Where the subject is not regulated by treaty, no distinction can be
made, with respect to protection abroad, between naturalized and
H. Doc. 551— vol ;3 i7
788 NATIONALITY. [§ 470.
native-born citizens of the United States. The domiciliation of a
naturalized citizen of the United States in his native country would
not of itself deprive him of his right to the j^rotection of this Gov-
ernment.
Willlains. At. Gen., 1873, 14 Op. 205.
For discussion of the natnnilization laws of the United States, see 1
Philliniore, Int. Law (.3d ed.), 451; Lawrence, Com. sur Droit Int.,
III. 19G.
" Continuous absence from this country does not necessarily pre-
sume expatriation. It has ahvays been held to be consistent with a
purpose of returning; and in the case of a natural-born citizen, or of
a naturalized citizen, so residing in any countr3% except the country
of his nativity, this Department would require its agents to extend
the protection of the Government to all citizens, except in the pres-
ence of strong affirmative proof of a purpose of expatriation. But
when a naturalized citizen returns to his native land to reside, the
action of the treaty-making power above referred to would seem to
require that such agents be jealous and scrutinizing when he seeks
their intervention. Even in such case the purpose of not renouncing
the adopted citizenship might be manifested and proved in various
ways, such as the payment of an income tax when such a tax was im-
posed, the maintenance of a domicil, and the payment of taxes on
personal property within the United States, or other affirmative
action.
" It is the duty of the diplomatic and consular agents of the United
States to listen to all facts which may be produced tending to exclude
the presumption of expatriation, and to give to them the weight to
which in each case they may be entitled."
Mr. Fish, Sec. of State, to Mr. Washburne, min. to France, June 28, 1873,
For. Rel. 1873, I. 256, 260.
" I am of opinion that the entrance into the civil service of the
country of his nativity by a naturalized citizen of the United States,
who has returned to that country, and continues his residence there
beyond the length of time at which, by convention between the two
States, the intent not to return to the country of adoption may be held
to exist, must he taken to be very strong ' evidence of the absence of
intent to return,' and must raise a presumption, which might, and
probably would, make it xery difficult for the country of adoption to
assert the continued citizenship of the party thus taking service and
continuing to reside in the country of his nativity."
Mr. Fish, Sec. of State, to Mr. Miiller, .Jan. 28, 1874, 101 MS. Dom. Let 222.
A naturalized citizen of the United States i?an not be regarded as
renouncing his United States citizenship merely because he returns to
his native land. To sustain such renunciation, there nmst be either an
§ 470.] RENUNCIATION OF NATURALIZATION. 739
express declaration of renunciation, or acts from which it may be
logically inferred.
Mr. Frelinghuysen, Sec. of State, to Mr. Osborne, June 19, 1882, MS. Inst.
Arg. Rep. XVI. 2.38; same to same, .July IS, 188.'}, id. 275.
Payment of taxes in the United States by a naturalized absentee,
on his interest in a business agency there, such payment being made
by him as a trader and not as a. citizen, will not sustain a claim of
retention of American nationality.
Mr. Frelinghuysen, Sec. of State, to Mr. Cramer, No. 12, Nov. 14, 1882,
MS. Inst. Switz. II. 152.
" There may be circumstances that amount to a renunciation of the
citizenship acquired by naturalization; returning to the country of
one's nativity to reside there and continuing such residence there for
an indefinite time; without manifesting any intention to return to
the United States, w^ould be evidence tending to show" an intentional
surrender of the rights of American citizenship."
Mr. Frelinghuysen, Sec. of State, to Mr. Ilerdocia, Dec. 8, 1882, 144 MS.
Dom. Let. 623
Abandonment of naturalization in the United States may be in-
ferred from a protracted stay in the country of origin after return-
ing there, coupled with proof of anhnus manendi^ and of entering on
political duties in the latter country.
Mr. Davis, Acting Sec. of State, to Mr. Taft, Jan. 18, ISS,*?, MS. Inst.
Austria, III, 224.
In 1883 " a native-born citizen of the Argentine Republic Avho
had come to the United States many years before and been natural-
ized here, returned to his native country and resided there for a
number of years without intention, expressed or manifested, of re-
turning to this his adopted country. He sought the protection of
this Government, but it was held that the facts were sufficient to
show that he had resumed his luitive allegiance to the Argentine
Government and he was not entitled to the protection of this country."
Mr. J. Davis, Act. Sec. of State, to Mr. Barnett, consul at Paramaribo.
Aug. 20, 1884, 111 MS. Inst. Consuls, 41.3.
" Nor does this Government concur in the projiosition that a natu-
ralized citizen of the United States can have such citizenship extin-
guished solely by residence, however protracted, in the country of his
origin. The question of his loss of such citizenship is to be deter-
mined by the intent of the party, to be inferred from his acts aud all
the surrounding circumstances of the case, and is not to 1m' cou-
clusLvely settled by mere lapse of time or term of residence in the
740 NATIONALITY, [§ 470.
countn' of his origin. We inaintaiii this as a rule of international
interpretation of naturalization treaties, and in the case of Germany
have lately held that two years' stay creates only a presumption of
abandonment of the acquired citizenship, which is open to rebuttal."'
Mr. Bayard, Sec. of State, to Mr. Winchester, May 17, 1880, MS. Inst.
Switzerland, II. 311. See, also, Mr. Porter, Acting Sec. of State, to
Mr. Curry, niin. to Spain, Jan. 4, 1880, Infra, § 475.
" Your dispatch, No. 193, of the 1st instant, in reference to the
application of Albert liandau for a passport, has l)een received.
" In the attached memorial Mr. Landau alleges that he was duly
naturalized in Philadelphia during the year 1854, and that subse-
quently in the same year, having obtained a j^assport from this De-
partment, he returned to Europe. During the following year, it is
alleged, he lost both his record of naturalization and his passport,
but obtained another passport from the legation at Constantinople.
This was subsequently canceled when a new passport was given him
by the consul-general at Alexandria, Egypt, in 18()3 ; the latter pass-
port he is unable to produce. He has not, apparently, visited the
United States since 1854. He now desires a new passport to be issued
to him b}' 3^our legation.
''It is not necessary to consider whether naturalization can be
proved by parole, in case of (Jestruction of the record, for in this
case there is no adequate j^roof that the record of naturalization ever
existed. But even supposing that Mr. Landau's naturalization were
duly proven, I hold that he is not now entitled to a passport. He
was naturalized, so he claims, in 1854, at Philadelphia. He was in
the Levant in 1857, and there amassed a fortune, with which, about
1868, he retired to Vienna. During the Avliole of this period, ac-
cording to his own statement, he was absent from the United States.
This absence, therefore, connnencing almpst at the instant of his
naturalization, continued over thirty-four years, during wdiich time
he performed none of the duties, nor made any of the contributions,
of a citizen to the support or welfare of the country of his adoption,
although during a portion of that time all the resources of that
country were severely drawn upon. Had he paid an income tax, as
by law he should have done if he retained his citizenship during
the period when that tax was imposed, it would be easy for him to
establish such payment. No attempt has been made to do so, and
we must therefore presume that no such tax was paid. Had he j)aid
taxes to the State of Pennsylvania, in which it is to be inferred from
his statements he claims to have been domiciled, this .also could bo
easily proved; and that no such proof is offered justifies the pre-
sumption that none of such taxes were paid. He keej^s exempt from
all taxation in this country the wealth he has accumulated, under
§ 470.] RENUNCIATION OF NATURALIZATION. 741
the protection of a passport and alleged citizenship of this Govern-
ment, and he thus stands aloof, demanding the protection of allegi-
ance while abandoning all its duties, and, from a foreign land, applies
to this Government for a passport which, without his performing any
of the duties of a citizen of the United States, Avould relieve him, so
far as the interposition of the United States could do so, froui the
duties of a subject of Austria. This is not a case in which the United
States can or ought to interpose. If Mr. Landau had ever any title
to be considered a citizen of the United States, he has abandoned it.
Citizenship of the United States, it is my duty to say, is a high privi-
lege, and, when granted to an alien, confers great prerogatives, whose
maintenance, when they are honestly procured and faithfully exer-
cised, the United States will exert its fullest powers to vindicate.
These prerogatives are granted to protect, not merely men of wealth,
such as the present memorialist, but the humblest and most friendless
immigrant who seeks shelter and a home on these shores. But the
enjoyment of the prerogatives is conditioned on the performance of
the correlative duties of loyal service, of love to the country of adop-
tion, of support of the country when she needs support, and of
payment of the just taxes that country imposes ujion all its citizens.
When the performance of that duty ceases, then cease the jireroga-
tives of the citizenship on which they are conditioned. As far as I
can judge from what is before me in the present case, tliese duties of
citizenship have been steadily evaded by nonresidence and have never
been performed by the memorialist. Whatever may have once been
his title to citizenship, it Avas long since abandoned by hiui. His
application for a passport should, therefore, be refused."
Mr. Bayard. Sec. of State, to ilr. Lee, cliargr at Vienna, July 24, ISSC,
For. Kel. 1880, 11.
Hercules A. Proios was naturalized in the United States August
14, 1871. The date and place of his birth and the time of his coming
to the United States were uncertain. In a passport application uiade
in 1871 he stated that he was born in 1844. In an application made
in 1887, he gave the date of his birth as 1840. In his application of
1871 he stated that he was a luitive of (xreece. but there was other
evidence that tended to show that he was born in Constantinople of
Greek parents. The precise time of his departure from the United
States was uncertain, but it appeared that it was soon after his
naturalization. After his return to Turkey he renuuned there con-
tinuously till 1887, a period of from fourteen to sixteen years, when
he settled himself as a ship-chandler in southern Russia. While in
Turkey he was em[)loyed in an institution under the jurisdiction of
the (iovernment. He was not a member of any .American conuniinity
in that country, nor connected with any American interests there or
742 NATIONALITY. [§ 470.
elsewhere. He had manifested no intention to return to the United
States, and the consul -<?eneral at Constantinople rej)()rte(l that he
iiad told him that he did not intend to return to America. Upon
these facts, it was held that he had abandoned his American naturali-
zation, and the legation and consulate-general of the United States
at Constantinople were instructed to decline to vise his passport or
further to recognize his claim to American citizenship.
Mr. Kives, Assistant Sec. of State, to Mr. Proios, Oct. 2.5, 1888, For. Rel.
1888, II. 1G20.
Drf Dongian, a native of Turkey, who had been naturalized as
a citizen of the United States, returned to Turkey, and, ostensibly
with a view to facilitate his admission to practice medicine, permitted
himself to be registered by the Bureau of Nationality as an Ottoman
subject, at the same time surrendering to the bureau his American
passport. He afterwards invoked the aid of the American legation
to cause the delivery of his certified diploma to him as a citizen of
the United States, and explained that he had regarded his previous
action as an empty formality, " merely dictated by expediency, his
intention always being to resume his acquired American citizenship."
The legation, however, required him to surrender his certificate of
naturalization, and sent it to the Department of State. The Depart-
ment approved the legation's action, and notified the court by which
the naturalization was granted, with a view to prevent him from
obtaining a duplicate certificate.
Mr. Wharton, Act. Sec. of State, to Mr. Ilirsch, July 10, 1891, For. Kel.
1891, 752.
A report of the consul at St«ttgart that Hugo Brudi, a naturalized citi-
zen of German origin, had signified his intention of renouncing his
American citizenship, was sent to the naturalizing court. (Mr.
Cridler, Third Assist. Sec. of State, to Clerk of the Court of Common
Pleas at Philadelphia, Nov. IG, 1897, 222 MS. Dom. Let. 4G8.)
It appearing that a native of Nicaragua, who had been naturalized
in the United States, had afterwards resumed his residence in his
native country and held there for a brief term the office of alcalde, the
Department of State said : " It is probable that in accepting office he
was required to subscribe to an oath to support and defend the con-
stitution of Nicaragua and uphold its laws. This seems certainly to
imply citizenship, if indeed it is not tantamount to a renunciation of
his acquired allegiance." It was ascertained that such an oath was
taken, the precise form being " to obey and cause to be obeyed the
constitution and the laws." It was decided that the " nature of the
oath " was " conclusive against the issuance of a passport."
Mr. Wharton, Acting Sec. of State, to Mr. Shannon, min. to N'icaragua,
March 1, 1893; Mr. Gresham, Sec. of State, to Mr. Baker, min. to
§ 470.] RENUNCIATION OF NATURALIZATION. 743
Nicaragua, May 17, 189.3, For. Rel. 189.3, 183, 185. As the issuance
of a pass[)ort was the only question l)efore the Department, tlie
broader question of renunciation of acquired allegiance was not defi-
nitely decided.
The Government of Colombia maintains that nationality acquired
by naturalization in another country is lost by the individual subse-
quently becoming domiciled in his native country.
For. Rel. 1894, 190.
Adam Aivazian, a native of Turkey, was naturalized at Fresno,
California, April 20, 1890, after having resided in the United States
about eight years. Immediately after his naturalization he obtained
a passport, and, returning to Turkey, settled near Yozgad, where he
married, purchased a dwelling, and engaged in trade. In 1894,
during the Armenian troubles, he was arrested, tried by court-martial,
and sentenced to ten years' imprisonment, with transportation, on a
charge of having forcibly aided a condemned Armenian brigand to
escape. The grand vizier was unwilling to allow any foreigner to go
to Yozgad, owing to the disturbed condition of the town, but had him
brought to Constantinople, where the secretary of the American
legation saw and conversed with him. On his own statements, and
what could be learned from other sources, the existence of an intention
to return to the United States w^as uncertain. The legation was in-
structed " to investigate this case, and, should Aivazian's conserva-
tion of the rights of American citizenship not be established, to in-
form the Turkish minister for foreign affairs that this Government
would not accord to him the privileges and protection it cheerfully
accords to both its native and naturalized citizens."
Mr. Greshara, Sec. of State, to Mr. Terrell, niin. to Turkey. Aug. 27. 18i)4.
For. Rel. 1894, 779.
Aivazian was afterwards pardoned and discharged. (For. Rel. 1894,
780.)
If the circumstances of return of a naturalized citizen of the
United States to the country of his origin are such as to indicate " a
definitive abandonment of residence and domiciliary or representative
business interest in the United States " and a resumption of domicil
in the country of origin, the '* effective renewal of the original status
may take place immediately upon the return to that country." The
same thing occurs where a naturalized citizen goes to a country other
than that of his origin with the intention to reside there permanently,
but the presumption of such an intention is not so strong as in the
case of a person returning to the country of his origin.
Mr. Adee. Act. Sec. of State, to .Mr. Little, consul at Tegucigalpa, .Tuly 13.
mm, For. Rel. 189.1, II. 9.3.-)-937.
744 Kationaltty. [§ 471.
Tn the case of a native of Turkey, who reentered his native land
as a Turk and accepted a local passport as a Turkish subject, his
course was declared to amount to " an act of voluntary repatriation
by which he released himself from any further claim of the United
States upon his allegiance, and renounced all claim to the protection
of his Government."
Mr. Artec, Acting Sec. of State, to Mr. Dickinson, No. 29, Sept. 3, 1808,
1G.3 MS. Inst. Consuls, .'')08.
The precise point of the instrnetion was the approval of the action of
the consul-general at Constantinoi)le in refusing to visa the indi-
vidual's American passport.
Ablahat Odi.shu Samuel resided in the United States from 1893
to 189G. From 1806 to 1899 he lived abroad. From 1899 to 1901
he again resided in the United States, and obtained a certificate of
naturalization. He then returned to Persia, and was still residing
there when, in January, 1904, he applied for an American passport,
to include two children, who were born in Persia. The action of the
American minister at Teheran in refusing to issue the passport was
approved, on the strength of the provisions of the circular of March
27, 1899, with regard to loss of the right to protection through per-
manent residence abroad. The provisions of the same circular were
also cited, to the effect that the natives of semibarbarous countries,
or of countries in which the United States exercises extraterritorial
jurisdiction, who have been naturalized in the United States, are
subject to all the restrictions of the circular with regard to permanent
foreign residence on returning to their country of origin.
For. Rel. 1904, C>m. For the circular of March 27, 1899, see infra, §§
517, 519, 522.
2. Gebman Treaties.
§ 471.
" 3. If a German naturalized in America renews his residence in
North Germany without intent to return to America, he shall be held
to have renounced his naturalization in the United States. The
intent not to return may be held to exist when the person naturalized
in the one country resides more than two j^ears in the other country.
The same provision applies to Wiirtemberg as to a ' Wiirtemberger,'
to Hes.se Darmstadt as to a ' Hessian naturalized in America but
originally a citizen of the part of the Grand Duchy not included in
the North German Confederation;' to Bavaria as to a 'Bavarian,'
but as 'to the latter power it is declared that the article ' shall only
have this meaning, that the adopted country of the emigrant can
not prevent him from acquiring once more his former citizenship;
§ 471.] ItENUNCTATTON OF NATtJRALtZATlON. 745
hut not that the state to which the emip-ant originally belonged is
bound to restore him at once to his original relation/ As to Baden, it
if, only provided that the emigrant from the one state who is to be
held as a citizen of the other state, shall not on his return to his
original country be constrained to resume his former citizenship; yet,
if he shall, of his own accord, reacquire it and renounce the citizen-
ship obtained by naturalization, such a renunciation is allowed, and
no fixed period of residence shall be required for the recognition of
his recovery of citizenship in his original country.
" Here, again, we find great defects, which it is verj^ desirable to
have remedied.
"(«) The provisions respecting residence in the old country and
the reacquisition of citizenship are unequal, and in the case of Bavaria
uncertain.
"(^) Residence in other parts of Germany than that covered by
the provisions of the particular treaty is inoperative to work a loss
of the acquired citizenship, which is against the interests and the
real intention of the United States and of Germany."
Mr. Fish. Sec. of State, to Mr. Bancroft, niin. to Germany, April 14. 1873,
For. Rel. 187.*?, I. 280.
"As it regards recovering German citizenship by a German wdio
has become naturalized in America, all the powers have thus far acted
upon the same rules. It is agreed that a German who has once
passed out of his connection with a German State cannot l)ecome
again a German citizen without some express choice of his own, and
without the consent of the government.
"A. With regard to the reacquisition of citizenship the Gernuui
States exercise only the same power which we exercise. We natural-
ize Germans after a short residence, if they serve in the Aruiy or
Navy, but that binds us only, and so it is with the German States.
" B. So long as Bavaria, AViirtemberg, and the rest weiv inde-
pendent powers, the residence of a naturalized American there had
just the same effect as if he had resided in Belgium or Holland.
Now that they form ])art of the (ierman Empire, no case has come,
or is likely to come up, that involves the (juestion whether the union
brings wit4i it a change in (his respect. In i)ractice it would be as
easy to pass, for example, from Baden to Switzerland, as from leaden
to Wiirtemberg; and so of the other powei-s, if the evasion of the
treaty which is suggested is desired. So this point will never be of
practical importance. I cannot see how American interests are
thereby exposed to injury; because* America, like (lermany, always
retains the power for itself to decide what length of absence, if any,
shall forfeit American citizenship."
Mr. Bancroft, niin. to CcM-niany. to Mr. Fisii, See. of State. May 8. 187.3,
For. Rel. 187;{. I. 284. 289.
746 NATIONALITY. [§ 471.
"A German can now come to America, obtain his naturalization
papers throug^h the operation of our laws, return to Germany and
reside there indefinitely as an American citizen, provided he does not
reside the requisite time for renunciation in the territories under the
jurisdiction of the particular power of whom he was formerly a sub-
ject. It is true that such a course would l)e a fraud upon the United
States, and a fraud upon the German Empire. We should be de-
prived of the resources of the naturalized citizen towards the support
of the state; Germany would be deprived of the right to call upon him
for her defense. It is for the interest of neither to perpetuate this.
We are ready on our side to remedy it by extending the provisions
of the treaty with North Germany over the Empire, as I have already
said; but if our proposition will not be listened to, we must await
the return of a better reason."
Mr. Fish, Sec. of State, to Mr. Bancroft, luin. to Germany, June 4, 187;^,
For. Rel. 187.3, I. 292, 293.
Two years' residence in such cases is merely prima facie proof of
abandonment of nationality.
Mr. Fish to Mr. Davis, July 30. 1875, MS. Inst. Germany, XVI. 88; same
to same, June 2G, 1876, id. 217.
A ladyj born in Prussia, came to the United States in 1852, and in
185G was married there to a native of Bavaria, who had been natural-
ized in the United States. The pair resided in the United States till
1862, when, with four children, they went to Wiesbaden, where
another child was born. In 1864 the husband died ; and in 1869 the
widow, with her children, went to Frankfort on the Main, where she
afterwards resided. In 1875 she applied to the American legation
in Berlin for a passport for herself and her five children. The case
having been submitted to the Department of State, the Department
held that the applicant, though a native of Prussia, became a citizen
of the United States by her marriage with an American citizen, but
that, if she came within the provisions of Art. IV. of the treaty of
Feb. 22, 1868, she was not entitled to a passport ; and that a renewed
residence of thirteen years in Germany, begun and continued, as was
stated, because of " having no special business to attend to in the
United States," appeared to be, " unless wonderfully explained,"
evidence of a permanent residence in the country of origin.
Mr. Fish, Sec. of State, to Mr. Davis, niin. to Germany, Sept. 22, 1875,
MS. Inst. Germany, XVI. 101.
" Your No. 189 is received. It encloses an announcement that
hereafter naturalized Germans who have resided in (Jermany more
than two years shall not be forced into the army immediately upon
§471.] RENUNCIATION OP NATURALIZATION. 747
the expiration of that time, but shall first be offered an opportunity
to return to the United States. . . .
" The Department has not doubted that the construction given to
article 4 of the treaty by both Mr. Bancroft and yourself, viz, that a
residence of two years did not of itself forfeit naturalization, but
that the question of the intent of the persons was then presented and
to be decided according to the facts, was the correct one, and you
are to be congratulated that a result has been reached which, if it
does not concede all you have claimed as to the proix'r construction
of this article, at least abandons a practice of enforcing the opposite
construction which has been insisted on by the German military
authorities. . . .
" It may not be safe or possible, however, to concede that, in every
case which may in the future arise, the German authorities may com-
pel the person to depart or to take service in the army. It is hoped,
however, that the announcement referred to, and the manner in
which the military laws may in the future be enforced, may prevent
the recurrence of further questions."
Mr. Fish, Sec. of State, to Mr. Davis, min. to Germanj', No. 140, Nov. 5,
1875, MS. Inst. Germany, XVI. 113.
A native of Prussia, born January 22, 1853, obtained in 1809 his
discharge from Prussian allegiance and emigrated to the United
States. In 1874 he was naturalized, and immediately returned to
Prussia. The authorities ordered him to leave, or to resume his
original status, but, on the interposition of the American legation,
manifested a willingness to permit him, although he was then en-
gaged in business, to reside for two years without molestation. It
seemed probable, however, that at the end of that time he would be
ordered to resume his allegiance and to perform his duties as a (ier-
man, or to depart from the country. With reference to this contin-
gency the Department of State said :
"After he shall have resided in Frankfort for such a time, or under
such circumstances as may prove fairly a want of intent to return to
the United States, he may be held to have forfeited his naturalization.
When this occurs it may be immaterial whether he does or does not
owe allegiance to Germany, but it would appear at least that he can
not longer claim the right to reside in Germany with all the privi-
leges accorded by the treaty of 18G8."
Mr. Fish. Sec. of State, to Mr. Davis, min. to Germany, No. 2.">t>, .luly V-i,
1870. MS. Inst. Germany, XVI. 223.
"A naturalized citizen may forfeit his naturalization before the two
years mentioned in the treaty have elapsed. To reach this conclusion,
however, in such a case, would require clearer proof than is generally
748 NATIONALITY. [§ 471.
to be clerivod from silence or from want of a <?eneral statement of in-
tention to return. However this may be, it would appear that any
person applying for a passport may fairly be required- to comply with
such proper regulations as have been adopted by the legation, and to
make such preliminary statements as are demanded in all cases."
Mr. Fish, Sec. of State, to Mr. Davis, luin. to Germany, Nov. 1, 187G, MS.
Inst. Germany, xtl. 240.
"A returned naturalized citizen would be regarded by me during
the period of two years' residence in Germany, his original country, as
standing on the same footing in all respects as a native citizen of this
country visiting Germany, and consequently as receiving the pro-
tective intervention of this Government as if he were a native.
" AMien, however, the residence of a returned naturalized citizen
was continued in Germany beyond the two years, the clause of the
treaty which permits the German Government to treat such residence
as a renunciation of his naturalization in the United States would
take effect upon him. Thereafter this Government would regard pro-
tective intervention in his behalf not as a matter of course, but as re-
quiring special considerations to make it proper to insist upon his
American citizenship notwithstanding his prolonged residence in his
native country had exposed him to the operation of this clause of the
treaty. A mere reading of the clause of the treaty will, I think, show
this distinction to be necessary."
Mr. Evarts, See. of State, to Mr. Luxon, Nov. 21, 1878, 12.'» MS. Dom. Let.
362.
" 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 per-
manently or the absence of all intent to return to the United States."
Mr. Evarts, Sec. of State, to Mr. Williams, of House Committee on For-
eign Relations. Feb. 5, 1879, 1.3 MS. Reiwrt Book, 310.
Under the treaty of P'eb. 22, 1868, " the obligation of this Govern-
ment to protect you, after your return to Germany, will continue only
so long as you retain in good faith an intention to return to the
United States to enjoy the rights, bear the burdens, and perform
the duties of an American citizen. If, as your letter intimates, you
go with the intention of not returning, your exposure to be con-
sidered a German citizen will date from your arrival in Germany."
Mr. Evarts. Sec. of State, to .Mr. Dietz, March 25. 1880, 132 MS. Dom.
Let. 291.
With reference to the question whether, under the Bancroft trea-
ties and similar conventions, a naturalized citizen who, by permanent
§ 471.] RENUNCIATION OF NATURALIZATION. 749
return to the country of his origin, renounces his naturalization, is
held to have resumed his original nationality, the following cor-
respondence may be noted :
A question having arisen in 1884 with regard to the legal status of
the American-born sons of Germans who, after naturalization in
the Uhited States, returned during the minority of such sons to
Germany, bringing their children with them, and established there
a permanent residence, the German foreign office said : " As regards
the fathers of such sons, no doubt can exist that they are to be re-
garded as having renounced their naturalization by a longer sojourn
than one or two years, pursuant to the treaties regulating nationality
of 1868, concluded wath the United States.". With reference to
this statement, Mr. Frelinghuysen, as Secretary of State, said : "" We
think it clear that the treaty can not of itself convert an American
citizen back again to a German, any more than it can make a Ger-
man a citizen of the United States. There are, it is believed, many
persons now in Germany whose sojourn has extended beyond the
term of two years without their being called upon to resuuie Ger-
man allegiance." Replying to this statement, Count Hatzfeldt dis-
claimed, on the part of his Government, " the really untenable as-
sumption " that the naturalization treaties, in providing for the
implied renunciation of naturalizatitm, coidd have " the effect of
restoring at the same time the former nationality.'"' The German
Government was, he declared, rather of opinion that the persons
who fell within the conditions of Article IV. of the naturalization
treaties with the United States were " to be reckoned neither as
American citizens nor as subjects of the Empire, but as individuals
without nationality," who were, however, subject to military duty
under section 11 of the imperial military law of May '1. 1874.
German foreign olfiee to Mr. Kasson. American niin.. Doc. :'.!. 1S84. For.
Rel. 188."», 398; Mr. Frelinglmysen. Set-, of Stato. to .Mr. Kasson.
Fel>. 7, 188.'>, id. ?>m, 400; Count Hatzfeldt to Mr. Coleman. May ItJ,
188.1. id. 417.
With reference to .Mr. Frelinfrlmysen's instruction and Count llatz-
feldt's rei)ly. Mr. Kasson afterwards said: "I calle<l the Secretary's
attention to one of the assunii»tions of that instru<tion wliich I
thought not to be api»licai»le as an objection to the (Jerman argu-
ment. Still, in executing that instruction l>y my connmuHcation to
the foreign office, I felt bound to onut no point in the Department's
views as conununicated to me." (.Mr. Kasson, nun. to (Jermany, to
Mr. Bayard. Sec. of State. May 1!). IHS.'). For. Uel. 188.'). 41G.)
See the ease of David Lemberger. supra. § 39.'?.
" There can be no stronger, no clearer manifestation of intent
against the animus rerertoxJi than a man's own declaration followed
by the establishment of a permanent domicile in the lunv country of
his choice, and the entry iuto business there, and remaining in that
newly chosen country until his death, over twenty-one years later.
750 NATIONALITY. [§^71.
It is also a resumption of his original nationality and native alle-
giance. That is a question in regard to which either the United States
or (Jerniany may insist upon its own view of, as it may be held re-
spectively by either (loveriunent.
" It is not materially essential to the determination of the present
question, but as is stated by Attorney-General Hoar in the case cited
above (Vol. 13, Opinions of Attorneys-General, page 90), is usually
determined by the country, claiming affirmatively, when the man is
found within that jurisdiction."
Mr. Frelinghuysen, See. of State, to Mr. Kasson, iiiln. to Germany, Janu-
ary 15, 1885, For. Rel. 1885, 396, 398.
Henr}' Joseph Revermann, a native of Germany, emigrated to the
United States in 1850. He was naturalized in 1856 in Illinois, and
continued to reside there till 1871, when he returned to Germany,
taking with him a passport for himself and his family as American
citizens. Among his family was a son named Ferdinand, who was
born in Illinois in 1860, four years after his father's naturalization.
After their return to Gernuiny the Revermanns settled at Miinster,
in AVestphalia, where Ferdinand's name was placed on the military
rolls. In 1880 his name was stricken from the rolls on the ground
that he was born a citizen of the United States. In October, 1884,
however, he was informed that by order of the Royal Government
at Miinster he must either become naturalized in Germany or leave
the country. He remonstrated against this action, but the authori-
ties declined to modify the order. He then appealed to the legation
of the United States at Berlin, and on October 31, 1884, Mr. Kasson,
then American minister, requested a suspension of action till an in-
vestigation might be made. In reply to Mr. Kasson, Dr. Busch, of
the German foreign office, stated in a note of December 31, 1884,
that investigation had shown that the statements made in respect to
Revermann were correct, and that the circumstances were similar
to those in the cases of George Weigand (Wiegand) and the broth-
ers Oppenheimer, which were presented in the notes of July 6 and
November 8, 1881. Prompted by those cases, the Government had,
said Dr. Busch, made a close examination of the legal status " of the
sons of those Germans who, as naturalized citizens of the United
States of America, had during the minority of their sons, born in
America, returned in their company to Germany to reside there per-
manently." As to the fathers, declared Dr. Busch, there could be
no doubt that they were to be regarded as having renounced their
naturalization " by a longer sojourn than one or two years, pur-
suant to the treaties regulating nationality of 1868, concluded with
the United States; " but the German Government had no hesitation
in recognizing the sons as American citizens. As such, they could
§471.] EENUNCIATION OF NATURALIZATION. 751
not be made to perform military service in (iermany, but interna-,
tional principles, said Dr. Busch, permitted the refusal to them of
a right to sojourn in Germany. The position of the German Govern-
ment was combated by Mr. Frelinghuysen in an instruction to Mr.
Kasson of February 7, 1885, the substance of which was connnuni-
cated by Mr. Kasson to the German foreign office on February 25.
An extended answer Avas made by Count Hatzfeldt on May IG, 1885,
reaffirming the views expressed by Dr. Busch.
See Mr. Kasson, iiiin. to (Jerniany, to Mr. Frolinfjjliuysoii, Sec of State,
Jan. G, 3885, For. Rel. 1885, 892; INIr. Frolinjjjhu.vsou to Mr. Kasson,
Feb. 7, 1885, id. 399; Count Hatzfeldt to Mr. Coleman. .May 1(5, 1885,
id. 417; Mr. Kasson to Mr. Bayard. May 19. 1885. id. 41(V418.
The correspondence here cited is printed with nuuh fullness, supra, § 393.
For a summary of Revermann's case, see For. Rel. 1885, 430-431.
With reference to the case of a native of Wiirtemberg who, after
being naturalized in the United States, returned to his native country,
apparently with no intention permanently to remain there. Mr. Fre-
linghuysen observed that the treaties, in providing that an intent not
to go back to the country of adoption might be held to exist after a
two years' residence in the country of origin, did not of themselves
" work forfeiture of citizenship," but that in such a case " some
affirmative governmental act was necessary to show " that the person
'' had, through residence in Germany, without intent to return here,
forfeited his naturalization." With reference to this statement, Mr.
Kasson, to whom it was addressed, observed : " If the ai)parent fact
of a residence resumed in his native country without intention to re-
turn to the United States was true, the period of two years was (juite
eliminated from consideration. For the renunciation in ciuestion was
effected at the time, however early, when he renewed his residence in
(iermany without that intent to return to the United States. . . .
the two-years clause reads 'may be held; " this paragraph [Art. IV.
of the treaty of 18G8 with the North German Union, which providers
that, if the naturalized citizen ' renews his residence in North (Jer-
niany, without the intent to return to America, he shall be held to have
renounced his naturalization in the United States'] reads 'shall be
held; ' the one grants an option, the other imposes an obligation. A
similar distinction exists in the (ierman text of the treaty. As the
facts not denied showed a renewed German residence without any
intent to return to the United States by the father, before the birtli
of the son, it seemed obligatory to conclude that American citizeuship
ceased, whether or not (Jernum citizenship was regained.""
Mr. Frelinghuysen. Sec. of State, to Mr. Kasson, min. to (Jormany. .Tan.
15, 1885, For. liel. 1885, 390; Mr. Kasson to Mr. Frelinghuysen. Feb.
14, 1885, id. 401.
752 NATIONALITY. [§471.
In a report of March 20, 1885, Dr. Francis Wharton, law officer of
the Department of State, maintained that, under Article IV. of the
naturalization treaty of 1868 with the Nortli German Union, a resi-
dence of more than two years of a naturalized person in the country
of his origin creates onl}' a rebuttable presumption of an intention to
abandon or renounce the acquired citizenship. This report was in-
closed by Mr. Bayard, Secretary of State, to Mr. Pendleton, minister
to Germany, December 18, 1885, For. Rel. 1885, 438.
" In this case, as in Wedemeyer's and several others of recent occur-
rence, the Department is indisposed to intervene. Generally speak-
ing, when a German, naturalized in the United States and returning
to Germany, voluntarily applies to be reinstated in his German sub-
jection, and only appeals to the legation for protection as an Ameri-
can citizen when the native authorities decline to readmit him as a
German, the evidence of his devotion to the United States is not
strong. It would in such cases be as reasonable for us to intervene to
demand that Germany take back the applicant as to demand that he
may indefinitely reside in Germany under the thin guise of a citizen-
ship he sets no store by and has attempted to renounce."
Mr. Porter, Acting Sec. of State, to Mr. Pendleton, Feb. 2, 1886, MS. Inst
Germany, XVII. 594.
W., wdio Avas born in Prussia, claimed citizenship of the United
States through the American citizenship of his father. It appeared
that Ws father was naturalized in New^ York in 1885, but that in
1856 he returned to Germany, his native land, w'here W. was bom in
1862. Ws father died in Germany in 1883. In 1880 W., being 18
years of age and subject to military duty, came to the United States,
whereupon he was proclaimed a deserter. April 30, 1895, the am-
bassador of the United States Avas instructed to seek permission for
W. to visit Germany. The German Government refused on the
ground that W. was a Prussian subject, maintaining that his father
had prior to his birth, by his return to and continued residence in
Germany, lost his American nationality. The Department of State
held that this contention was warranted, saying: "The Department
has done all that it properly could in your behalf. In reply to your
inquiry as to what you shall do to establish your American citizen-
ship on a firm basis, the Department is of opinion that your best
course would be to apply to a competent court for naturalization in
due form."
Mr. Olney, Sec. of State, to Mr. Wilzing, September 28, 1895, 205 MS.
Dom. Let. 119.
§471.] RENUNCIATION OF NATURALIZATION, 753
Where it was suggested that a person who intended to return to
Prussia, with his family, " to stay for several years and perhaps per-
manently," might conserve the American citizenship of himself and
his minor sons, in spite of Art. IV. of the treaty of 18G8, '• by return-
ing to the United States every two years to get a new passport and to
go back to Germany," the Department of State declared that the plan
was '' impracticable, for the reason t*liat this Department would not
issue to you a passport under such circumstances ; " that such a
course, if successfully accomplished, would enable a person to evade
the duties and obligations of citizenship in both countries; and that
the state was " entitled to expect and demand something in exchange
for its protection."
Mr. Olney, Sec. of State, to Mr. Materne, May 29, 189G, 210 MS. Doui. Let.
406.
" Under the statute to confer American citizenship upon the [for-
eign-born] child the father must be a citizen of the United States at
the time of the birth of the child. If the father has become a citizen
of a foreign power or if he has abandoned his citizenship in the
United States before the birth of the child, the latter can make no
claim to citizenship. ' If born after the father has in any way expa-
triated himself the children born abroad are to all intents and pur-
poses aliens, and not entitled to protection from the United States.'
(Mr. Fish to the President, August 25, 1873 ; Foreign Relations, 1878,
Part II., p. 1191.)
" Without regard to the treaty, it is the duty of this Government to
decide whether young Rosenheim is entitled to a passport. In doing
this, it must necessarily pass upon the citizenship of the father, as the
son can claim citizenship only through the father,
" You do not claim that Rosenheim, the father, had reacquired
Bavarian citizenship, but that he had, by his acts, renounced his
naturalization in the United States, and that all rights and privileges
acquired thereunder were surrendered. It seems to me, in view of the
father's departure from the United States a few months after his
naturalization, his return to Bavaria and his establishment of a per-
manent domicil there as a retired gentleman (it has now been nearly
thirty years since his return) that the conclusion is irresistible that
ho had abandoned his citizenship in the United States at the time of
the birth of the son. This being so, tlien the son has no chiim to
American citizenship and is not entitled to a passport."
Mr. Olnoy. See. of State, to Mr. I'lil, ambassador to Germany, Oct. 10,
189«), For. Uel. 1890, 220.
It appeared tliat Kosenheim, the elder, a native of Bavaria, eiui^rratcd to
the United States about lvS49 and residtnl there till 1S07, when, within
six months after his naturalization, he returned to Bavaria, where
H. Doc. 551— vol :\ 48
754 NATIONALITY. [§ 471.
he had over since resided. The son was lM>rn in Bavaria, June 7,
1878, and had never l)een in the United States. He desired a pass-
IK)rt to visit Holland.
'• I liave to inform you that your dispatch No. 106, of the 1st
instant, stating that Mr. P^rnst P'riedrich Bhnnenthal, who became
naturalized as an American citiaen in the United States court for the
western district of Pennsylvania on the 5th of January, 1898, re-
cently called on Mr. Johnson, the United States consul at Stuttgart,
exhibited his naturalization certificate and surrendered his passports,
and then told the consul that he intended remaining permanently in
Germany and renouncing his American citizenship, has been received.
" In view of the statement made by Mr. Blumenthal, and of the fact
that he voluntarily gave up his passports, the Department approves
of Mr. Johnson's course in receiving them, and the}' have accord-
ingly been placed on file here with your dispatch.
" It may be observed, however, that Mr. Blumenthal's statement
and the surrender of his passports do not necessarily reinvest him
with German nationality, but merely evidence his renunciation of
his naturalization in the United States, according to Article TV. of
the convention of 1868 with North Germany. AMiether Germany
will readmit him to citizenship is another thing.
•' In a general way, if it should appear that a naturalized American
citizen, by any voluntary act recognized or prescribed by German
law, has resumed his German allegiance or been readmitted to Ger-
man nationality, the surrender of the passport of such a person may
properly be demanded."
Mr. Olney, Sec. of State, to Mr. Uhl, ambassador to Germany, Dec. 21,
1896, For. Rel. 189G, 221.
'the " presumption " that a naturalized citizen of the United States
of German origin intends " to take up his permanent residence in
Germany and to renounce his American naturalization . . . can
only be entertained after two years' residence in Germany. Earlier
than that, renunciation of acquired status requires some positive act
of resumption."
Mr. Hay, Sec. of State, to Mr. Jackson, charge at Berlin, No. 012, July 25,
1890, MS. Inst. Germany, XXI. CA.
If a naturalized citizen, who, on his return to Germany, is put into tlie
army, does not protest on the ground of his American citizenship, the
burden of proof is on him to show that he did not intend to renounce
his naturalization. (Ibid.)
§472.] RENUNCIATION OF NATURALIZATION. 755
3. Treaty with Ecuador.
§472.
B}' Art. II. of the naturalization treaty l)etween the TTnited States
and Ecuador of May G, 1872, " If a naturalized citizen of either
country shall renew his residence in that where he was born, without
an intention of returning to that where he was naturalized, he, shall
be held to have reassuuied the obligations of his original citizenship,
and to have renounced that which he had obtained by naturaliza-
tion; " and by Art. III. it is provided : ''A residence of more than two
3^ears in the native country of a naturalized citizen, shall be construed
as an intention on his part to stay there Avithout returning to that
where he was naturalized. This presumption, however, nuiy be re-
butted by evidence to the contrary."
The effect of these articles was discussed in the case of Julio
Romano Santos, a naturalized citizen of the ITnited States, of Ecua-
dorian origin, who was arrested and imprisoned in Ecuador, in 1884,
on a charge of implication in a revolutionary movement by General
Alfaro, Ecuador claimed that he had resumed his original citizen-
ship, while the United States maintained the contrary.
In the course of the discussion, Mr. Bayard, May 1, 18S5, said :
" It is the part of the sovereignty of every nation to prescribe the
terms on which the allegiance of its own citizens sluill be acquired
and preserved. In the treaty with Ecuador the United States waive
a part of such right of decision by admitting that two years' resi-
dence in Ecuador nuiy create a presumption that their citizen intends
to remain there. By stipulating for the right of rebuttal evidence on
this point of intention, the United States wholly and absolutely
regain that right of deciding as to the status of their citizens in a
given case. That right is not transferred in any i)art to Ecuador: it
is to l)e exercised exclusively by the United States as an attribute of
their sovereignty. And Ecuador can not meet that reserved right
by any mere denial of the sufficiency of the rebutting evidence whicli
may be satisfactory to the United States. The only lu-ivilege of
surrebuttal which might remain open to Ecuador would be to show-
that the party had done some act working an overt, voluntary, and
positive renunciation of his ITnited States citizenshij) of which the
laws of Ecuador take cognizance or which they may prescribe as a
condition to the acquisition or recovei'v of Ecuadorian citizenship.
In other words, no surrebuttal is admissible as to intent, but nnist
rest on the full ascertainment of legal fact."
The Government of Ecuador did not admit this construction of the
treaty. On the contrary, it nuiintained its right to ])articipate in the
decision of the question of Mr. Santos' intent with respect to his resi-
756 NATIONALITY. [§ 472.
dence in Ecuador, Mr. Flores, Ecuadorian minister at Washington,
in a note of Aug. 0, 1885, saying :
" My Government has thought that in the matter of a treaty to
which Ecuador was a party, any doubt concerning its interjiretation
ought to be settled by connnon accord, and that if this were impossi-
ble, the honorable example set by the United States themselves ought
to be. followed, namely, of submitting the disputed points to arbi-
tration."
This position the United States eventually accepted. By a con-
vention concluded at Quito, February 28, 1893, it was agreed to sub-
mit the case to arbitration, and it was expressly stipulated that the
decision of the arbitrator should cover the following points :
"(«) Whether, according to the evidence adduced, Julio R. Santos,
by his return to and residence in Ecuador, did or did not, under the
provisions of the treaty of naturalization between the two govern-
ments, concluded May 6, 1872, forfeit his United States citizenship
as to Ecuador, and resume the obligations of the latter country.
"(&) If he did not so forfeit his United States citizenship, whether
or not it was shown by the evidence adduced, that Julio R. Santos has
been guilty of such acts of unfriendliness and hostility to the Govern-
ment of Ecuador, as, under the law of nationsj deprived him of the
consideration and protection due a neutral citizen of a friendly
nation."
These questions were not in the end decided. Cases were prepared,
and the arbitrator was appointed; but. General Alfaro having at
length become President of Ecuador, he agreed to pay the claimant a
certain sum, which was, with the concurrence of the United States,
embodied by the arbitrator in a purely formal award, the litigious
part of the proceedings being thus dispensed Avith.
For a fuller account of this case, and a summary of the evidence con-
cerning Mr. Santos' citizenship, see Mooi*e, Int. Arbitrations, II.
1584 et seq.
For the correspondence between Mr. Bayard and Mi*. Flores, above cited,
see Mr. Bayard, Sec. of State, to Mr. Beach, consul at Guayaquil, May
1, 1885 ; Mr. Flores, Ecuadorian niin.. to Mr. Bayard, Sec. of State,
Aug. 6, 1885 : H. Ex. Doc. 361, 40 Cong. 1 sess. 30, 07.
In 1800, the Ecuadorian Government proposed to amend Art. III.
of the treaty of 1872, by providing that a four years' residence in
Ecuador, or the making of investments there " in long operations of
farming or other business requiring a long time for development," by
an Ecuadorian who had been naturalized in the United States, should
be conclusive evidence of resumption of Ecuadorian nationality. The
United States, while expressing its sympathy Avith the object of the
proposal, which was understood to be the prevention of the abuse
of the privilege of uaturalization, declined to accept it, on the ground
§§473,474.] LOSS of right to peotection. 757
that " in treating a subject which, like that of citizenship, may in-
volve questions of intention that must often be determined upon the
most ample consideration of facts, it is a hazardous undertaking to
attempt to formulate inflexible rules for the determination of all
cases, whatever may be their circumstances."
Mr. Blaine, Sec. of State, to Mr. ('aainano, May 10, ISiK), MS. Notes to
Ecuador, I. 140.
4. Treaty with Denmark.
§ 473.
The Danish Government ordered the name of F. A. Sundberg, a
naturalized citizen of the United States of Danish origin, who had
been living in Copenhagen for four years as a cutter in a tailoring
establishment, but who alleged that his stay in Denmark had been
protracted beyond hi« original intentions by considerations of family
and of health, to be stricken from the military rolls, '' in accordance
with article 3 of the convention concluded . . . July 20, 1872,''
there being an " absence of sufficient reason for sujiposing '' that he
had " abandoned his intention to return to America."
Mr. Krag, min. of for. aff., to Mr. Sweiison, U. S. iiiiu.. May 21, IfXH),
For. Rel. 1900, 424.
See Mr. Frelinghuysen, See. of State, to Mr. Fish, min. to Relg., No. .'?.">,
April 2,3, 1883, MS. Inst. Relg. III. :^2H.
XV. LOSS OF RIGHT TO NATIONAL PROTECTION.
1. Foreign Domicii-.
(1) native citizens.
§ 474.
" The American citizen who goes into a foreign country, although
he owes local and temporary allegiance to that country, is yet, if lie
performs no other act changing his condition, entitled to the jjrotec-
tion of his own government; and if, Avithout the violation of any
municipal law, he should be opi)ressed unjustly, he would have a
right to claim that protection, and the interposition of the Americiui
government in his favor would be considered as a justifiable inter-
position. But his situation is completely changed, where by his own
net he has made himself the subject of a foreign j)0\ver. Although
this act may not be sufficient to rescue him from punishment for any
crime committed against the ITnited States, a ])oint not intended to
be decided, yet it certainly places him out of the protecti^on of the
United States while within the territory of the sovereign tu whom
758 NATIONALITY. [§ 474.
he has sworn allegiance, and, consequently, takes him out of the
description of the act."
Marshall. C. J., hi Murraj- r. Si'hoonor Charming Betsy, 2 Cranch, 120.
See the Santissluia Trinidad, 1 Brock. 478.
A claim to American citizenshij) will not be decided by the Depart-
ment of State on the e.c parte application of the government against
which the person, whose citizenship is in question, invokes the pro-
tection of the United States.
Mr. Bayard, Sec. of State, to Mr. de Bounder de Melsbroeck, Belgian mln.,
April 11, 1887, For. Rel. 1887, 42.
This note related to the case of Eniile Dewaele, who was born in Belgium
in 18(57 and who, in order to avoid conscription, invoked the naturali-
zation of his father, Charles Dewaele, in 1880 in the Uniteil States.
The Belgian Government desired to ascertain whether the father,
whose certificate of natui'alization was tliought not to be pro|>erly
certified, was " really a citizen of the United States," and whether
the effects of naturalization were extended to children (1) when
they lived with their father in the United States, and (2) when
they resided abroad. (For. Rel. 1887, 41.)
" I have duly received your note of the 5th instant with the accom-
panying papers relative to the case of Elijah C. Woodman, who it
appears emigrated to Canada, in 1832, was»concerned in the revolu-
tionary movement in 1838, and was subsequently for that offence
transported to Van Diemans Land, where he is still a prisoner.
"This Department has from time to time forwarded, through our
minister at London, particular applications, addressed to Her Bri-
tannic Majesty, in behalf of American citizens, undergoing sentence
of transportation in the British penal colonies, but as Woodman had
resided for several years within British jurisdiction, creating a pre-
sumption that he was no longer a citizen of the United States, his
case is not deemed one in which this Department could properly inter-
fere. If an assurance can be given me that he did not renounce his
citizenship after taking up his residence in Canada, and his friends
will address a petition to Her Britannic Majesty praying for his
pardon, I will cause it to be presented to the British Government by
our minister in England. The papers enclosed with your note are
herewith returned."
Mr. Calhoun. Sec. of State, to Mr. Fairfield, U. S. S. Dec. 9, \Mi, ^ MS.
Doni. Let. 40.
" You inform us that many American citizens have gone to settle in
the [SandAvich] islands; if so they have ceased to be American citi-
zens. The Government of the United States must, of course, feel
an interest in them not extended to foreigners, but by the law of
nations they have no right further to demand the protection of this
§ 474.] LOSS OF RIGHT TO PROTECTION. 759
Government. ^^Hiatever aid or protection might under any circum-
stances be given them must be given, not as a matter of right on
their part, but in consistency with the general policy and duty of the
Government and its relations with friendly powers.
" You will therefore not encourage in them, nor indeed in any
others, any idea or expectation that the islands will become annexed
to the United States. All this, I repeat, will be judged of hereafter,
as circumstances and events may require, by the Government at
Washington."
Mr. Webster, Sec. of State, to Mr. Severance, July 14, 1851, H. Ex. Doc.
48, 53 Cong. 2 sess. 342, 343.
The presumption of abandonment of nationality by long residence
abroad is rebutted by proof that such residence was that of a mis-
sionary who neither intended to relinquish his nationality nor aban-
doned the intention of coming home.
Mr. Everett, Sec. of State, to Mr. Marsh, Feb. 5, 1853, S. Ex. Doc. 9, .^3
Cong. 2 sess. 5, t). See, also. Mr. Webster, Sec. of State, to Mr.
Marsh, April 29, 1852, id. 2, 3-4.
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 this Government."
Mr. Marcy, Sec. of State, to Mr. Kinney, Feb. 4, 1855, 43 MS. Dom. Let.
362; cited in Mr. Bayard. Sec. of State, to Mr. Ilanna, Xo. 22. .June
25, 1880, MS. Inst. Arg. Rep. XVI. 385.
See, however, the decisions of international commissions, Moore. Int.
Arbitrations. III. 2657-2(>78 ; and particularly the able and learn<»d
argument of Mr. Ashton, id. 2()9(j-27(><).
" Though there is no law forbidding a citizen of this country who
goes abroad with an intention to settle, to resume liis rights as a citi-
zen on his return, how long soever he may have been absent, while he
is^ under the jurisdiction of the foreign Government, for the purpose
of carrying on business, and especially as in this case, for engaging
in mining operations, he must be j)resumed to have been satisfied with
the ability and disposition of such (lovernment to protect his prop-
erty and his person.
" It is essential to the independence of nations, and to the public
peace, that there should be some limit to the right and duty of a (iov-
ernment to interfere in behalf of persons born or naturalized within
its jurisdiction, who, on proceeding to a foreign country, and l)eing
domiciliated there, may receive injuries from the authorities thereof.
By the general law, as well as by the decisions of tlie most eidiglitened
judges both in P^ngland and in this country, a neutral engaged in
760 NATIONALITY. [§ 474.
business in an enemy's country during war, is regarded as a citizen or
subject of that country, and liis property, captured on the high seas,
is liable to condemnation as lawful prize. No sufficient reason is
perceived why the same rule should not hold gt)od in time of peace,
also, as to the protection due to the property and persons of citizens
or subjects of a country domiciled abroad."
Mr. Marcy, Sec. of State, to Mr. Clay, inin. to Peru, May 24, 1855, MS.
Inst. Peru, XV. ].")9.
" Citizens of the United States, who, retaining their domiciles in'
the United States, are temporarily traveling or sojourning in New
Granada, are to be regarded as entitled to the protection of their own
Government against any impositions of the Government there for its
support and maintenance. But citizens of the United States, no
matter how they acquired that title, who have gone to New Granada,
become domiciliated there, and are pursuing business or otherwise
living there, without definite and manifest intentions of returning
to this country, are subject to all the laws of New Granada alTecting
property or material rights exactly the same as the citizens of New
Granada. . . .
" The principle upon which this decision rests is that protection
and allegiance are recijirocal ; that the citizen of the United States
who becomes domiciliated in another country, contributing his labor,
talents, or wealth, to the support of society there, becomes practically
a member of the political state existing there, and for the time with-
draws himself from the duties of citizenship here, and consents to
waive the reciprocal right of protection from his own Government."
Mr. Seward, Sec. of State, to Mr. Burton, luin. to Colombia. Jan. 10, 1862,
MS. Inst. Colombia, XVI. 20.
It should be observed that this instruction was given in response to an
inquiry whether citizens of the United States, domiciled in Colombia,
could " claim exemptions from the laws and degrees of that country
for levying taxes and c*ontributions obligatory upon its own citizens.."
In the course of the instruction, Mr. Seward said : " For obvious
reasons, I limit this statement [made in the first paragraph, supra,]
to the exact case you have presented, without incjuiring how the cfti-
zen of the United States thus circumstanced may recover and resume
his plenai'y rights, and without inquiring how far such citizens so
domiciliated in New Granada retain the right to the protection of this
Government in regard to their personal liberty, if it should be in-
vaded."
See the decision of Commander Bertinatti, umpire, Dec. 31, 1862, Moore,
Int. Arbitrations, III. 2695.
" This Government owes to no citizen who has voluntarily with-
drawn his person and property from the country, any obligation to
lend him its political powers to influence in his favor the adjudication
of the courts of justice of the country in which he proposes to reside.
§ 474.] LOSS OP RIGHT TO PROTECTION. 761
in the trial of questions Arising upon contracts made under the laws
of that country."
Mr. Seward, Sec. of State, to Mr. Burton, miii. to Colombia, No. 48, Jan.
30, 1863, MS. Inst. Colombia, XVI. GO.
Two persons, named Albee and Gordon, claimed the interposition
of the American representatives in the Argentine Eepublic, in order
to escape arrest for refusing to perform military service in 18GG.
It appeared that they left the United States '" some years ago,"
with " no fixed intention of returning," and had *' ever since made
the Argentine Republic the place of their business and residence."
In 18G6, during a rebellious rising, the public authorities in certain
parts of the Republic ordered the enrolment of the national guard,
and, martial law having been j)roclaimed, arrested various persons
suspected of hostile intentions, as Avell as others who refused to re-
spond and enrol their names in the guard. Mr. Seward stated that
citizens of the United States '' who have become and are remaining
domiciled in foreign countries could not be exempt from certain
common obligations of citizens of those countries to pay taxes and
perform duties imposed for the preservation of public order and the
maintenance of the government;" but that the treaty between the
United States and the Argentine Republic exempted citizens of the
one country from the performance of all compulsory military service
and from the payment of all forced loans, requisitions, and military
exactions in the other. If Messrs. Albee and Gordon should com-
plain that their rights were directly invaded or menaced by the exac-
tion of military service or of w^ar contributions, the minister of the
United States was instructed that it would be his duty '* to ascer-
tain not only the justice of the complaint, but also the fact of the
citizenship of the complainant," and then to address himself to the
Government " requiring the performance of the treaty stipulation."
Mr. Seward, Sec. of State, to Mr. Asliotb, No. 27, March 27, I8G7. MS.
Inst. Argentine Kepub. XV. 275.
Citizens of the United States who were concerned in the insurrec-
tion of 1801 against the United States, and who, after its close,
decline to return to their allegiance, and go into the service of a
foreign country, are not entitled to the interposition of the Govern-
ment of the United States for redress for injuries inflicted on them
in such foreign country.
Mr. Seward, Sec. of State, to Mr. Sullivan. Feb. 4, 18t!0. MS. Inst.
Colombia, XVI. .*M5.
" You declare that you have been thirty-five years absent from
this country and residing in Ilayti. You do uot indicate that you
ever had or now have an intention of returning to the United States.
762 NATIONALITY. [§474.
Although it may be that you have not by any formal act of naturali-
zation renounced your allegiance to the United States, a residence
of so long continuance in Ilayti raises a strong presumption that you
have incorporated yourself into the pernument population of the
island and ceased to regard yourself as subject to the duties of a
citizen. Tt will Ini regarded as quite material in respect to your
national character to know whether you have complied with the
provisions of the acts of Congress passed in 1862 and subsequent
3'ears imposing an income tax upon citizens residing abroad. This
Department will therefore be glad to be informed in what Congres-
sional District or Districts you have made the returns required by
those acts. In the absence of any further information, I shall not
feel at liberty to address any instructions to Mr. Bassett in relation
to your case."
Mr. Fish, Sec. of State, to Mr. Hepburn. Dec. 21, 1870, 87 MS. Dom.
Let. 312.
See, to the same effect, in the case of a native of the United States, born
In 1800, who emigrated to Haytl In 1824 and had lived there HO
years, and still lived there, Mr. Fish, Sec. of State, to Mr. Allen,
Jan. 18, 1871, 88 MS. Dom. Let. 19.
The same thing was said by Mr. Fish in the case of Juan A. Robinson,
who had resided in Mexico 38 years, during which he suffered the
losses complained of, but who seemed to have returned to the United
States at the time of presenting the claim in question. (Mr. Fish,
Sec. of State, to Mr. Niles, Oct. 30, 1871, 91 MS. Dom. Let. 211.)
Mr. Robinson appeared as a citizen of the United States before Inter-
national Commissions. (Moore, Int. Arbitrations. III. .30.38; IV.
3410.)
To the same effect as the letter to Mr. Hepburn, see Mr. Fish. Sec. of
State, to Mr. Wilson, Dec. 5, 1870, 87 MS. Dom. Let. 189; to Mr.
Brauno, Dec. 7, 1870, id. 198; to Mr. Overmauu, .Tan. 1.3, 1871, Id. 5GG.
" Citizenship involves duties and obligations, as well as rights.
The correlative right of protection by the Government may be w\aived
or lost by long-continued avoidance and silent withdrawal from the
performance of the duties of citizenship as well as by open renun-
ciation."
Mr. Fish, Sec. of State, to Mr. Niles. Oct. 30, 1871, 91 MS. Dom. Let. 211.
To same effect, see Mr. Fish, Sec. of State, to Mr. Colfax, March 12,
1872, 93 MS. Dom. Let. 113 ; to Mr. Howard, April 23, 1872, 93 :MS.
Dom. Let. 544; Mr. Fish, Sec. of State, to Mr. Beardsley, April 28,
1873, :ms. Inst. Barbary Powers, XVI. 13G.
In 1873 the legation of the United States at Paris requested instruc-
tions as to the case of a man and his wife, Americans by birth, w'ho
had settled in Paris forty years before and had lived there ever since.
" This has," said the legation, " become their permanent home, and
the}^ have never had any intention of returning to the United States.
§474.] LOSS OF RIGHT TO PROTECTION. 763
Several of their children have been born here, and have never been
to the United States, and never expect to go, and never want to go."
The Department of State replied : " If the citizen, on the one side,
has rights which he may claim at the hands of the Government, on
the other side there are imijerative duties which he should perform
tow^ard that Government. If, on the one hand, the Government
assumes the duty of protecting his rights and his privileges, on the
other hand the citizen is supposed to be ev'er ready to phice his fortune
and even his life at its service, should the public necessities demand
such a sacrifice. If, instead of doing this, he permanently with-
draws his person from the national jurisdiction, if he places liis
property where it can not be made to contribute to the national
necessities; if his children are born and reared upon a foreign soil,
with no purpose of returning to submit to the jurisdiction of the
United States, then, in accordance with the principles laid down by
Chief Justice Marshall, and recognized in the fourteenth ameud-
ment, and in the act of 1808, he has so far expatriate<l himself as to
relieve this Government from the obligation of interference for his
protection."
Mr. Fish, Sec. of State, to Mr. Washburne, min, to Franco, Juno 28, 1873,
For. Rel. 1873, I. 25G, 259. The statement of t'liief .Justice Marsliall
referred to in the foregoing passage is tliat whidi is quoted at tlie
beginning of the present section.
" The right to be acknowledged as a citizen of the United States
must be held as a high privilege and a precious right. When the
person who possesses it is untainted by crime, or by the susi)ici()n of
expatriation, or by the non-fulfillment of the duties which accompany
it, it entitles him abroad to the recognition and protection of a power
which is not the least among the i)owers of tlie earth, while at home,
under general regulations of law, he may participate in the distribu-
tion of political rights and privileges, he may enjoy the national guar-
antees of liberty and of protection to personal i)r()i)erty, and he may
share the advantages of education and the healthful social and moral
influences which result from democratic institutions.''
Mr. Fish, Sec. of State, to Mr. Waslilmrne. min. to France. .Tune 28. 187.3.
For. Kel. 1873, I. 2r.(;, 2.^8.
"This Department would not assume to decide that ... a contin-
uous residence in a foreign country of two ov even of many years
should of itself work an expatriation. Expatriation is a fact to l)e
established, like any other fact, by external evidence, and such contin-
uous residence, even for a lifetime, is capable of being explained on
other theories than that of a voluntary denationalization. Uut when
the fact ia once established, by whatever proof, it would, in the
764 NATIONALITY. [§ 474.
opinion of this Dopartment, o|K>rate to ])lace the expatriated person
outside the number of those who can chiini the protection of this (lov-
ernment as a right.
" The duty of protection as toward the citizen, or the right of its ex-
ercise as toward the foreign power, is not always correlative with the
fact of citizenship. Thus it was demonstrated by my predecessor,
Mr. Marcy, that an extreme case may arise in which a government
W'ill be justified in taking upon itself the protection of persons who
are not citizens. On the other hand, it is apjmrent that there may be
instances of claims to citizenship which is nominal only, if it have any
existence, as where the duties of citizenship have never been j^er-
formed, where the person of the individual has never been within the
national jurisdiction, or is voluntarily removed from it, and purposely
kept beyond it; where his movable wealth is purj)osely placed where
it may never contribute to the national necessities, and his income is
expended for the benefit of a foreign government, and his accumula-
tions go to swell its taxable wealth; and where from all the sur-
rounding circumstances it must be assumed that he has abandoned the
United States, and never intends to return to it.
" It can not be contended that a person with so faint an exercise of
the duties of citizenship is entitled to claim the protection of this
Government as a right.
" Each case as it arises must be decided on its own merits. In each
the main fact to be determined will be this, has there been such a prac-
tical expatriation as removes the individual from the jurisdiction of
the United States?
" If there has not been the applicant will be entitled to protection."
Mr. Fish, Sec. of State, to Mr. Washburue, ruin, to France, June 28, 1873,
For. Rel. 1873, I. 256, 259.
" I invite the earnest attention of Congress to the existing laws of
the United States respecting expatriation and the election of nation-
ality by individuals. Many citizens of the United States reside per-
manently abroad with their families. Under the provisions of the
act approved February 10, 1855, the children of such persons are to be
deemed and taken to be citizens of the United States, but the rights
of citizenship are not to descend to persons whose fathers never re-
sided in the United States.
" It thus happens that persons who have never resided within the
United States have been enabled to put forward a pretension to the
protection of the United States against the claim to military service
of the government imder whose protection they were born and have
been reared. In some cases even naturalized citizens of the United
States have returned to the land of their birth, with intent to remain
there, and their children, the issue of a marriage contracted there
§ 474.] LOSS OF RIGHT TO PROTECTION. 765
after their return, and who have never been in the United States, have
laid claim to our protection, when the lapse of many years had im-
posed upon them the duty of military service to the only government
which had ever known them personally."
President Grant, annual message, Dec. 1, 1873, For. Rel. 1873, I. vi.
" It is confessedly a rule of jjublic law, consonant with the policy
of this Government, that, if a citizen leaves his country without a
purpose to return, he forfeits the right to claim the protection of the
Government to which he previously owed allegiance. Tliis Depart-
ment has on several occasions held that the intent totally to abandon
his native country might so far be justly inferred from the purchase
or cultivation of land abroad as to make it at most discretionary with
this Government to interfere for the redress of grievances which the
emigrant might incur in the country of his adoption."
Mr. Fish, Sec. of State, to Mr. Williamson, niin. to Costa Rica, No. 158,
March 16, 1875, MS. Inst. Costa Rica, XVII. 236.
" I have to acknowledge the receipt of your communication of Au-
gust 15, in relation to the complaint of Mrs. James Morris against the
Government of Hayti, for alleged wrongful imprisonment of her
husband and deprivation of property during the revolutionary dis-
turbances of 1883-84. ... It appears from your letters of June
7 and 10 last, that James Morris left the United States a great many
years prior to his decease; that he became domiciled in Hayti, engaged
in business there, married and identified himself with that country,
where he remained until his death, by no act manifesting any inten-
tion ever to return to the United States. After his decease his wife,
who was by birth a subject of Great Britain, returned to the home of
her father in British territory, where she now resides. In view of
the above, the Department is of opinion that it would not be war-
ranted in intervening in her behalf."
Mr. Gresham, Sec. of State, to Mr. Smith, Sept. 1, 1893, 193 MS. Dom.
Let. 303.
B. was born in New York in 1855. In 18G2 he left the United
States, and he subsequently took up his permanent residence in Edin-
burgh, Scotland, where he resided without any intention of returning
to the United States to reside and perform the duties of citizenshij).
The embassy of the United States in London having refused in 181)5
to issue him a passport, he appealed to the Department of State,
w hich said : " Your absence from the United States for a i^eriod of
33 years, coupled with your statement that you ])ermanently reside
abroad and do not intend to come to the United States and make
your residence here, clearly indicates that you have abandoned your
766 NATIONALITY. [§475.
riglit to American protection. The embassy very properly declined
to give you a passport."
Mr. Olney, Secretary of State, to Mr. Bandit, June 21, 1895, 203 MS.
Doni. Let. 2.
(2) NATURALIZED CITIZENS.
§ 475.
In the case of Luis Yager, who asserted a claim as a citizen of the
United States for the appropriation of his property by the military
agents of Paraguay, Mr. Seward said:
" The Department desires to be assured of Mr. Yager's right to
invoke the protection of this Government. So man}' persons are
found to have obtained naturalization without any real design of
permanent residence in the United States, but for the purpose of
availing themselves of the advantages of citizenship while evading
its responsibilities and duties by continual residence in a foreign
country, that it has become necessary to enquire, especially in the
South American states, how far the person claiming to be one of our
citizens is to be regarded as having assumed and maintained that
character in good faith. The period during which he resided in
this country, and abroad, respectively, and the manner in which he
deported himself during the recent rebellion are proper elements in
the determination."
Mv. Seward, Sec. of State, to Mr. Washburn, luin. to Paraguay, Nov. 27,
1<S(;7, MS. Inst. Paraguay, I. 111.
See, to tlie same effect, correspondence of Mr. Seward with Mr. Riotte,
nun. to Costa Rica, Dip. Cor. IStJG, II. 430-435.
" It is also possible for a naturalized citizen, by returning to his
native country and residing there with an evident intent to remain,
or by accepting offices there inconsistent with his adopted citizenship,
or by concealing for a length of time the fact of his naturalization
and passing himself as a citizen of Ifis native country, until occasion
may make it his interest to ask the intervention of the country of his
adoption, or in other ways which may show an intent to abandon his
acquired rights, to so far resume his original allegiance as to absolve
the government of his adopted country from the obligation to pro-
tect him as a citizen while he remains in his native land."
Mr. Fish. Sec. of State, to Mr. Hall, vice consul-general at Havana, May 3,
1809, S. Ex. Doc. 108, 41 Cong. 2 sess. 201, 202.
See the ease of .7. R. Lacoste v. Mexico, U. S. & Mex. Commission, Moore,
Int. Arbitrations, III. 2501.
" Cautious scrutiny is enjoined in such cases, because evidence has
been accumulating in this Department for some years that many
§ 475.] LOSS OF RIGHT TO PROTECTION. 767
aliens seek naturalization in the United States \Yithout any design
of subjecting themselves by permanent residence to the duties and
burdens of citizenship, and solely for the purpose of returning to
their native country and fixing tiieir domicil and pursuing business
therein, relying on such naturalization to evade the obi i<rat ions of
citizenship to the country of their native allegiance and actual habi-
tation. To allow such pretensions would be to tolerate a fraiul upon
both the Governments, enabling a man to enjoy the advantages of
two nationalities and to escape the duties and burdens of each."
Mr. Fish, Set', of State, to Mr. Motley, miii. to Engliiiid, cirt-ulur, Oct. 14,
18G9, MS. Inst. Gr. Brit. XXII. 130.
" In judging Mr. Orlich's claim to protection as an American citi-
zen, you have the principle laid down in the circular from this De-
partment issued October 14, 18G9, to guide you. Without determin-
ing that the continued residence in Turkey of an Hungarian or
Austrian who may have been naturalized as an American citizen is
necessarily to be regarded in the same light as the circular indicates
with respect to a naturalized citizen returning to the country of his
nativity, it may well be that the same principle applies. The fact of
the person having been born in a contiguous jurisdiction assimilates
his case very closely to the case contemplated by the circular, which
was intended only to indicate the general principle and theory
by which the agents of the Government in foreign countries are to be
governed in deciding the questions which come before them.
"Among the tests which may be applied to determine the intent of a
naturalized person who resides continuously abroad, the fact of l)ay-
ment by such person of the income and excise taxes which liave been
imposed by law (since 1801) upon American citizens will be an im-
portant aid. Inquiry should be made when, and in what assessment
district, the returns required by the internal-revenue laws have l)een
made; where and to whom the taxes have been paid. The omission
to have made the returns, or to have paid any tax. would necessarily
cast grave suspicion upon the claim of the party api)lying for the
protection of a government from whose support he has withheld the
contributions required of all its citizens, whether resident at home or
abroad; and if such omission has l)een long continued, it will, as a
general rule, justify the refusal of a recognition of the claim to
protection.''
Mr. Fisli, Sec. of Stato. to Mr. MacVoajili. Dec. 13, 1S70. For. Hcl. 1S71,
SS7. S8S.
Cited in Mr. Fish, Sec. of Stato, to Mr. Wiiijr, iniii. to Efuatlor, Doc. l.">,
1S70. MS. Inst. Kcuador. I. 24S.
"An emiiiL-nt predecessor of mine in this Department, in an instruc-
tion to a minister of the United States in a foreign count rv. cxi)ressed
768 NATIONALITY. [§ 475.
the opinion that ' It can admit of no doubt that the naturalization
hiws of tlic Unitetl States conteniphite tlie residence in the country of
naturalized citizens, unless they shall go abroad in the public service
or for temporarv purposes,' ''
Mr. Fisii, Set-, of Statt', to Mr. Wing, Dot'. If), 1870, MS. Inst. I-k-iiador, I. 248.
" Naturalization effected in the United States without an intent to
reside permanently therein, but with a view of residing in another
country, and using such naturalization to evade duties and respon-
sibilities that would otherwise attach to the naturalized person, ought
to be treated by the (xovernment of the United States as fraudulent,
and as imposing upon it no obligation to protect such person ; and as
to this, the Executive must judge from all the circumstances of the
case.'"
Williams, At.-Gen., Aug. 20, 1873, 14 Op. 20.5, 299.
In 1883 John McCormack invoked the intervention of the Ignited
States to secure for him the payment by Great Britain of a claim of
$50,000, as indemnity for five months" imprisonment in Ireland. It
appeared that he was naturalized in the United States in 1807, but
returned in 1869 to Ireland, and remained there, with the exception of
a brief visit to America in 1873, till the time of his arrest in the latter
part of 1881 or the beginning of 1882. He had thus been absent four-
teen years from his adopted country, and been meanwhile a resident
of the country of his original allegiance. He had paid no taxes,
either State or Federal, in the United States, and did not allege that
he had any property there, nor had he given any manifestation of an
intention to return to the United States. The Government of the
United States declined to present his claim.
Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England. Feb. 27,
1884, For. Rel. 1884, 216.
" The question whether this Government should or should not inter-
vene in behalf of a citizen abroad cannot be determined solely by the
fact of citizenship. Such intervention is an international right
which, for the protection and preservation of the good name and in-
fluence of governments, is not to be asserted and maintained in favor
of persons who have sought to obtain it by fraudulent means."
Mr. Bayard, Sec. of State, to Mr. Winchester, No. IMi, Dec. 28, 1S8.5, MS.
Inst. Switz. II. 295. See also Mr. Bayard, Sec. of State, to Mr.
Sterne, April 20, 188(J, l.')9 MS. Dom. Let. G74.
" Mr. Bagur resided in the United States from 1852 to 18()5; and in
1860 appears to have been naturalized here, but, in view of what fol-
lows, no opinion is necessary as to the regularity of this procedure.
§ -175.] LOSS OF RIGHT TO PROTECTION. 769
In 1865 he returned to Spain. Thither he carried his wife, recently
married, there his children were born, and there he has since re-
mained— over twenty years. The fact that he has never voted or held
office in Spain, or taken part in any political (lemonstrati(m there,
may show that he is not a zealous Spaniard, but does not prove him to
have been a loyal citizen of the United States.
" 'While there is no allegation that he intended to return to the
United States, the inference to the contrary is rendered very strong by
his settlement in Spain after his marriage, the selection of Spain as
the place of his children's birth and education, and by his failure even
now to make any effort to return. Moreover there is no evidencx; that
he ever contributed by payment of taxes or otherwise to the support
of this Government. The facts furnish a presumption, not rel)utted,
that he has abandoned his nationality, involving his minor children in
the same abandonment. Under these circumstances thus understood
the legation will not accede to the request of Mr. Bagur for a United
States passport."
Mr. Porter, Acting Sec. of State, to Mr. Curry, Jan. 4, 1880, MS. Inst.,
Spain, XX. 138.
" You state that you are a naturalized American citizen of German
birth and that your parents, being aged, can not attend to business
any longer and wi.sh you to come back to (Jernuiny to take charge of
the same. You enquire whether under these circumstances yon would
be entitled to protection in Gernuiny as an American citizen.
" In reply you are informed that this Department holds that if a
naturalized citizen of the United States of his own free will leaves his
adopted country and returns to his native land, settles himself in
business there in his own right and not merely as the agent of an
American house, withdraws himself from the duties of citizenship in
his adopted country and voluntarily resides abroad, as a matter of
choice for such a period as reasonably leads to the inference of the
animus manendi which constitutes domicil, then, by his own action he
renounces his right to call on the United States to protect him against
the government whose control he has so chosen to place himself
under."
Mr. Porter, Act. Sec. of State, to Mr. Meyer. .lunc .JO. 1SS7. M'A MS. Doin.
Let. 519.
" Rooney, Ross, and Peterson appear, from their own statements,
to have made their permanent domicil — their home — in Hawaii,
and to have cast their lot with the people of those islands.
" It is incumbent upon all of these persons to rebut in a satisfactory
manner the presumption of abandonment of their American charac-
H. Doc. 551— vol 3 49
770 NATION.VLITY. [§475.
ter by showing that they contcniphited a return to this country to
particii)ate in the obligations as well as to share the rights of its
citizens. The same remark is applicable — though the presumption
of abandonment of American character is much Aveaker in his case
than in those of the others named — to Arthur White, who seems to
have been in Hawaii about eight years, but who does not appear
definitely to have made his permanent home there."
Mr. Uhl, Act Sec. of State, to Mr. Willis, uiin. to Hawaii, May 14, 1895.
For. Rel. 1895, II. 854, 85G.
The persons alwve. mentioned sought the support of the United States
for claims against the Hawaiian Government for alleged arbitrary
arrest and injurious treatment in connection with the attempted
insurrection of January, 1895.
Peterson's claim to protection was rejecteil on its being ascertained that
he had never been fully naturalized in the United States. (For.
Rel. 1895, II. 856.)
" Molteno was born in Hawaii, and, though naturalized here, re-
turned there some years ago, and has continuously resided there
since. This fact unexplained raises at least a presumption of his
abandonment of any right to our protection, such a presumption
being more easily entertained in the case of a foreigner naturalized
here and returning to his native land than in the case of a native
American taking up his residence in a foreign country."
Mr. Uhl, Act. Sec, of State, to Mr. Willis, min. to Hawaii, May 14, 1895,
For. Rel. 1895, II. 854, 85G.
" The duty of allegiance goes hand in hand with the right of pro-
tection. Those who become naturalized as American citizens and
then take up their permanent abode in a foreign land lose the right
to claim the protection of this Government Avhen they cease to pay it
allegiance. In coming to a determination in any particular case
whether protection should be granted or refused, great care should
be taken not to withhold protection Avhere it may be justly claimed;
but you are authorized to refuse it if upon a careful investigation
you are satisfied that the privilege of naturalization has been abused
for the mere sake of protection, and without any bona fide intention
to bear allegiance to the United States."
Mr. Hay, Sec. of State, to Mr. Hardy, min. to Persia, Feb. 2, 1S99, For.
Rel. 1898, 528, 529.
"A naturalized citizen may, by returning to his native country
and residing there Avith an evident intention to remain, . , . or by
concealing for a length of time the fact of his naturalization, and
passing himself as a citizen or subject of his native country until
occasion may make it his interest to ask the intervention of the coun-
§476.] LOSS OF RIGHT TO PROTECTION. 771
try of his adoption, ... so far resume his original allegiance as to
absolve the government of his adopted country from the obligation
to protect him as a citizen while he remains in his native land.''
Consular Regulations of the U. S., 1874, § 110.
See, to the same efFet-t, Mr. Fish, Set-, of State, to Mr. Hall, vice consul-
general at Havana, May :3, 1800, S. Ex. Doc. 108. 41 Cong., 2 sess., li(tl>.
"Persons who conceal their American nationality and represent
themselves to be Ottoman subjects are not entitled to call upon this
Government for j^rotection."
Mr. Hill, Act. Sec. of State, to Mr. Griscoiu, chargt's No. 345, Feb. 1(>,
1901, MS. Inst. Turkey. VII. 513.
(3) AMERICAN BUSINESS INTERESTS.
§476.
" It is highly conducive to the beneficial developments of these
relations that in selecting selling and other agents in a foreign land,
our producing and manufacturing houses should be able to avail
themselves of the services of such natives of the countries to be dealt
with as have become citizens of the United States. In this way we
obtain for ourselves the agent's knoAvledge of the language and other
conditions of the country to which he is sent, while, from the fact of
his naturalization in the United States, we have a political hold on
him, and are able, to some extent, to guarantee his personal i-ights.
Hence it is a common practice of our great producing and exporting
houses to send to Europe, as well as to South America, agents who are
natives of the country of their agency, but who have intermediately
l^ecome loyal citizens of the United States. There can be no doubt
that this practice has proved very beneficial to the country (»f the
agency, as well as to the country from which the agent is sent forth.
To limit such an agency to two years would greatly destroy its effi-
ciency. By the rules of international law. as recognized by all civil-
ized nations, an agent of this class may live and do business in the
place of his agency (if his intention is to return to dwell perma-
nently in the place from which he is sent) without acquiring a domi-
cil, or being subjected to a citizenship in the place of his ageniy.
Nor, so far as concerns citizenship, is this rule modified by the treaty
between the United States and Ecuador.''
Opinion appended to instructions of Mr. Rayard, Sec. of State, to Mr.
Beach, consul-general jit (Juayaquil, May 1. 1885. For. Kel. 18S);.
251, 253.
W., a citizen of the United States, had for a series of years ivsided
in South America, as the representative of business interests in the
772 NATIONALITY. [§ 476.
United States. Durin*; those yeai-s his visits to the United States
were occasional and brief; bnt there was evidence that he always
maintained his position as a citizen of the United States and that he
paid an income tax to the United States. There was no proof of
any renunciation of his alle^ance to the United States or of his
becoming naturalized in any of the foreign countries in which he
had resided. As a matter of policy, therefore, as well as of inter-
national law, it was held that his domicil and nationality were in the
United States.
Mr. Bayjird, Sec. of State, to Mr. Roberts, min to Chile, March 20, 1880,
MS. Inst. Chile, XVII. 19G.
S. was born in Bavaria in 1844; emigrated to the United States in
1865; and was naturalized in 1880, Immediately afterwards he
went to Switzerland and settled down as manager of a manufacturing
establishment, which was a branch of a house in New York. In
1887 he applied to the American legation in Berne for a passport,
using for the purpose the prescribed form, which contained a declara-
tion that he was residing abroad temporarily, but that he intended to
return to the United States in two years to reside and perform the
duties of citizenship there. The legation granted the passport, but,
in reporting its action to the Department of State, adverted to the
frequency of the cases in which persons, in a situation similar to S's,
after making the usual declaration appeared again at the end of the
two years and made the same declaration, and so on ad inflnituTn.
In reply, the Department said that the rule as to loss of diplomatic
protection by an apparently permanent abode in a foreign country
did " not apply to citizens of the United States going and remaining
abroad as agents of American business houses. It is as to these,"
continued the Department, " 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 obli-
gation 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 Arherican house is oj^en to no such charge. The con-
tinued 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 w\iy, 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 pecu-
liarly for the interests of business houses to emf>loy in a foreign land
§ 477.] LOSS OF RIGHT TO PROTECTION. 773
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."
Mr. Bayard, Sec. of State, to Mr. Winchester, iiiin. to Switzerland, Oct.
12, 1887, For. Rel. 1887, 1073.
Mr. Winchester's dispatch is printed in tlie same vohnne, at p. 10G9.
" If your client resides abroad as a member of an American firm,
or as the necessary agent or factor of an enterprise originating and
having its principal seat in the United States, and if he can truthfully
aver his intention to return to the United States Avithin a reasonable
time, his case would be in good shape to make application to the
embassy at London for a passport. In cases of representative busi-
ness agencies abroad, the Department does not exact a declaration of
intent to return at a fixed time, but it docs require a declaration of a
fixed intent to return sometime, which intent shall not be negatived
by the obvious circumstances of the applicant's domicil abroad.
Otherwise, in conformity with the admitted right of self-expatria-
tion, the party must be deemed free to voluntarily abandon his Ameri-
can domicil and forego the duties of good citizenship, by permanent
residence abroad, even though by so doing he absolves this (lovern-
ment from the reciprocal duty to protect him so long as he continues
to withdraw himself from his natural allegiance.
Mr. Ohiey. Sec. of State, to Mr. Stnrtevant, Nov. 2.''., 1800., 214 MS. I)oin.
Let. 158.
(4) REASONS OF IIEAiyril.
§ 477.
" It is presumed you will not deny that when a citizen of the
United States goes abroad, without any intention to return, he for-
feits, with his abandonment of his country, all right to the pro-
tection of its government. It is possible that, in going to the Fiji
Islands, Mr. Burt may have purposed returning to his native count iw
at some future period, but if this Department is not aware of
any formal renunciation of his nationality on leaving for that (juar-
ter, it is equally unaware of any formal declaraticm of an intention
to resume his abode in the United States and his allegiance to
its Government. His purposes, therefore, are left open to infer-
ence. Is there any case in which the Government may assume that
a citizen who may have gone abroad lias abandoned all intention tt)
return home? There must be such in the nature of things. Some-
times such an inference is justified by the length of the stay of the
citizen in foreign ]:)arts. If his absence should have been unduly
protracted, thereby exemilting him from the liabilities and burdens of
774 NATIONALITY. [§ 477.
a citizen, and, especially, if, during the same period, events should
have occurred appealing to the jijitriotisni of all citizens to share
equallj' in the common liabilities and burdens, when the occasion
for such an appeal shall have joassed, the party returns and asks
help to avenge grievances there experienced during his country's
agony at home, the duty of complying with such request is, to say
the least, regarded as questionable.
" You say that Mr. Burt bought a tract of land in a remote dis-
trict of the Fiji Islands. If one thing more than another can justify
the inference that a citizen who has left his own and continues a resi-
dence in a foreign country does this without an intention to return,
it is when the person so leaving purchases, lives on, and works land in
the foreign country. Mere travelers confessedly go abroad meaning
to stay a limited time. Such, also, usually is the case with those who
may go for scientific purposes; less so with those who go for objects
of trade. When, however, a man buys, settles on, and cultivates an
estate in a foreign country under such circumstances as those attend-
ing Mr. Burt's abode in the Fiji Islands, he may fairly be regarded
as practically expatriated."
Mr. Fish, Sec. of State, to Mr. Hackett, June 12, 1873, 99 MS. Dom. Let
205.
" It appears from your statement that you emigrated from the
United States to Fiji in 1800, your object being to obtain a residence
in a climate more favorable to your health. You there made con-
siderable investments. In 1875 the Fiji Islands were annexed to
Great Britain, and it appears that you suffered various injuries,
both from the Fiji and the British Governments, which would
entitle you to redress at least from the latter; and if you were a citi-
zen of the United States, domiciled in the United States, you might
in some contingencies sustain an appeal for the diplomatic interven-
tion of this Department. AMiether you still remain a citizen of the
United States is a question which it is not neces.sary here to discuss.
It is sufficient to say that your adoption of Fiji as a permanent
home leads the Department to infer that you accepted a Fiji domicil.
If so, your continmince in Fiji after British annexation makes your
domicil British, and under these circumstances it is not thought
that you can lay claim to the diplomatic intervention of this De-
j^artment.
" It was held in a recent case that, if a domicil in New Mexico was
proved to have attached to a British subject there resident, this
excluded such party from the right to appeal to British intervention
for redress for wrongs inflicted on the party in New Mexico. The
same principle rules the present case.
§ 477.] LOSS OF RIGHT TO PROTECTION. 775
" No doubt the grievances of which you complain entitle you to
much sympathy, but, if domiciled in Fiji, your redress must now be
sought from the British Government, either because it sanctioned such
injuries or because it stands in the place of the Fiji authorities, by
whom they were perpetrated."
Mr. Porter, Acting Sec. of State, to Mr. Burt, July 11, 1885, loO MS.
Dom. Let. 232.
The United States subsequently presented to the British Govern-
ment a claim for the alleged wrongful disallowance by the British
colonial authorities, after the annexation of the Fiji Islands to the
British Crown, of Mr. Burt's title to the lands above referred to.
The British Government having referred to the letters of Mr. Fish
and Mr. Porter, above quoted, the Department of State communi-
cated to the British Government a memorandum in which the objec-
tions made in those letters were answered. In this memorandum
it was stated that the observation made by Mr. Fish related to another
and different case, namely, a claim made by Mr. Burt for property
destroyed in Fiji by the natives before annexation, almost ten years
before the disallowance of Mr. Burt's title by the colonial authori-
ties. Besides, said the memorandum, Mr. Fish was not in posses-
sion of all the facts and circumstances that had since come to the
knowledge of the Department. Among the circumstances were the
facts that Mr. Burt had rendered important service to his country
in the Mexican War and afterwards on the Pacific coast, and that
through such service he incurred physical disability which would
have rendered him unfit for military service in the Civil War, and
that he went to the South Sea islands on the advice of a physician.
The memorandum also cited the opinion of Lord Campbell in Beat-
tie y. Johnson, 10 CI. & Fin. 139, to the effect that a change of
domicil does not necessarily effect a change of national character,
and that " there may be cases in which even a permanent residence
in a foreign country, occasioned by the state of health, may not
operate a change of domicil." Moreover, said the memorandum,
when the claim for the disallowance of Burt's title was })resented,
he was then and still continued to l)e a citizen of the United States
domiciled in the District of Columbia. The same observations, said
the memorandum, applied equally to the letter of Mr. Porter.
Memorandum accompanying instniotion (if Mr. Hill. Aft. Soc. o( Sf.ito. lo
Mr. Choate, ambass. to England, Oct. .'{1. 1S!)0. S. Doc. 140. r.tl ("oni:.
2 sess. 5~y-ru, ('►S, 70.
The rule that persons who take up an apparently i)ernianciit abode
in a foreign country are not entitled to di|)l()ni:itic j)rot<>ction. does
not apply to persons who go abroad for reasons of heullh and remain
776 NATIONALITY. [§478.
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 he distributed ac-
cording to the law of that domicil. In the rightfulness of this and
kindred rulings I entirely concur, and I hold that as American domi-
cil is in such cases retained so is American nationality, entitling
such parties to the protection due to citizens of the United States."
Mr. Bayard, Sec. of State, to Mr. Winchester, inin. to Switzerland, Oct
12, 1887, For. Rel. 1887, 1073.
The New l^orlc case al)ove i'eferre<l to douhtless is that of Dupuy v.
Wiirtz (1873), r»3 N. Y. 556.
See to tlie same effect, Mr. Evarts, Sec. of State, to Mr. White, min. to
Germany, No. 12, June G, 1879, MS. Inst. Germany, XVI. 409 ; Mr. J.
Davis, Act. Sec. of State, to Mr. Barnett, consul at Paramaribo, Aug.
20, 1884, 111 MS. Inst. Consuls, 413.
(5) BESIDENCE IN OEIENTAL LANDS.
§ 478.
The rule that the right to diplomatic protection is lost by an appar-
ently permanent residence abroad " does not apply to American
communities settled as such in Oriental lands and recognized in their
distinctively national character by the system of government prevail-
ing in such lands."
Mr. Bayard, Sec. of State, to Mr. Winchester, min. to Switzerland, Oct.
12, 1887, For. Rel. 1887, 1073, 1074.
It applies, however, to the return of a native to such a country. (Mr.
Roclvhill, Assist. Sec. of State, to Mr. Burke, No. 51, Dec. 29, 1896,
154 MS. Inst. Consuls, 682.)
As to national character in the East, see Abdy's Kent (1866), 224.
" The doctrine of implied renunciation of citizenship by continuous
residence in a foreign country does not completely apply to countries
where citizens of the United States enjoy extraterritoriality. In
such countries they live under the protection, more or less, of their
own Government, and are answerable to its laws. Consequently they
are generally held to retain their American domicil."
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia,
March 6, 1888, S. Ex. Doc. 31, 50 Cong. 2 sess. 34.
" In your No. 20, of August 20, 1887, you report your action in de-
clining to grant a i:)assport in the case of Alexander Ilatchdoorian.
" The facts appear to be these : The applicant, Alexander, is the son
of Sorkis Hatchdoorian, an Ottoman subject by birth, who emigrated
to the United States, and was naturalized by the United States circuit
§478.] LOSS OF RIGHT TO PROTECTION. 777
court at Boston on June 14, 1854. In 185G he returned to Turkey
bearing a passport dated Septenil>er 12 of that year, and has since
resided there, claiming American citizenship, and being registered at
the American consulate. It is not stated that he has at any time re-
turned to the United States or expressed any intention or made any
effort to return, or that he is engaged in any business in Turkey which
keeps him there as the representative of American interests, or that
he is a member of any particular American comnnmity in Tnrkey
recognized in Turkey as having distinctive and continuous American
privileges.
"Alexander, the son, the present applicant, was born in Turkey on
January 1, 1865, and therefore attained his majority on January 1,
188G. He has never resided in the United States, and now stM'ks a
passport, not for the purpose of adopting a permanent domicil in this
country or assuming any duties of such citizenship, but simply for the
purpose of ' visiting it sometime.' Under these circumstances In*
falls within the rule repeatedly laid down in this Department that
when a foreigner, after naturalization in the United States, return.;
to his native land and there, after merging himself in the society an(i
nationality of that land, has a son, that son, should he remain theri-
till his majority, is required, in order to have the protection of
American nationality, not merely to elect American citizenship, but
to carry that election out by taking immediate measures to come to
the United States as a permanent abode. The latter condition does
not exist in the present case, and therefore I am of opinion that the
passport applied for by Alexander was properly refused by you.
" From what has been said you will see that, while reiterating this
rule, I am careful to exclude from its operation cases of persons who.
with their families, remain in Turkey as the representatives of dis-
tinctively American business interests, and of j)ersons belonging to
particular American connnunities settled in Turkey, whose right to
preserve a distinctive corporate and continuous American nationality
is recognized by Turkey, and was affirmed by me in instructions to
you. No. 7, of April 20, 1887, and repeated by me in instructions to
W. C. Emmet, United States consul at Smyrna, inclosed in instruc-
tions to you, No. 37, of August 11 last. But tlie present applicant
does not claim to fall within either of these classes, and is not, there-
fore, so far as the case presented by him shows, entitled to the inunu-
nities assigned to them."
Mr. Rayard. Soc. of State, to Mr. Straus, niiii. lo Turkey. Sept. ."in. IS'^T.
For. Rel. 1SS7. li:U.
As to a souiowliat aualogous case, see For. Kol. 1S,S<>, .'?0;?.
"I have to acknowledge the receipt of your Xo. 2:V2. of the 20th
ultimo, whereby you ask to be furinshed with specific instructions as
778 NATIONALITY, [§ 478.
to tlu> ineasuiv of protootion to be acconlcd by the legation in the
cases of Annenians who have l)econie naturalized in the United
States and return to travel in Turkey under the guise of Ottoman
subjects.
" The power of the agencies of the United States to protect Ameri-
can citizens in their just international rights can only be exercised in
good faith and upon proof of the good faith of the party claiming
protection. It is not to be abused by such duplicity as you report.
As long ago as 1874 Mr. Fish said :
" ' For a naturalized citizen may, by returning to his native coun-
try and residing there with an evident intention to remain, or by
accepting offices there inconsistent with his adopted citizenship, or
by concealing for a length of time the fact of his naturalization and
passing himself olf as a citizen or subject of his native country until
occasion may make it his interest to ask the intervention of the
country of his adoption, or in other ways which may show an intent
to abandon his acquired rights, so far resume his original allegiance
as to absolve the government of his adopted country from the obli-
gation to protect him as a citizen while he remains in his native
land.' (Consular Regulations, 1874, paragraph 110.)
" This Government does not hold to the doctrine of perpetual alle-
giance, nor does it contest the right of any citizen of the United
States to voluntarilj'^ perform any act by which he may become a
citizen or subject of a foreign state according to its laws. The re-
turn of a naturalized Turk to Turkey, as an Ottoman subject, under
Turkish j^assport, and with submission to Turkish authority over
him as a subject, clearly dissolves the obligation of his adopted
country to protect him longer as a citizen, and the obligation can
certainly not be revived by the assertion or admission of the indi-
vidual that his reassumption of his original allegiance has been col-
orable merely and in bad faith, with deliberate intent to deceive.
The agencies of the United States in Turkey can not be privy to such
a deception."
Mr. Uhl, Acting Sec. of State, to Mr. Riddle, ohargo at Constantinople,
May 10, 1894, For. Rel. 1894. 7G1, in relation to the case of Garal)ed
M. ]\Ioin*ad, who apparently hoped " to return to and remain in
Turkish jurisdiction as a Turkish subject until it may he conven-
ient for him either to claim an American citizen's right to quit
Turkey or to invite expulsion as an objectionable alieii."
See, also, Mr. Fish, Sec. of State, to Mr. Hall, May :\ 18(59, S. Ex. Doc.
108, 41 Cong. 2 sess. 201, 202; case of J. B. Lacoste v. Mexico,
Moore. Int. Arbitrations, III. 2.'")r»l.
The concealment of American citizenship, on the return of a
naturalized citizen of the United States to his native country, is a
§478.] LOSS OF RIGHT TO PROTECTION. 779
circumstance which may affect his right to claim the protection of the
United States.
Mr. Gresham, Sec. of Stfito, to Mr. Terrell, miu. to Turkey, July 11,
1894, For. Rel. 1894, 7;«, 73.5.
" Where you are satisfied that aliens, Russians or others, have ac-
quired American citizenship with an obvious purpose of withdraw-
,ing themselves from their new allegiance and colonizing in Syria,
you should meet any application on their part by informing them
that their course is tantamount to a voluntary renunciation of right
to protection as citizens while so establishing their domicile abroad."
Mr. Rockhill, Act. Sec. of State, to Mr. Khouri, No. 45, Sept. 29, 1896,
154 MS. Inst. Consuls, 3.5.
A native of Turkey who had been naturalized in tlie United States
" could not receive any protection from this Government in the event
of his returning to his native country as a Turkish subject."
Mr. Moore, Assist. Sec. of State, to Mr. Smith, .lune 8, 1S9S 229 MS.
Dom. Let. 229. See, also, Mr. Hill, Act. Sec. of State, to Mr. Griscoui,
charge, No. 354, Feb. 10, 1901, supra, § 475, p. 771.
" Your dispatches Nos. 18, 20, 23, and 34, diplomatic series, of the
respective dates of February 23 and 27, and March 1 and April 29,
have been received. They report the case of Hajie Seyyah, stated
to bo ' in asylum ' at your legation, and ask instructions in the
matter.
" Briefly, Mirza Mohamed Aly, otherwise styled Hajie Seyyah, a
native Persian, appears to have been admitted to American citizen-
ship by the fourth district court of San Francisco, June 11. 1875.
Soon afterwards he quitted the United States, went to India, where
he amassed some fortune, and thence returned to Persia, where he has
invested his means in the purchase of two villages, aggregating some
thirty families. He is a ' Mollah,' or Mohammedan priest of liigh
rank. He has two wives, one of whom is a relative of the Shah. He
appears to be domiciled in Persia, and to have fully adopted Oriental
customs and life. He has never had an American passport, and until
a very recent date would seem to have made no assertion of the status
he acquired by naturalization in the United States.
" Having shared, to some extent, in the recent politiciil agitation
of a seditious nature, initiated by Malcolm Khan, and having had
seditious publications addressed to him, he was some two years since
arrested and imprisoned in various places for nearly twenty months.
On his release he found his affairs involved, one of his villages having
been robbed, fields taken from him, and debts due him withheld.
" Seeking redress, restitution of the realtv was eli'ected, but he
780 NATIONALITY. [§ 478.
seems to have been unable to collect the moneys owing to him. At
this juncture he sought your assistance in the recovery of these debts,
alleging his American citizenship, and you addressed the prime min-
ister asking that justice be done him. The minister denied your right
to intervene, asserting that under Persian law, fortified by certain
treaty provisions with Russia, which are held to constitute the meas-
ure of privilege under the most favored nation clause of our treaty
with Persia, Hajie Seyyah's naturalization is invalid, because he
emigrated without his sovereign's consent. Fearing arrest (for what
cause is not shown), ITajic Seyyah appealed to you for shelter, and
became an inmate of your legation, nominally as a salaried servant.
As the result of several interviews had by you with the Persian author-
ities, orders have been issued permitting this person to return unmo-
lested to his villages, but his status as a naturalized citizen and his
' asylum ' in your legation had been formally denied ; and the relief
reported in your No. 34 is unaccompanied by any admission in these
regards.
" Hajie Seyyah has expressed a wish to return to the United States.
" Two distinct and somewhat conflicting questions appear to be
involved — Hajie Seyyah's claim to protection as an American citi-
zen, and his claim to enjoy asylum against process of Persian law.
As to the first, the uniform rules and precedents of this Government
make Hajie Seyyah's claim to protection as a hona fide citizen of the
United States extremely doubtful. He quitted this country soon
after having been naturalized, and has lived abroad, latterly in his
native land, some seventeen years, without manifesting his American
citizenship or performing its duties. His domicil, interests, member-
ship in a purely oriental hierarchy, mode of life, and polygamous
marriage suggest no affiliation with the social organization of this
country. Were he within the jurisdiction of the United States, he
would be amenable to criminal process for bigamy.
"All the circumstances of his case suggest a merely colorable acqui-
sition of American citizenship for the jjurpose of evading the obliga-
tions of his original Persian allegiance, and Avere he an applicant for
a passport as a citizen of the United States you would be unhesi-
tatingly instructed to decline its issuance. . . .
" You make the point that the question whether Hajie Seyyah is in
fact a Persian subject, is the vital issue in the case. The effect of nat-
uralization under the laws of the United States, is no wise dependent
upon or affected by the laws of the alien's country. So far as we are
concerned, it is j)erfectly immaterial whether Hajie Seyj'ah had or had
not the Shah's permission to emigrate, if he be lawfully admitted to
American citizenship ; and his rights would be effectively respected in
the United States and protected in a third country. But when he
voluntarily returns to his native country, presumably knowing the
§ 479.] LOSS OP RIGHT TO PROTECTION. 781
law thereof in this regard, he becomes the subject of a conflict of hnvs.
The legality of his naturalization in the United States is not to be
questioned except by allegation of fraud in its procurement, which
does not enter into the present case.
"The claim of the Persian minister that the naturalization here is
not valid, because lacking the prior consent of Persia, can not be.
admitted, but on the other hand and in the absence of a treaty of
naturalization, its validity may not be practically enforceable in Per-
sia against the counter claim of that Government, that under its law
the man has not lost his original allegiance.
" The emigration treaty of July 3, 1844, between Russia and Per-
sia, which the minister invokes, has no relation whatever to the nat-
uralization of Persians according to the laws of the United States;
for the widest expansion of the favored-nation doctrine could not
make a treaty between two foreign states the measure of the validity
of a judicial act done in the United States in conformity to our
municipal law.
" To sum up, I have no hesitancy in regarding as unAvorthy the
claim of Hajie Seyyali to be protected as a person who has hona fide
conserved the rights and discharged the reciprocal duties of American
citizenship, however lawful be the act of his naturalization.''
Mr. Gresham, See. of State, to Mr. Sperry, iiiiii. to IVrsia, May 17, ISO.'?,
For. Kol. 189.3, 498.
Mr. Sperry, in c-oiiiuiunioatinjj; this decision to tlie Persian prime minister,
said: "My Government decides that Ilajie Seyyali is not a citizen of
the United States, on tlie gronnd tliat tlie rl.i^lits wiiidi he aciiuired
by . . . naturalization . . . have been lost because he never
made any use of these rij;hts." (For. Kei. 1S9.'>. .100.)
With reference to this statement, the Department of State directed that
the Persian Government be advised : " The Department did not decide
whether Ilajie Seyyali had lost his United States citizi-nship, still
less whether he had become reclothed with Persian citizenship. \v
cordiufj to instruction No. .*!:'., in the absence of evidence tliat Ilajie
Seyyali had h<»ni fide conserved American citizenship. lu> could not
be regarded as entitled to the jirott'ction of tlie United Sfat«'s, while
continuing to dwell in the land of his origin; nor is th(>re anything
in that instruction to sustain the terms of Mr. Sperry's conclnsiuii.
Naturalization being a judicial act. tlie c.\ecutiv(> i)rancli is without
competence to annul a decree of naturalization, and <nn not deilare
forfeiture of citizenshii) in the alisi'uce of legislation to that «Mid."
(.Mr. .Vdee, .Vcting Sec of St.ite. to .Mr. .McDonald, min. to Persiii,
Sept. 21, 189:}, For. KeJ. 1S9:',. noi.)
2. OiKUK Iloi.niNo.
§ 471).
" "\Mien an alien is at the very time of his naturalization, and for
years before has been, a resident and oflicc-holdcr in tlie coMi.trv of his
origin, when after his naturalization he puts liis ccililicalc in his
782 NATIONALITY. [§ 479.
pocket and returns to the country of his origin, and continues to reside
there in business and holding office, the President feids it to l>e his
dut}^ to afford to such a citizen only the measure of i)rotection de-
manded by the strictest construction of duty, namely, that he shall
receive from the hands of the Government under which he is holding
office the measure of protection which it affords to its own citizens or
subjects."
Mr. Frelinghuysen, Sec. of State, to Mr. Ix)\vell, min. to England, April
25, 1882, For. Rel. 1882, 230, 231.
In this case the naturalization was performed under § 2106, R. S., relating
to the naturalization of i)ersons wlio have served in the armies of the
United States, With reference to the foregoing extract, it is to be
observed that Mr. Frelinghuysen, as api)eax-s by the text of the
instniction, construed § 21GG as re(iuiring the court to grant natural-
ization, without regard to the time when the service was rendered,
and without regard to tlie fact that the applicant had meanwhile
■" abandoned the country and was in business in a foreign land, and
holding office there with every apparent purpose of remaining there
permanently." Mr. Frelinghuysen declared, indeed, that an act of
naturalization under such cii'cumstances, which were those of the
case before him, was " only just within the letter " and " wholly out-
side the spirit and intent of the naturalization laws." But, as he
considered it to be within the letter, he seems further to have held
that there should in consequence be allowed in such a case, after
naturalization, a latitude of action not enjoyed by persons admitted
to citizenship under other provisions of law, and amounting to an
exemption from the ordinary presumptions with regard to the renun-
ciation of adoptive nationality by return to and residence in the land
of origin.
That this was assumed to be so seems to be indicatetl by the decision in
another case in the same instruction, presenting similar features as
to residence and office-holding in the country of origin, but where
the naturalization was granted under the ordinary conditions. In
this case it was held that the most the United States could do was to
insist that the person " should have a right to return to the country
of his adoption, leaving the question of damages for future discussion."
" When a naturalized citizen resumes his residence with his family
in the land of his origin, and goes into business there, and becomes an
office-holder, and takes active part in political discussions, if it turns
out that his action gives offense to the local government, and he is
thrown into prison, the laws and interests of the United States do not
require us to do more than insist that he shall have a right to return
to the country of his adoption, leaving the question of damages for
future discussion.
" Such is understood to have been the course pursued by the United
States during the late civil war. In September, 18G2, the British
charge d'affaires at Washington requested the discharge of one Fran-
cis Carroll, a British subject, who had been arrested by the military
§ 47t).] LOSS OF RIGHT TO PROTECTION. 788
authorities in Baltimore. Mr. Seward refused the request, and in a
note to Mr. Stuart said :
" ' Is the government of the United States to be expected to put
down treason in arms and yet leave persons on liberty who are capable
of spreading sedition ? . . . Certainly the governiijent could not
expect to maintain itself if it allowed such mischievous license to
American citizens. Can the case be different when the dangerous per-
son is a foreigner living under the protection of this government ? I
can conceive only one ground upon which his release can be ordered,
and that is that he may be too unimportant and too passionate a per-
son to be heeded in his railings against the government. But you
will bear in mind that the times are critical, and that sedition is easily
moved now by evil-designing men who in times of peace ndght be
despised.' (Dip. Cor. 18G2, p. 228.)
"A correspondence ensued, which resulted in a proposal that —
" ' Mr. Carroll should be released from custody upon his agreeing
•to leave the United States immediately, and not return again during
the continuance of this rebellion, and giving security to the approval
of the United States marshal that he will keep said agreement.' (Dip.
Cor. 1863, p. 460.)
"This offer Avas accepted by the British charge d'afl'aires, and Mr.
Carroll was discharged."
Ir. Frelingliuysen, Sec. of State, to Mr. Lowell, min. to England, April
25, 1882. For. Kel. 1882, 230, 231.
" Your letter of the 21st ultimo, addressed to the President, has
been transmitted to this Department for reply. You state in sub-
stance that you have been selected by citizens of Bluefields, Nicaragua,
as a member of the local municii^al council of that city: that, among
other powers, to this council will be intrusted the imi)osition of taxes
for the local government ; that by the exercise of economy and good
judgment the same may be lightened, trade revived, and conlidence
restored, and thereby the condition of American interests in Bluefields
will be much benefited and the ])r()})erty of Americans rendered of
greater value than at present. You further state that, if good citi-
zens will not accept these positions, then irresponsible parties, having
no property to be affected, will be selected with attending results
inimical to business and property. You iiupiire whether by accei)t-
ing such a place in the municipal government, you will lose the benefit
of protection l)y this (lovernmenl as an .Vnierican citizen.
" In reply I have to say that, in view of the fact that yon are <l(»mi-
ciled in Nicaragua, not for the ])urp<)se of a i)ennanent residence, but
w'ith the intention of returning to the United States, and in view also
of the importance of .Vmerican investments in Bluefields. wjiicli so
largely predominate there, and that American citizens thus interested
784 NATIONALITY. [§ 479.
naturally have a deep concern in the matter of local taxation and
good iniinicii)al administration, I am of the opinion that to accept
the position for which you have been selected, and to act as one of
the municipal council aforesaid, recognized by the Government of
Nicaragua, will not operate to forfeit the protection to which Amer-
ican citizens in a foreign jurisdiction are entitled, but that such pro-
tection would be extended, subject, however, to the limitations and
conditions applicable to those so situated; that whatever is done
must be in the light of the Nicaraguan constitution and Nicaraguan
laws, and with a view also of the possible results consequent upon
any internal dissensions that may occur, or changes of Nicaraguan
authority against which this Government can not provide."
Mr. Uhl, Act. Sec. of State, to Mr. Weil, Oct. 4, 1894, 199 MS. Dom. Let.
60.
" While it was the opinion of this Government at the time that if
Mr. Wiltbank, without having taken any part in the insurrection,
accepted office under an insurrectionary authority for the sole pur-
pose of i^rotecting the community and preserving order during the
supremacy of a de facto government which he was unable to resist,
he was not guilty of any hostile act to the Government of Nicaragua
which would justify his expulsion, the fact yet remains that, from
the point of view of Nicaragua, at the time Mr. Wiltbank was ar-
rested and forcibly sent away, he was one of the officers of a revo-
lutionary government which had seized upon the reins of sovereign
authority within the territory and political jurisdiction of Nicara-
gua. His motives and the limits within which he had acted may not
have been known to the Nicaraguan authorities until they were
shown by this Government, when Mr. Wiltbank was permitted to
return to his home and resume his business.
" The Department has decided that Mr. Wiltbank is not entitled
to exemplary damages or indemnity for personal suffering or incon-
veniences attending his expulsion. He makes no claim for actual
pecuniary loss resulting therefrom. If he will show that the action
of the Government of Nicaragua in this matter caused him a direct
property loss, whether by destruction of his property or otherwise,
the Department will consider the claim anew. Remote or conse-
quential damages, however, can not be taken into consideration."
Mr. Roekhill, Act. Sec. of State, to Messrs. Phillips & McKenney, Sept 1,
1896, 212 MS. Dom. Let. 300.
" Von Werthen and Juen have both held official position under the
Hawaiian Government — the former as a detective under the provi-
sional government and the latter as a custom-house officer and police
captain under the monarchy, and again as a police captain under the
§480.] LOSS OF RIGHT TO PROTECTION. 785
provisional government. The acceptance of civil office in a foreign
country indicates such an identification of the person accepting it
with the country he serves as to raise serious doubts whether he can
rightfully claim, as against that country, the protection of his orig-
inal nationality."
Mr. Uhl, Act. Sec. of State, to Mr. Willis, min. to Hawaii, May 14, 1895,
For. Rel. 1895, II. 854, 855.
Responding to an inquiry whether an American citizen would lose
his citizenship by being elected to a position under a city govern-
ment in Cuba, the Department of State said: "If, in accepting
the office, you do not take an oath of allegiance to a foreign state,
nor renounce allegiance to the United States, the mere acceptance
of the municipal office under the present regime in Cuba would
not forfeit your American citizenship. But should you remain per-
manently in Cuba, and, at some future time, claim the protection
of the United States, your acceptance of the office would be a circum-
stance which might have some bearing on the question whether you
had abandoned the right to claim American protection."
Mr. Hill, Assist. Sec. of State, to Mr. Lombard, May 12, 1900, 245 MS.
Dorn. Let. 189.
3. Taking Pabt in Politics.
§ 480.
" While the bare fact of his American citizenship may not be in
doubt, the attendant circumstances of his case are not such as to
very strongly impress the Department that his acts in Costa Tvica
were altogether those of a bona fide, peaceful, law-abiding citizen
of this country; and unless other facts, not known to the Depart-
ment now, shall be adduced to show that the conduct of ^Nfr.
since his naturalization has not only been that of a good American
citizen, but also entirely disconnected from the internal politics of
Costa Rica, it is not seen that his chiim could, with jiropricty, lx>
very earnestly urged. You may therefore let it rest for the i)resent."
Mr. Evarts, Sec. of State, to Mr. Logan, No. 2S, Oct. 2.'1. 1S79. MS. Inst.
Cent. Am. XVIII. 47.
See, also, Mr. Blaine, Sec. of State, to Mr. Logan. March 0. 1S81. id. l."9.
Certain persons having in the character of citizens of the United
States preferred claims against the Hawaiian Government for tiieir
alleged arbitrary arrest and detention for connection with the
attempted rising of January, 1805, the Department of Slate obsei-ved
that all of them, with one exception, ''were living in Hawaii at the
H. Doc. 551— vol 3 50
786 NATIONALITY. [§ 481.
time of tlio subversion of the monarchy and of the election held in
May, 1894, for members of the constitutional convention. I^eaving
out of view for the moment other tests of their bona fide American
citizenship or their right to American protection, it is important to
ascertain whether they took the oath required for participation in
that election or did actually participate in the same. You are desired
to inform yourself accurately on this point and communicate the
result to the DeiDartment."
Mr. Uhl, Acting Sec. of State, to Mr. Willis, mlu. to Hawaii, May 14, 1895,
For. Kel. 1895, II. 854, 855.
" John Mitchell was admitted, it appears, to special rights of citi-
zenship-under a provision of the new constitution of Hawaii, con-
ferring such rights on persons who actively participated or other-
wise rendered special service in the formation of the provisional
government. Having thus personally taken part in the subversion
of one government and the establishment of another in a foreign
country, it is questionable whether he has not so completely identi-
fied himself with the government which was finally established, as
to have lost his right to American protection, notwithstanding he
appears to have intended to reserve that right."
Mr. Uhl, Acting Sec. of State, to Mr. Willis, niin. to Hawaii, May 14, 1895,
For. Rel. 1895, II. 854, 855.
Mr. Mitchell had invoked the intervention of the United States in respect
of a claim against the Hawaiian Government growing out of his
alleged arbitrary arrest for connection with the attempted revolt of
January, 1895.
See, in this relation, the case of the Ilahnville lynching, under Declara-
tion of Intention, supra, § 387.
4. Unneutral Conduct.
§481.
Acts of hostility committed by American citizens against such as
are in amity with us, being in violation of a treaty and against the
public peace, are offenses against the United States Avhen committed
within the territory or jurisdiction thereof, and as such are punish-
able by indictment in the district or circuit courts. The high seas
being within the jurisdiction of the district and circuit courts, such
an offense committed thereon is cognizable by said courts. Where
such an offense is committed out of the jurisdiction of the United
States the offenders must be dealt with abroad, and, after proclama-
tion by the President, will have forfeited all protection from the
American Government.
Bradford, .At. Gen., 1795, 1 Op. 57. See, generally, as to the effect of
claimants' misconduct, infra, §§ 975-977.
§ 481.] LOSS OF RIGHT TO PROTECTION. 78?
The British Government iic<iuiesce(l in the execution of Arlnithnot
and Ambrister by Genenil Jackson in Florida ill 1818, on the ground
that, by going to Florida and entering into the service of parties
engaged in attacks on a friendly l)ower, they had forfeited the right
to claim the protection of the British (iovernment.
Schouler's Hist, of the United Stutes, III. T2 et scii.
Accompanying the Texan expedition to Santa Fe, -when it was
captured by the Mexican authorities, there were certain citizens of
the United States, who, it was alleged, were not parties to the expe-
dition so far as it was military and hostile to Mexico, but acc()m[)anied
it only as traders or travellers or in other nonconibatant characters,
but who were nevertheless taken and held as prisoners and subjected
to grave ill-treatment. It was conceded by the United States that
the fact of having been found in arms, Avith others admitted to be
armed for belligerent purposes, raised a presumption of hostile char-
acter; but it was maintained that this i^resumption might be re-
butted, especially where the journey lay through a wild country
where traders and travellers were obliged to be armed for defence.
The Government of the United States, therefore, in the case of one
of the persons above referred to, being satisfied of his innocence, de-
manded his release both on that ground as well as on the ground of
his maltreatment. It was added, however, that, if the (Government
of Mexico insisted upon detaining any of the persons in (juestion for
further inquiry, they should while so detained be permitted to enjoy
to the fullest extent the rights of prisoners of war, and that, in case
an assurance of such treatment should not be given, official inter-
course with the Mexican Government should be suspended.
Mr. Webster, Sec. of State, to Mr. Tliompsou, iiiiii. to .Mexico. April 1.">r'">l.
1842, (> Webster's Works. 427.
See, also, Mr. Wekster, See. of State, to .Mr. Eliis, iniii. to Mexieo. .Tan. .'5.
1842, 0 Webster's Worlcs, 422.
A citizen of the United States who in a foreif^n conntry joins as a com-
batant a hostile exjK'dition there set on foot aj^ainst another conntry.
and is captnred by the anthorities of the latter within its jnrisdiction.
forfeits his claim to the protection of his own jrovernment. (Mr.
Webster, See. of State, to Mr. Teyton. .Ian. C. ISl'J. :!2 MS. Horn.
Let. 140. An extract from this letter may be fonnd in ('. W»'bster"s
Works, 425.)
By a proclamation issued in 1840, President Taylor, referring to
the report that an armed exjiedition was about to be fitted out in the
United States for th(> invasion of (^iba or of some of the provim-cs
of Mexico, warned "all citizens of the United States who shall con-
nect themselves with an enterprise' so grossly in violation of our laws
and our treaty obligations that they will thereby subj(>ct tlicin-elves
to the heavy penalties denounced against them by our acts of Con-
788 NATIONALITY. [§ 481.
gress and \Yill forfeit their claiiii to tlie i)rotecti()n of their count ry.
No such persons," he added, " must expect the interference of this
Government in any form on their behalf, no matter to what ex-
tremities they may be reduced in consequence of their conduct."
Proclamation of President Taylor, Aug. 11, 1849, llichardson's Messages,
V. 7.
In a proclamation issued in 1851, President Fillmore declared that
there was reason to believe that a military expedition, instigated and
set on foot chieflj^ by foreigners, was about to be fitted out in the
United States for the invasion of Cuba; that such expeditions could
be regarded only as adventures for plunder and robbery; and that
they were, besides, expressly prohibited by the statutes of the United
States. He therefore Avarned " all i^ersons " who should " connect
themselves with any such enterprise or expedition, in violation of
our law's and national obligations," that they would '' thereby subject
themselves to the heavy penalties denounced against such offences,
and wuU forfeit their claim to the protection of this Government or
any interference in their behalf, no matter to what extremities they
may be reduced in consequence of their illegal conduct."
Proclauiation of President Fillmore, April 25, IS-ll, II. Ex. Doc. 2, 32
Cong., 1 sess., part 1, 27; Richardson's Messages, V. 111.
"Although Captain Clark individually may have been an American
citizen, his ca^jtures, while in command of an Uruguay i)rivateer,
were Uruguay captures; and any claim to be i)referred against Co-
lombia, on account of the spoliations committed by the Venezuelan
navy, must be preferred by Uruguay and can not possibly be made or
enforced by the United States. That Clark's family resided in the
United States, that he returned to the country of his birth and died
there, does not change the aspect of the case, which is not determined
by the nativity of the individual, but by the flag of the belligerent."
Opinion of Ilassaurek, U. S. Couir., for the Connnission, in the cases of
the Medea and Good Return: Convention between the United States
and Ecuador, Nov. 25, 1S02, Moore, Int. Arbitrations, III. 272!). 2~:M>.
See, to the same effect, opinion of Sir Frederick Pruce, innpire, U. S. and
Colombian Claims Connnission, convention of Feb. 10, 18(54, Moore,
Int. Arbitrations, III. 2740-274.*?; and opinion of Findlay, U. S. Comr.,
for the Commission, convention between the United States and Ven-
ezuela, Dec. 5, 1885, Moore, Int. Arbitrations, III. 2743-2751.
A citizen of the United States who voluntarily enlists in a for-
eign army has no claim on this Government to intervene to procure
his discharge.
Mr. Fish, Sec. of State, to Mr, Bliss, Nov. 4, 1872, MS. In.st. Mex. XVIII.
340.
§ 482.] LOSS OF RIGHT TO PROTECTION. 789
For cases on this subject, see Moore, Int. Arbitrations, III. 2-K>7-.S, 2i:>'2.
That a citizen of the United States enlisted in tlie service of a foreiiin Ik'1-
ligerent can not claim the interposition of his own (Jovernnient for
redress for injuries suffered l>y liini in sucii service, see Mr. Fish,
Sec. of State, to Mr. Williams, July 2'.), 1.S74, <iuoted supra, § 22r>.
" A party whose goods are confiscated as tainted with insurgency
can not chiim compensation if he was himself implicated in sucli
insurgency."
Mr. Bayard, Sec. of State, to Mr. IMuruajia, Span, min., Dec. ,*i, 18.S<;, For.
Rel. 1887, 101.-), 1019.
It was reported in 1893 that Dr. Charles E. Boynton, a citizen of
the United States, had been arrested at Rio de Janeiro and was in
danger of execution on account of some act connuitted during the
insurrection then existing in that quarter. The report i)roved to he
erroneous. The facts appear to be (hat Dr. lioynton attempted, in
the interest of the Brazilian Government, to use a torpedo again.st
the revolted vessels of the Brazilian navy, employing for that purpose
a small tug, over which he unlawfully hoisted the British flag. The
commander of the British naval forces, seeing the British Hag so
used, seized the tug, but, finding that its master was an American citi-
zen, turned him over to Captain Picking, of the U. S. S. Chin-Jcsfoii,
who reported the matter and was directed to hold Dr. Boynton till
further orders. Captain ]*icking Avas afterwards directed to send
him home, on sufficient funds being provided to i)ay his passage*.
Mr. Adee, Second Assist. Sec. of State, to Miss Boynton, Oct. 121, ISO,"],
194 MS. Dom. Let. 7(5.
5. FuaiTivKs KROM .Tusticf:.
§ 482.
J. H. Mcars, in view of the fact that he jiarticipated " in tlie enor-
mous fraud perpetrated by (lardiner and othei-s,"'an(l in view of other
circumstances of his case, ''"ought not to have e\|)ect('d any interfej--
ence in his behalf by this (Jovernment on account of his alleged mal-
treatment by Mexico, for he certainly has no claim to it. It is not
over crimiruils or fugitives from justice in foi-eign countries, though
they may have been born or naturalized in the Unitt'd States, that
this (Government is bound to throw the shield of its prot(>ction when-
ever they see fit to call on it to do so. It is to oui- citizens abroad for
honest purposes, who still look to the Tnited States as thcii- home to
which they intend to return, or in other words, to those who arc >till
under allcfriance to this (lovermnent, or have a domicil heic. tliat our
790 NATIONALITY. [§ 483.
Government extends its care, and will ofTer, when occasion requires,
its guardian protection.''
Mr. Marcy, Sec. of State, to Mr. Gatlstlen, in in. to Mexico, No. 54, Oct. 22,
18r».'), MS. Inst. Mexico, XVII. .''>4. As to the case of Mears and
Gardiner, see Moore, lut. Arbitration.s, II. 1255, 12G5.
"As a general principle, a fugitive from justice can not appeal for
protection to the justice from which he flies. Thus, it is a familiar
rule that a convict can not take out a writ of error, when a fugitive
from justice. It might therefore be said that until Winslow shall
have submitted himself to the justice of his native land, the laws of
which he is charged with violating, he is not in a position to appeal
to their protection against the justice of a foreign land. A passport,
which is the primary form and evidence of protection given to a citi-
zen by his government, has frequently been denied to persons residing
in a foreign land, in contumacy or violation of the laws of the
United States. Were Winslow merely an applicant for a pass-
port, the fact that he is a contumacious fugitive from the justice of
Massachusetts would be a sufficient reason for denying to him that
evidence of the reciprocal duty of the law-abiding citizen and obliga-
tion of his Government. It does not, however, appear necessary to
rest a conclusion in the present case upon this argument."
Mr. Bayard, Sec. of State, to Mr. Hanna, niin. to Arg. Rep.. No. 22, .Tune
25, 1880, MS. Inst. Arg. Rep. XVI. 385.
This Instruction i-elated to an application of " D. Warren Lowe," appar-
ently Ezra D. Winslow, for the Intervention of the United States in
certain bankruptcy proceedings in which he had become involved in
the Argentine Republic. The decision of the Department of State not
to intervene rested not only upon the ground above stated, but also
upon the ground that he had abandoned the United States and settletl
in the Argentine Repulilic animo manendi.
Winslow seems to be judicially domiciled in Massachusetts. (Cobb v.
Rice, 1.30 Mass. 2.31.)
• 6. Question of Matriculation.
§ 483.
" The matriculation of foreigners as defined in article 21 of this
chapter [iii.. of the law of Salvador, of Sept. 27, 1880] is an inscrip-
tion of their names and nationalities in a book kept for that j)urpose
in the department for foreign affairs. In order to be so registered,
they must produce to that department certain evidence, prescribed
by law, of their right to the national status claimed. If the requi-
site evidence be exhibited, the name and nationality of the applicant
are registered, and in proof of this, he is given a certificate of
matriculation, which is, however, only jirhnn facie evidence of his
national status. But without this certificate no authority or public
§483.] LOSS OF RIGHT TO PROTECTION. 791
functionary of Salvador is permitted to recog'nize a foreij^ner's
nationality (Chapter III. article 2G).
" Upon the score of mere convenience it is evident how inexpedient
as a matter of policy, in the present age of enlarged and liberal
intercourse and of extensive commercial transactions, are nuniicii)al
regulations which tend to impede and restrict the movements and
business operations of foreigners.
" But the law in question, as understood by this Dei^artment. goes
beyond considerations of convenience, and raises important (piestions
of international right. By article 28, Chapter III., it is provided
that matriculation concedes privileges and imposes special obligations
which are called by the laws of the Republic ' the rights of foreigners.'
These rights of foreigners, as stated in article 20 of the same chapter.
are as follows:
" (1) To appeal to the treaties and conventions existing between
Salvador and their respective governments.
" (2) To have recourse to the protection of their sovereign through
the medium of diplomatic representation.
" (3) The benefit of reciprocity.
" Unless a foreigner possesses a certificate of matriculation, no
authority or public functionary of Salvador, as has been seen, is
permitted to concede to him any of these rights; and it is further
provided in article 27 of the chapter in question, that the certificate
of matriculation shall not operate retroactively upon a claim of right
arising anterior to the date of matriculation. Thus the object and
purport of the law in question is to make the enjoyment and assertion
by a foreigner in Salvador of the consequent rights and privil(>ges
of his national character, whether they are guaranteed by treaty or
secured by the general rules of international law, conditional upon
his contemporaneous possession of a jinper ])res('ribed by the munici-
pal law of the country as the proper })roof of his citizenshii).
" In order to appreciate the significance of such a reciuircnient. it is
only necessary to consider that, if admitted, its eil'eet would be to
leave the question of the national status of a foreigner wholly to the
determination of the Salvadorian authorities, and that, in the event
of his failure to exhibit such pi-oofs of citi/enship as they may deem
sufficient, his right to claim the pi-otection of his govermnent woultl
be lost. Conversely the right of his government to interp<»se in his
behalf would also be destroyed: for to deny to a foreigner rccoin-e
to his government, by necessary implication, (piestions and denies the
right .of that government to intervene.
"Thus, by making the compliance of a i'oi-eigner with a niunirii)al
regulation a condition [)recedent to the recognilion of his niitional
character, the Salvadorian Government not only assume- to be the
7V)2 NATIONALITY. [§ 483.
sole judge of his status, but also imposes upon him as the penalty of
noncompliance a virtual loss of citizenship.
" Nothing would seem to be required beyond the mere statement of
these propositions, fully sustained as they appear to be by the con-
text of the law in question, to confirm the conviction that its enforce-
ment would give rise to continual and probably grave controversies.
Such has been the result of the occasional attempts elsewhere than
Salvador to enforce similar regulations, and such would seem to be
the necessary result of the attempt of particular governments to en-
force laws which operate as a restriction upon the exercise and per-
formance both by states and by citizens of their relative rights and
duties, according to the generally accepted rules of international
intercourse. Such intercourse should always be characterized by the
utmost confidence in the good faith of nations, and by the careful
abstinence of each from the adoption of measures which, by operating
as a special restriction upon the action of other governments in
matters in which they have an important if not the chief concern,
seem to imply distrust of their intentions. It is proper to observe
that the Government of Mexico, guided by the experience of an
ample trial of her law of matriculation, modified it in June last by
the repeal of those provisions which made the matriculation of
foreigners compulsory and a condition of the exercise of their right
of appeal to their government.
" It may be said that the question of citizenship is one which pecul-
iarly concerns the government whose protection is claimed and in the
decision of which that government has a paramount sovereign right.
This results not only from the relation of a government to its citizens,
but from the fact that international law recognizes the right of each
state to prescribe the conditions of citizenship therein and regulate
for itself the process whereby foreigners may, if they so desire, expa-
triate themselves and become naturalized. In the United States this
process is defined by a statute, the administration of which is com-
mitted to the courts, who issue to the naturalized citizen certain evi-
dence of his compliance with the law. The efficiency of this law, the
basal principle of which is the voluntary action of the alien, is fully
recognized by all states that concede the right of expatriation, and
among these is Salvador.
" The principle and validity of our naturalization law being thus
admitted, it would seem that the mere question of its administration
and of the proper evidence of its administration was one for the deter-
mination of this Government. But by the matriculation law of
Salvador that Government is made the first and the final judge of the
sufficiency of the evidence of American citizenship, even in the case
of a naturalized citizen of the United States not of Salvadorian
origin. . . .
§483.] LOSS OF RIGHT TO PROTECTION. 793
" The effect of the Salvadorian statute in (luestioii is to inve^st the
officials of that Government with sole discretion and exclusive au-
thority to determine conclusively all questions of American citizenship
Avithin their territory. This is in contravention of treaty ri^ht and
the rules of international law and usage, and would he an abrogation
of its sovereign duty towards its citizens in foreign lands to which
this Government has never given assent."
Mr. Bayard, Sec. of State, to Mr. Hall, luin. to Cent. Ani., Nov. 20, 1880,
For. Rel. 1887, 78. For the text of the law. see id. CD.
Jan. 7, 1887, Mr. Hall addressed to Sefior Del^ado, Salvadorian minister
of foreign affairs, a note in the sense of the foregoing instrurtious.
(For. Rel. 1887, 111.)
For other cases inider this head, see infra, §§ ."»42, !)!!>.
" I do not believe that the fact of imposing upon foreigners the
obligation to matriculate leaves the determination of theii- nationality
to the arbitrament of the Salvadorian authorities.
"According to article 22 of the law referred to, the foreigner who
j)resents a certification of the respective diplomatic or considar
agent accredited in the Republic, in which it is set forth that tiie
party interested is a native of the country represented l)v such agent,
( r the authenticated passport upon which the applicant has entered
the Republic, or the certificate of naturalization, also duly authenti-
cated, has the right to be inscribed in the books of matriculates.
L>om this provision it is evident that it is exclusively the authorities
of the country to which the foreigner or the diplomatic or consular
agent in Salvador belongs who decide upon the question of nationality
or citizenship. The question once decided by those authorities or
agents and either of the documents just mentioned issued in favor of
the foreigner, the minister for foreign relations is under the ()J)ligalion
to matriculate him and to give him the corresponding certificate
thereof. I do not perceive, therefore, in what sense it can be said that
the question of the nationality of foreigners depends ui)on the deci-
sion of the Salvadorian authorities.
" The matriculation has for its object that the (lovernment may W
informed of the number of foreign residents in the country and of
their respective domicils in order that it may afford them due pro-
tection, and to avoid any act being committed against them which
might give rise to diplomatic intervention. The foreigner who (h)es
not comply with the obligation to matriculate, voluntarily i-cnoiinces
the benefits to be derived therefrom; this in no wise is opposed to
the rules of international law nor to the stipulations of ticatic^. On
the other hand, Salvador recognizes and has always recogni/ecl the
principle that a law can not alter in (he least the provisions of treaties,
and for the same reason if those with the United States or with any
794 NATIONALITY. [§483.
other friendly nation are opposed to the fulfillment of any of the
articles of the law relatin<j to forei^iers, such article will not be
enforced as regards that nation, and will Ix^ applied only to the citi-
zens of the states with which we have no such treaties.
'^ The first objection in regard to the matriculation of foreigners
having l)een answered, the second objection likewise disappears. Sal-
vador does not nor can not ignore the right of foreign Governments
to intervene in behalf of their subjects residing in the Republic; it
has done nothing more in the law referred to than to fix a condition
upon which foreigners who wish to reside in the country may enjoy
the so-called rights of alienage, among which is that of recourse to
their respective Governments, as that condition is legitimate and
expedient, and depends besides upon the free will of the foreigner,
Salvador in establishing it has made use of the natural rights that
all peoples of the world have to impose just conditions upon for-
eigners who wish to reside in their territory. The foreigner who
enters Salvador should know that to enjoy certain privileges he is
under the obligation to matriculate; if he does not, it is he who
tacitly renounces the right to invoke the protection of his govern-
ment; it is not the government which renounces the right to protect
him. . . .
" Notwithstanding the foregoing, my Government will bring your
esteemed note to the notice of the national assembly at its next meet-
ing, so that that high body, taking into consideration the observations
to which I have had the pleasure to refer, may be pleased to resolve
w^hatever may be expedient."
Senor Delgado, Salvadorian min. of for. aflf., to Mr. Hall, Am. min.,
March 28, 1887, For. Rel. 1887, 113, 114.
In ti'-ansmltting this communication to his Government, Mr. Hall said:
" In the meantime I learn that the Government has tiiken no steps to
carry out the law." (For. Rel. 1887, 111.)
" This Government has been constrained to enter earnest protest
against a recent decree of the governor-general of Cuba, ordering the
registration of all aliens in the island, and pronouncing all those not
registered within a certain time as debarred from appealing to the
provisions of existing law. The treaty rights of American citizens
obviously depend on their actual allegiance to their own Government,
not upon any arbitrary inscription as aliens by the state wherein they
may l)e sojourning; and while this Government is well di.sposed to
admit the convenience of the proposed registry as an additional evi-
dence of the right of such citizens in Cuba to the protection of the
authorities, and has signified its willingness to facilitate their regis-
tration, it can never consent that the omission of a merely local for-
mality can operate to outlaw an}^ persons entitled to its protection as
§ 4:84.] SEAMEN. 795
citizens, or to abrogate the right to the orderly recourses of Spanish
law solemnly guaranteed to them by treaty."
Report of Mr. Olney, Sec. of State, to the President, Dec. 7, 1890, For.
Rel. 1896, Ixxxvii.
XVI. SEAMEN.
§ 484.
" The general and uniform practice of our consuls to give certifi-
cates of citizenship, or protection, to our seamen, may, I think, be
very well considered as sanctioned by our Government, by implica-
tion, if it has not been done explicitly. The practice is certainly neces-
sary, and is strikingly proper in cases where the consul's interference
has procured the release of our impressed seamen; for without such
certificates they would be instantly exposed to a repetition of the
evil. Besides, multitudes of our seamen have gone abroad without
protections, or they have lost them; but still they were not to be
abandoned; and who in foreign countries have it in their power so
well to ascertain their citizenship as our consuls? The measure was
natural and necessary; and hence was practiced by the consuls of
other nations as well as our own."
Mr. Pickering, Sec. of State, to Mr. King, luin. to England, Oct. 20, 1790,
MS. Inst. U. States Ministers, III. 280.
" The circumstance that the vessel is American is evidence that
the seamen on board are such," and " in every regularly documented
merchant vessel the crew will find their protection in tlie flag that
covers them."
Consular Regulations of the United States of 1888. arts. 171, 172. cited in
Mr. Lee, consul-general at Havana, to Mr. Roclvhill. Assist. Sec. of
State, Oct. 21, 1800, For. Rel. 18!t(>. 740. in relation to one of the
prisoners of the American scliooner Contpctitor. See supra, § 317.
Certain claims were made against the Mexican (rovernment. grow-
ing out of the seizure of an American vessel and the iinj)risonmont of
the persons on board. The claims were presented by the (lovernment
of the United States, and were afterwards referred to an international
commission. In one of the claims, made in iK^half of a meniln'r of the
crew, proof of whose American citizenship was lacking, the umpire
held that the claim should be allowed, because (1) service on an
American vessel was some proof of American citizenshijx and {'2)
"seamen serving in the naval or mercantile marine under a flag not
their own are entitled, for the duration of that service, to the j)r()tec-
tion of the flag under which they serve."
Sir Edward Thornton, umpire. United States and Mexican Claims Com-
mission, convention of .Inly 4. 18<j8, Moore. Int. Arbitrations, III.
2530-2537.
796 NATIONALITY. [§ 484.
" The (luestion of tho care aiul relief of destitute seamen is one in
which this (lovernnient has from the earliest years of its history
evinced the liveliest interest. As early as 1702 Congress provided In
law for such relief to American seamen found destitute ill foreign
ports, and again in the years 1803, 1840, 1850 and 187*2, respectively,
acts of Congress were passed in relation to the same subject. These
several laws enacted by the legislature have received the most liberal
interpretati(m by the executive and judicial branches of the Govern-
ment, and the relief thus pi'ovided is now extended to all American
seamen found destitute in foreign countries, regardless of the nation-
ality of the vessel upon which they may have last served; and to all
seamen, of whatever nationality, who are found thus destitute, imme-
diately after having served on an American vessel."
Mr. F. W. Seward. Act. Sec. of State, to Chev. Tavora. Austro-IIunKarlan
mill., Aug. 13, 1877, MS. Notes to Austria, VIII, 155
See, to tlie same effect, Mr. Hill, Act. Sec. of State, to Mr. Choate, amb.
to England, No. 639, May 24, 1901, MS. Inst. Gr. Br. XXXIII. G12.
A Swede, serving as a seaman on an American vessel, was arrested
at Port au Prince on a charge of murdering a Haj^tian policeman in
a drinking house. As it was stated that he had gone ashore without
leave, he might, said the Department of State, " be reclaimed as a
deserter, but this right is subordinated to any claim which the justice
of Hayti may have uj^on him for violation of the laws of Ilayti.
If so accused, he has no exceptional right as an American seaman.
. . . Were he an American citizen, he would be entitled to all
the rights and guarantees of procedure due to any American citizen
under treaty stipulations. Being a Swede, his interests in respect of
nationality are under the care of the proper representative of his
country, to whom, as a matter of courtesy, you may, without objec-
tion, communicate the view above stated."
Mr. Bayard. See. of State, to Mr. Thompson, rain, to Ilayti, July 31, 1885,
MS. Inst. Hayti, II. 511.
In 1891, shortly after the attack on the sailors of the U. S. S.
Baltimore at Valparaiso, Chile, two British subjects named Patrick
Shields and Andrew^ McKinstry, who were serving as firemen on
board the American merchant steamer KciDeenaw^ claimed to have
been maltreated on shore by the police of Valparaiso, while the
steamer was lying in that port. It was alleged that the reason for
their maltreatment was that thej'^ were supposed to be American citi-
zens. Claims for their alleged maltreatment were presented to the
mixed commission under the convention between the United States
and Chile of August 7, 1892. The commission rejected the claims, on
the ground that the claimants were British subjects, its jurisdicti(m
being limited to claims of citizens of the United States and citizens
§484.] SEAMEN. 797
of Chile. Subsequently, the cases became the subject of conference
between the Secretary of State of the United States and the Chilean
minister at Washington, It was agreed, after an examination of the
cases, that the claim of McKinstry was unfounded. It appeared, be-
sides, that Shields had died in 1895, that he had never been liat-
uralized in the United States, and that his heirs were English. In a
memorandum communicated to the Department of State by the Chil-
ean minister it is stated that the Secretary of State had intimated
that, under these circumstances, the United States had no direct in-
terest in the matter, but wished, at the instance of the British Gov-
ernment, to cooperate in finding a satisfactory solution for the in-
terested parties. May 24, 1897, a protocol was signed by the Secre-
tary of State and the Chilean minister, by which it was agreed that
the Chilean Government should pay to the former the sum of $8,500
on " equitable considerations," such payment to constitute a complete
and final settlement of the claim.
For, Rel. 1891, 217 et seq. ; For. Kel. 1900, (i()-71 ; Mooro, Int. Arbitra-
tions, II. 1478.
" I have to acknowledge the receipt of your dispatch No. 44, of
the 25th ultimo, relative to the subject of Chinese sailors enlisted on
American merchantmen. You state that the customs authorities of
Hawaii have exacted of the captains of American vessels a fee or fine
of $25 for each Chinese coming there as a seaman in the service of tlie
ship, claiming that it was for watching him while there; but that on
your request the authorities have decided to refund the money so
exacted, and to discontinue the imposition of such a fee in the future.
You suggest a fear, however, that in case the captain of an American
vessel should desire to discharge a Chinese sailor in Hawaii the au-
thorities may require the captain to give a bond that the discharged
sailor shall only work on rice or sugar plantations, or tliat the vessel
will return him to the country whence he came; and you ask my in-
structions in the premises.
"In the late case of In re Koss (140 U. S, 472) decided by the
Supreme Court May 25, 1891, Mr. Justice Field, having untler con-
sideration the status of an alien enlisted on an American shi]). said:
" By such enlistment he becomes an American seaman — one of an
American crew on board of an American vessel — and as such entitled
to the ])rotection and benefit of all the laws i)assed by Congress on
behalf of American seamen and subject to all their obligations and
liabilities, , . . He could then insist upon trcatnicnl as an
American seaman and invoke for his protection all the power of (he
United States which could be called into exercis(> for the protect ion
of seamen who were native born, lie owes foi- that time to the coun-
try to which the ship on which he is serving belongs, a temporary
allegiance.
T98 NATIONALITY. [§484.
" So long as a Chinese remains an American seaman he is entitled
to the same protecting care of the authorities of the United States as
other American sailors. Our law recognizes the changed status of a
Chinese while a sailor, and it has been held that a Chinese seaman
coming into the ports of this country is not inhibited by the Chinese
exclusion acts from temporarily landing on shore without any at-
tempt to remain. (In re Moncan, 14 Fed. Rep. 44; In re Ah Kee,
22 Fed. Rep. 519.) But if such a person should not depart with his
vessel or with some other vessel in the ordinary pursuit of his voca-
tion upon the high seas, his presence in the country would become U!i-
lawful. And so, without respect to his status, so long as he remains
a sailor a vessel could not be permitted to discharge a Chinese in one
of our ports and leave him in this country in violation of our laws
prohibiting the importation of Chinese laborers.
" On the 25th of November last the British minister complained to
this Government that the authorities of the port of Baltimore had
warned the captain of the British ship Oxford^ lately arrived at that
port manned by a Chinese crew, that any member of the crew who
landed would under existing law be liable to arrest. The matter was
called to the attention of the Treasury Department, which, on the 2d
day of December, replied that it would ' instruct the collector of the
port that as the Chinamen are seamen their temporary landing for
the purposes of the vessel, without any attempt to remain in the
United States, may be permitted, but that care is to be taken that
they depart from the United States in the ship.'
" The present law of this country excludes Chinese laborers, and its
execution requires reasonable regidations. We can not deny the same
right to any other government. The proper distinction is whether
such regulations are a reasonable incident of such laws. The impo-
sition of a fine or fee under the circumstances and for the purposes
indicated in your dispatch does not seem to have been such a regula-
tion, and I therefore learn with pleasure that it is proposed to dis-
continue it. This Government, however, can not object to a regula-
tion prohibiting or regidating the discharge of Chinese sailors in
Hawaii which is general in its application and is warranted by the
laws of that kingdom."
Mr. Blaine, Sec. of State, to Mr. Steveus, niiu. to Iluwail, Feb. 25, 1892,
For. Rel. 1892, 343.
In December, 1893, some seamen belonging to the American schooner
Henry Crosby were fired upon, under the impression that they were
escaping criminals, by soldiers of the Dominican Republic. ^AHlien
the firing took place, the seamen were proceeding to the schooner in
a yawl. Two of them were wounded, and as to one of these tlie
Department of State said : " If Smith were an American citizen I
§484.] SEAMEN. 799
should say that he was entitled to the intervention of this Depart-
ment to secure an indemnity for his injuries. lie is not, however,
an American citizen, nor does he come within that statute which
provides that a foreigner serving as a seaman on an American vessel
shall be entitled to American protection, if he has declared his
intention to becoine a citizen; for it does not appear that he ever
made such a declaration."
-Mr. Uhl, Act. Sec. of State, to Messrs. Goodrich ct al.. April 10, 1804,
For. Rel. 180.5, I. 220, 2.'J1.
This ix)sition was realfiriiiea in n letter of Mr. Ulil. Act. Sec. of State, to
Mr. Fischer, M. C, Dec. (!, 1805, For. Kel. 1805, I. 2.'',.'}, 2:U.
Seamen born in the Philippine Islands hit not citizens of the
United States within the meaning of any statute concerning seamen
or any other statute of the United States.
Griggs, At. Gen., Feb. 10, 1001, 2.S Op.. 400.
" I have received your No. 511, of the IGth ultimo. You therein
inquire, with reference to the application of Joseph
Case of seaman's ^^ j^^^^ Ratcliffe to have his wife registered at the
wife. °
consulate-general at Kanagawa, whether protection
shall be granted in Japan to Japanese wives of seamen, not American
citizens, serving on American vessels. The case as presented in
your dispatch has had the Department's consideration.
" The first question that arises is whether a British subject who
has served seven years on an American national vessel, but who is
not shown to have taken any steps toward naturalization, is to 'be
regarded as an American seaman, and as such entitknl to protection
by the United States consular and diplomatic officers in the East.
Section No. 170 of the consular regulations for ISSS goes fai- to
settle this question. It provides that the term ' American seamen '
shall be held to include —
'"(1) Seamen, being citizens of the United States, regularly ^hijiped
in an American vessel, whether in a port of the United States or in
a foreign port;
" ' (2) Foreigners regularly shipped in an American vessel in a
port of the United States;
"'(3) Seamen, being foreigners by birth, reguhirly shi])pe(l in an
American vessel, whether in a port of the United States or a foi-cigii
port, who have declared their intention to b(>('oine citizens of (he
United States and have served three years thereafter on an .Vniciican
merchant vessel."
"It Avould seem from this that a foreigner, to come unih'r this
section, must have been regnhirly shi])ped in a port of the rnitcd
States (as to which in the present case there is no evi(h'nce before the
800 NATIONALITY. [§485.
Department), or have declared his intention of citizenship; and even
in such cases the citizenship so imputed is defined as ' within the
meaning of the laws relating to the discharge, relief, wages, and extra
wages of seamen.'
" It is true that in the case of John Ross (with which your legation
is familiar), a British subject, serving on an American vessel, who,
while on such vessel in the harbor of Yokohama, committed a crime,
was held by the Department to be subject to consular jurisdiction
at Yokohama; but between consular jurisdiction over an offense com-
mitted by a person while serving on an American ship and consular
jurisdiction over such a person as a permanent landsman the distinc-
tion is great. The first relates to the flag and its incidents; the
second relates to a ^^erson on shore as permanently detached from the
flag. The United States can sustain jurisdiction in the first case on
the ground that the flag imparts nationality. They can not sustain
jurisdiction in the second case, because, except in cases in Moham-
medan countries of protected foreigners, which exception is rigidly
marked, the only way, outside of the flag, of obtaining national pro-
tection is by naturalization. In the present case it is not alleged that
Ratcliffe has even attempted to obtain naturalization.
" It is not necessary to discuss the question whether Ratclifi'e's mar-
riage at Hongkong in 1887 is, on the principles determined by the
Department in this relation, to be regarded as valid in international
law. Assuming its validit}'^, the Department is clearly of opinion
that the woman claiming on this marriage to be his Avife is not
entitled, as such, to the protection now claimed, even supposing he is
entitled to such protection. Ratcliffe's only claim to protection would
be his distinctive character as a seaman ; and his wife can not be held
to take this character for the purpose of protection any more than she
could take it for the purpose of navigation."
Mr. Bayard. Sec. of State, to Mr. Hubbard, min. to Japan, Nov. 10, 1888,
For. Rel. 1888, II. 1079-1080.
XVII. CORPORATIONS.
§ 485.
See infra, §§ 984, 985.
Corporations, under the treaties between the United States and
Great Britain of 1788 and 1794, are entitled, in respect of security
for their property, to the same rights as natural j^ersons.
Society for the Propagation of the Gospel iK New Haven, 8 Wheat 464.
The treaty of Guadalupe Hidalgo between the United States and
Mexico makes no distinction, in the protection it provides, between
§•185.] CORPORATIONS. 801
the property of individuals and the property held by towns under
the Mexican Government.
Townsend v. Greeley, 5 Wall. 32(5.
The rule that a suit by or against a corporation in its corporate
name in a court of the United States is conclusively presumed to be
a suit by or against citizens of the State creating the cori)oi-ation.
does not apply to a limited partnership association organized under
the Pennsylvania statute of June 2, 1874, entitled "An act author-
izing the formation of partnership associations in Avhich tlie capital
subscribed shall alone be responsible for the debts of the association
except under certain circumstances."
Great Southern Fire Proof Hotel Co. r. Jones (1!X>0), 177 U. S. 449.
" There is an indisputable legal presumption that a State corpora-
tion, when sued or suing in a circuit court of the United States, is
composed of citizens of the State which created it. . . . That
doctrine began, as we have seen, in the assumption that State c()i*[)o-
rations were composed of citizens of the State which created them;
but such assumption was one of fact, and was the subject of nlU'gation
and traverse, and thus the jurisdiction of the Federal courts might
be defeated. Then, after a long contest in this court, it was settled
that the presumption of citizenship is one of law. not to be defeated
l)V allegation or evidence to the contrary. There we are content to
leave it."
St. Louis & San Francisco Railway Co. r. .Tames (lSi«;), 1(»1 U. 8. '>4i},
5G2-5(>3.
The rule that the stockholders of a corporation are. for purposes of
Federal jurisdiction, conclusively presumed to be citizens of the
State under whose laws the coriMM-ation was created, was questioned
or opi)osed to Strawbridge r. Curtiss. :? Cranch. l!iJ7: liauk of the
United States r. Deveaux, 5 Cranch, 84; Connuercial and Uailroa<l
Bank of Vicksburj; r. Slocomb, 14 Pet. CO. See. also. Hope Ins. Co.
V. Boardmau, 5 Cranch, ~u. These cases were reviewed and con-
trolled in 1844 in the case of Louisville Kailroad Co. r. Letson. 2
How. 407.
See, also, Muller r. Dowk. 04 V. S. 444; National Steamship Co. r.
Dryer, 1 Sup. C. K. 58; Ferry r. Imperial Fire Ins. Co.. 0 West.
Jur. 551.
A corporation under the laws of the State of Minnesota brought
suit against the United States in the Com-t of CMaims. undiM- the act
of March 3, 1801, 2G Stat. 851, in relation to the jjayiiicnt of Indian
depredation claims, for the value of certain horses and haine-s taken
or destroyed by Sioux Indians. The act authorized the pavment
only of " claims for property of citizens of the United State>." The
H. Doc. 551— vol 3 51
802 NATIONALITY. [§485.
Court of Claims found as a conclusion of law that the claimant, as
a Minnesota corporation, must be presumed to be a citizen of the
United States for the purposes of the action. The United States
appealed. The decision of the Court of Claims was affirmed.
Uniteil States v. Northwestern Express Co. (1897), 104 U. S. <580.
Mr. Justice White, deliveriuy tlie opinion of the court, ol)serve(l that Con-
gress had frequently in its legislation, as also had the treaty-making
power, used the words " citizens of the United States " as embracing
corporations created under State laws. This was the case in Revised
Statutes, sees. 2319 and 2321, relating to the purchase of mineral
deposits in public lands, and also under the French Spoliations Act
of January 20, 1885, 22 Stat. 283. In these cases Congress had
entered upon no inquiry as to whether the stockholders weie com-
posed in whole or in part of any but citizens of the United States.
So, in various treaties of the United States, the phrase " citizens of
the United States " had been used as including cori)orations, com-
panies, and private individuals. By the act of March 3, 1891, the
United States had designed to pay for injuries committed by the
Indians, Its wards. In order to make such restitution the word
" citizens " would require a construction embracing Federal and State
corporations, since redress nmst be denied unless the corporation
holding legal title to property might bring a claim for damages, the
stockliolders being legally incompetent to present such a claim. It
had l)een argued that, if coi'porations were embraced in the terms
of the act, an alien who was a corporator might be benefited. liut
the argument of inconvenience on this ground was overwhelmed by
the preponderance of inconvenience on the other side, for, while the
alien corporator might be an exception, the corporator who was a
citizen botli of the State and of the United States was the rule.
Henry Chauncey, a citizen of the United States, and two other
persons, also such citizens, made a claim against the Chilean Govern-
ment as surviving members of the firm of Allsop & Co. The claim
was based on alleged interference by the Chilean Government with
certain property or property rights, which Avere transferred in 1875
to that firm, and which, the firm having gone into liquidation, were
embraced in a contract of settlement in 1876 between the liquidating
partner of the firm and the Government of Bolivia. Subsequently,
on the death of the partner in question, Mr. Chauncey became the
liquidator of the firm, and as such liquidator he appeared as the firm's
representative in presenting the claim. It appeared that the firm
was formed in 1870 under the law's of Chile, with its domicil at
Valparaiso, and that it constituted under those laws a society of part-
nership en comandite, which constitutes under the law of Chile, which
is based on the civil laAv, a juridical person or entity distinct from its
individual members. On this ground it was held that the firm was
to be considered for international purposes as a citizen of Chile, and
was therefore incapable of ^jrosecuting through its representative
§ 485.] CORPORATIONS. 803
a claim against Chile as a citizen of the United States Ixifore an
international commission.
Henry Chauncey v. Chile, No. 3, United States and Chilean Claims Com-
mission (1901), fitlnj,' Code of Chile, tit. 28, art. 20r)3; Calvo. Droit
International, II. 227, 399 ; Smith r. McMicken, 3 La. Ann. 322 ; Liver-
pool Nav. Co. V. Agar, 14 Fed. Uep. Oir»; Wliarton's Int. Law Dig.
II. 528; Field's Int. Code, art. 545; Miillcr v. Dows, 94 U. S. 445;
Code of Belginni, art. 3 ; Lyon-Caen and Kenanit, Droit Commercial,
II. 241-243; the Cerruti Case, as presented in the Italian (ireeii Book,
March 13, 1900, and in Calvo, Droit International, III. 42(;.
A British railway corporation, considering itself aggrieved by the
action of the British colonial authorities, addressed a memorial to
the British Government. The Government of the United States was
'requested, in behalf of an American corporation, which was said to
own all the shares of the British corporation, to support the hitter's
memorial. The United States answered that the railway cc^mpany,
in whose name the memorial was presented, being a British corpora-
tion, could not call upon the United States to intervene in its l)ehalf
with the British authorities, l)ut that there was " a more substantial
reason for the refusal than that of the distinction between a cor}X)ra-
tion and its shareholders. It is an established pi'inciple tluit where
a State creates a corporation and confers upon it franchises and obli-
gations of an important puljlic character, such as the operating a
railroad, the company entrusted witli these privileges and duties is
not allowed, without the consent of the (Jovernment from which it
derives its existence, to transfer them to others. This general prin-
ciple may be to some extent evaded in the case of an incorporated
company by a transfer, not of the property itself, but of the shares
of stock in the corporation. But the mere transfer of shares between
individuals does not aifect the complete subjection of the corporation
itself to the Government which created it. That (iovernment still
retains all the powers of regulation and legislation in respect to the
corporation, its rights, privileges and franchises, which it would have
Iiad, had there been no transfer of shares. Any attempt at interven-
tion by the Government of i)ersous holding a portion or even the
Mhole of the shares of a corporation, with the Govennnent which
created it and within whose limits its operations are conducted, would
be an infringement of the i)rinciple aboNc I'efcired to."'
Mr. Uhl, Act. Sec. of State, to Mr. Wesson. April 29. 1S9.-. -jol MS. Doiii.
Let. (;9(>.
See Canada Sontliern Kailway r. Celthard (ISs:!). m'.> C. S. .V_'7.
A corporation organized in Great T^ritaiu. having its ])riu('i|i:il
place of business in that country, is not a sul)jcct of thai (•(•uutrv,
within the meaning of a treaty giving subjects of thai country the
804 NATIONALITY. [§ 480.
right to do business in any of the States of the United States on the
same terms as natives.
Scottish Union & Natiouiil Ins. Co. of Kdinlnirgh, Scotland, and Loudon^
England v. Ilerriott, 101) Iowa, (MtC, 80 N. W. r.<J5.
The Board of Harbor Works of Ponce, Porto Rico, a Spanish cor-
poration, became '" as between the United States and other govern-
ments, an American citizen," by virtue of the treaty of peace, by
which Porto Rico was annexed to the United States.
Mr. Hay, Sec. of State, to Sec. of War, March 27. 1900, 244 MS. Dom.
Let 41.
XVIII. CARE OF INDIGENT CITIZENS.
§480.
" There is no appropriation or authority for the relief by a diplo-
matic representative of a distressed citizen of the United States or
for furnishing him transportation home. The exception in the case
of seamen falls under consular administration."
Instructions to the Diplouuitic Ollicers of the United States, 1897, § 175,
1). 08.
See, to the same effect, JMr. Marcy, Sec. of State, to Mr. Jaclvson, diarge
d'affaires at Vienna, Jan. :n, 1854, II. Ex. Doc. 100, 33 Cong. 1 sess. 31.
Wliile the Federal and State Governments in this country make
provision for the care of all destitute, sick, or infirm persons within
their borders, without regard to nationality, no provision as yet
exists in most States, or under the Federal system, for the relief of
destitute, sick, or infirm citizens of the United States abroad.
Mr. Seward, Sec. of State, to Mr. Motley, min. to Austria, April 7, 1803,
MS. Inst. Aust. I. 184.
See, to the same effect, Mr. Seward, Sec. of State, to Mr. Fogg, July 28,
18<>4, MS. Inst. Switzerland, I. 14(; ; Mr. Fish, Sec. of State, to Mr.
Delfosse, Dec. 22, 18(i9, MS. notes to lU'lgium, VI. 244; Mr. Evarts,
Sec. of State, to Mr. Fish, March 5, 1880, MS. Inst. Switzerland, II. .37.
The Russian legation stated, in a note of April 12, 1872, that the'
Imperial (lovernment had issued a decree providing for the return
to their own country of the Russian indigent and sick abroad.
Mr. Fisli, Sec. of State, to Mr. Schirkoff, April 22, 1872, MS. Notes to
Kuss. Leg. VII. 07.
" Congress, from the l)egimiing of the Government, has wisely
made provision for the relief of distressed seamen in foreign coun-
tries. No similar i)rovision, however, has hitherto been made for the
relief of ciiizens in distress abroad^ other than seamen. It is under-
§486.] CARE OF INDIGENT CITIZENS. 805
stood to be customary with o(her govcrnnuMits to authorize consuls to
extend such relief to their citizens or subjects in certain cases, A simi-
lar authority, and an appropriation to carry it into eiiect, are recom-
mended in the case of citizens of the United States destitute or sick
under such circumstances."
President (irant, iuinual message, Dee. 2, 1S7:>, Hicliardson's Messages,
VII. 101.
" Instances of insanity on the part of citizens of the United States
abroad have, from time to time, been reported to this Dei)artment,
by ministers and consuls. When their friends here were known, they
were apprised of the case, that they might relieve the sufferer. When,
however, we could obtain no information as to those friends, or these
we-e unable to provide relief, the case has been reportcMl to the gov-
ernor of the State of which the patient might be a citizen, so that
proper relief might be atforded."
Mr. Evarts, See. of State, to :Mr. Sliislikiii. .Tan. S, 1879. MS. Notes to
Russia, VII. 2r).5.
Article III. of the treaty of amity and commerce Ix^tween the
United States and Switzerland of 1850 provides that citizens of the
one republic residing in the other, who shall desire to return to their
own country or who shall be legally sent thither by a judicial decision
or act of police, " shall be received at all times and under all circum-
stances . . . in the country to which they belong, and in which they
shall have preserved their rights in conformity with the laws thereof.''
In the case of Spitznagel in ISGl, and Zweifel in 1S(')4, the Swiss (lov-
ernment took the ground that this article did not require either con-
tracting party to provide for the return to its territory of its indigent
citizens, but only to receive them when sent back to their own coun-
try. The United States coincided witli this view, but took the
ground that, although neither ])arty might be recjuired to provide for
the return of its j)auper citizens, it miglit at least be asked to i)revent
the exportation of its paui)er citizens to the other country.
Mr. Evarts. See. of State, to Mr. Fish. No. i;!;>. Marcii .".. l,S.S(t. MS. Inst.
Switzerland, II. .'!T.
See, also, Mr. Day. Sec. of St.ite. to Mr. I'ioila. Swiss niin.. Nd. 17.'?. .Tune
25, 185)8. MS. Notes to Swiss Leg. I. .".(Ml. to the effect that the article
does not re(iuire either government to i.rovide for tiie wants of its
indigent citl/.(>ns residing within the JnrisdictioM of the other, or to
])rovide the means for tiieir retm-ii.
"While it may not be anticipated that ju<licial proceedings against
aliens in British jurisdiction will be conducted olhei'wise than in strict
conformity to law, and with every constitutional guarantee for the
fair trial and defense of the accused, yet it is the clear right and
806 NATIONALITY. [§ 486.
duty of tliis Governmont, and, iiuleo<l, of any Oovornment, to satisfy
itself that its citizens enjoy, whilst temporarily in foreign lands,
every right and [)rivilege before the bar of justice, and to see that
they are allowed the fullest means of defense. If, therefore, you
should find that any citizen of the United States, accused within
British jurisdiction of the commission of crime, should, by reason of
poverty or friendlessness, or any other cause, not be in enjoyment of
all the means of defense which the law assures to him, it is expected
that all will be done to aid him which can be done by the representa-
tives of the United States. No expense, however, can be incurred for
counsel or otherwise without the authorization of the Department,
which in an urgent case may be sought by telegraph."
Mr. Bayard, Sec. of State, to Mr. Lowell, min. to England, Apr. 10, 1885,
MS. Inst. Gr. Brit. XXVII. 440.
" The system of public charities in the United States is dependent
upon the administrative authority of the respective States and Terri-
tories, and the National Government has no jurisdiction over such
institutions. Moreover, there is no Federal fund whatever from
which the cost of medical treatment or transportation from Europe
of an insane pauper could be paid or ever has been paid.
" On the other hand, the patients found in the almshouses and
asylums throughout the United States comprise large numbers of
persons of foreign birth and nationality, who are not for that reason
sent out of the country, but are cared for by the authorities of the
locality in w^hich their illness happens to occur."
Mr. Bayard, Sec. of State, to Count Lippe-Weissenfeld, Aust. charge,
June 8, 1886, MS. Notes to Austria, VIII. 518.
With regard to an American citizen, a circus performer, who was
confined in a lunatic asylum at Lisbon, Mr. Bayard stated that any
remittance that his friends^ desired to send to pay his debts, or to pro-
vide for his transportation home, should be drawn payable to the
consul-general's order, but that it was impossible to bring him home
on a training ship, as suggested by the consul-general.
Mr. Bayard, Sec. of State, to Mr. Campbell, Aug. 5, 188G, IGl MS. Dom.
Let. 159.
"Applications have frequently been made to this Department by
State and municipal authorities in various parts of the country to
obtain the return to their native lands of foreigners wdio, through dis-
ease or misfortune, had become a public charge on the community,
but the reply has invariably been made that, as this Government has
no funds at its disposal for bringing back to this country an American
citizen who had become a public charge abroad, and had thus been
§486.] CAKE OF INDIGENT CITIZENS. 807
compelled to decline such requests when made by foreign govern-
ments, it could not ask a foreign government to assume this expense
in the case of one of its subjects or citizens who had become a public
charge in the United States."
Mr. Wharton, Act. Sec. of State, to Mr. Douglas, Nov. 28, 1891, 184 MS.
Doni. Let. 2-17.
In February, 1896, a discussion took place between the United
States and Germany as to one Jacob Franck, a seaman on a (Jerman
steamer, who had been discharged from that vessel or had deserted
from it in December, 1895, at Savannah, (ieorgia, and had beconu!
a public charge by reason of insanity. The German aml)assador
stated that no provision for his return was made by the Imijerial
laws. It seems there was a question as to liis citizenship. By the
laws and regulations of the United States, provision is made for the
relief of destitute or disabled American seamen in foreign lands by
the consular representatives of the United States where such sea-
men are found to be citizens of the United States, even though they
may have deserted.
The case was brought to the attention of the Secretary of the
Treasury, who held that Franck was not an alien inunigrant and
could not be returned to Germany under the inunigration laws, it
being impossible to eliminate from the case his character as a desert-
ing seaman. In this relation the attention of (he (Jerman ambassador
was called to article 14 of the treaty between the United States and
the German Empire of December 11, 1871, 'n relation to tlie delivery
of deserters, and it was suggested that although the article was ])er-
missive in form, it was framed on the assum])ti()n that each con-
tracting party would recover its deserters and not permit thcui to
become a charge upon a foreign community, and that the execution of
it in such a case w^as " an international obligation of comity as well as
a duty of humanity to the suiferer." Tlu? German ambassador sub-
sequently stated that the Imi)erial (iovcM-nnuMit was unable to regard
the article in question as imposing any obligation on (Jerman consuls
to take charge of seamen who wer(> desei'ters. lie also stated that
three years previously the Ignited States legation at Berlin " expressly
informed the foreign office that it declined, on j)rincii)le. to send
home at the expense of the United States destitute Americans who
were in German insane asylums."
For. Rol. 1890, 199-205.
" The Federal Government is without authority of law or appro-
priated funds to bring such [insane] persons back, even at the in-
stance of their relatives; but, on the other hand, it make- no deiiiaud
upon other governments to remove foreign lunatics who have been
808 NATIONALITY. [§ 480.
jidmittod to Stale or district asylums, confining itself in exceptional
cast\s to giving information through the dij)lomatic channel, in order
that the relatives may have the opportunity to care for the indi-
vidual."
Mr. Olney, Sec. of State, to Mr. IIenj;olin(llIer, Austrian niin., Jan. i:i.
1807. For. Uel. 1S!)7, i:5-14.
Mr. Ilongolnuiller, in a note to Mr. Sliernian, Secretary of State, May 10,
1807, stated that in all cases where American citizens had Itocoiue
insane in Austria thej- had been removed to the public asylums where
they had been treated and cared for, and that application for comi)en-
sation or for tlie removal of such persons to their homes had not
been made until sometime afterwards, and then through the diplo-
matic channel. The United States, said Mr. Hengelmiiller, had
referred to the fact that when the case was reversed and Insane
foreigners were admitted into American State or district asylums
the United States jiresented no claim for indemnity to their govern-
ments. In this relation, Mr. IlengelmuUer brought to the notice of
the Department of State the case of an insane iJerson, said to l>e an
Austrian subject, who was confinetl in a jail in Virginia as a lunatic,
and stated that his being confined in jail instead of being talvcn to
an ihsane asylum was not in harmony with the principles of humanity
or with the course pur.sued towards American citizens who had l>e-
come insane in Austria-Hungary. (For. Rel. 1807, 14.)
Nov. IG, 180G, Mr. Hengelmiiller renewed a request that Amalie or
Amalia Roeber, an insane inmate of the general hospital at Vienna,
be brought back to the United States. It appeared that she came to
the United States with an aunt when nine years old ; that in Sept.,
18G7, she married Emil Roeber, who in tlie following month, became
a citizen of the United States; and that she obtained a pa.ssi)ort
from the American legation in Vienna in 1SS8. It did not appear
when she went to Europe, nor where she last previously residetl,
though it was stated that she had lived partly in New York and
partly in Boston. But, said the Department of State, waiving the
question whether before she became insane she intende<l to return to
the United States, " it would necessarily have to be determined of
what State she was a resident before the authorities thereof would be
justified, if at all, in receiving her. If this cannot l)e definitely
shown, it naturally follows that neither the State of New York nor
that of Massachusetts c-an be rightfully expected to assume such a
charge. There is no Federal law or appropriation, moreover, under
which an insane citizen of the United States can be returned from
Europe to this country. If, therefore, the friends or relatives of the
person in question cannot be found, or will not have her removed,
the Department i)erceives no way in the present status of the case by
which a compliance with the reipiest of your Government can be
effected." (Mr. Olney, Sec. of State, to Mr. Hengelmiiller, Jan. 0,
1807, For. Rel. 1807, 11, 12; MS. Notes to Aust. Leg. IX. 202.)
A similar request was made by Mr. Hengelmiiller, Nov. 4, 180G. in the case
of Albert Levy, also an insane inmate of the general hospital at
Vienna. It ai)peared that he was naturalized at San Franciscx) ;n
1887, and that he had an American passport which was issued in
189G. The request was referred to the governor of California, who
§486.] CARE OF INDIGENT CITIZENS. 809
answered that the police authorities of San Francisco were uiial)le to
obtain any inforuiation concerning Levy excei)t that lie was tliouj;lit
to be of iinsomid mind when he lived there ; that he apparently had
no relatives in the United States ; and that he was understood to
have had an Austrian wife who did not accompany him to America.
The governor also said that the State of California could take no
action in the matter; that it cared for all dependent afflicted inhabit-
ants, but had no law to authorize the sending abroad for i)ersons who
would be a projier charge on the State if they resided within its juris-
diction. (Mr. Sherman, Sec. of State, to Mr. Ilengelmiiller, .June 18,
1897, For. Kel. 1897, 15.)
Feb. 15, 1889, Congress passed a bill appropriating $250,000 to on-
able the President to protect the interests of the United States and
to provide for the security of persons and joroperty of citizens of the
United States on the Isthmus of Panama, in such manner as he might
deem expedient. The immediate occasion of this aj^propriation was
the stoppage of work on the proposed interoceanic canal, by reason of
the failure of the French company, whereby from 12,000 to 15,000
men were thrown out of employment, a third of whom were said to be
American citizens. The Colombian Government, apprehensive last
the presence of a large number of unemployed and destitute men on
the Isthmus might give rise to grave disorders, appealed to foreign
governments to take away their destitute citizens. This appeal was
laid, before Congress, with special reference to the stipulations of
Art. 35 of the treaty of 1846, wdtli regard to the transit. By an ex-
ecutive order of February 26, 1880, issued in execution of the act in
question, the President directed the transportation to their homes of
American citizens who were destitute in the Department of Panama.
The act and the order were construed as warranting the furnishing,
where necessary, of subsistence to destitute citizens while awaiting a
vessel, and indispensable clothing suitable to the climate into which
they were going.
Congressional Record, Feb. 15, 1889, 50 Cong. 2 sess., pp. 19.3(]-1938; Mr.
Rives, Assist. Sec. of State, to Mr. Adamson, cons. gen. at Panama,
No. 18G, Feb. 19, 1889, 129 MS. Inst. Consuls, 25; Mr. Adee. Second
Assist. Sec. of State, to Mr. Adamson, No. 188, March 10, 1889. id. 235.
"As a sequel to the failure of a scheme for the colonization in
Mexico of negroes, mostly emigrants from Alabama under contract,
a great number of these helj)less and suffering people, starving and
smitten with contagious disease, made their Avay or were assisted to
the frontier, where, in wretched plight, they were quarantined by the
Texas authorities. Learning of their destitiite condition, I directed
rations to be temporarily furnished them through the War Depart-
ment. At the expiration of their quarantine they were conveyed by
the railway companies at comparatively nominal rates to their homes
810 NATIONALITY. [§486.
in Alabama, upon my assurance, in the absence of any fund available
for the cost of their transj)ortation, that I would reconnnend to Con-
gress an ap})ropriati()n for its payment. I now strongly urge upon
Congress the j^roprioty of making such an appropriation. It should
be remembered that the measures taken were dictated not only by
sympathy and humanity, but by a conviction that it was not compati-
ble with the dignity of this Government that so large a body of our
dependent citizens should be thrown for relief upon the charity of a
neighboring state."
President Cleveland, annual message, Dec. 2, 1895, For. Rel. 1895, xxx.
CHAPTER XI.
DOMICIL.
I. A SouBCE OF Civil Status, § 487.
II. Belligerent Domicil, § 488.
III. Thkasiieb's Case, § 489.
IV. The Koszta Case.
1. Marcy-IIulsenmnn Corrosi)Oiiclence, § 490.
2. Interpretations, § 491.
I. A SOURCE OF CIVIL STATUS.
§ 487.
By a person's domicil is meant, generally speaking, his permanent
home. It is the criterion, in English and American law, of civil as
distinguished from political status. The case is the same in the law
of other countries, though not of all. In Italy, for example, civil
status follows the political ; and so it does to a great extent in France,
and in countries which, like 15elgium, have followed the French civil
(;()de. It is not, however, conversely true that in countries where civil
status is derived from domicil the political status follows the civil.
In such countries the two conceptions are distinct, neither Ix^ing de-
pendent upon the other. In primitive times it was not so. In days
when the people were generally attached to the soil, when individuals
traveled little and seldom changed their abode, domicil was the
general criterion of status, political as well as civil, if, indeed, it
can be said that such a distinction then existed. But, with the
passing away of the feudal system and the rise of the modern national
state, together with the coincident development of commerce and
industry, political allegiance — allegiance to the nation — became, as a
distinct conception, the test of national character, while domicil,
whether national or quasi-national, or merely municipal, remained
the test of rights in civil relations.
As the test of civil status, domicil directly affects a person's civil
rights and obligations, in respect of personal capacity, legitimac}^
intestacy, and various other matters. It may also materially affect
the extent of his liabilities, as in matters of taxation; for, while all
persons within the jurisdiction of a state owe obedience to its laws,
those who live continuously under their protection may. by so doing,
reciprocally acquire rights and incur obligations more extensive
811
812 DOMiciL. [§487/
than pertain to nioroly transient persons. These things lielong, how-
ever, chiefly to the domain of ])rivate international law, and are pri-
marily of juridical rather than of political cognizance. In consonance
with this principle, it has often been argued that political interven-
tion should be sparingly granted to citizens who complain of the
action of the tribunals of a foreign country in which they are domi-
ciled. Sometimes the argument has been carried further; so far,
indeed, as to treat the assumption of a foreign domicil as a renun-
ciation not only of the right to intervention, but also of national
allegiance — in other words, as an act of complete expatriation. This
view is believed to be exceptional, and, unless under peculiar cir-
cumstances, scarcely capable of justification on modern principles.
In only one particular is domicil generally admitted to determine
national character, and that is in nuitters of prize, where, the object
being to strike at the enemy's resources, all persons settled in the
enemy's coimtry are held to be tinctured with his belligerent char-
acter, so far as concerns their trade, so that their pro^jerty may be
captured on the high seas as enemy property. This doctrine is
known by the title " belligerent " or " commercial " domicil ; and
its reason and object are further characterized by the circumstance
that the courts have not always exacted, as a condition of the status
thus described, the same intention of permanent residence as in
cases of domicil in the ordinary sense. On the contrary, there has
been a tendency to treat persons as having a belligerent domicil
because they are found to be in fact inhahitants of the enemy's
country.
Belligerent domicil, in giving a national character in matters of
prize, w^orks no change of allegiance. Not only is there an entire
agreement on this point, but it is frequentlv stipulated by treaty
that, if war should break out between the contracting parties, the
citizens of each residing in the territories of the other shall be per-
mitted quietly to remain there, paying obedience to the laws. It
is obvious that nations do not by such stipulations intend in case
of war to release their citizens from their allegiance, nnich less to
transfer it from the one to the other; nor yet to interfere with the
usual operation of the law of prize. The complete dissociation of
the special national character, derived from belligerent domicil,
from the general and paramount national character, derived from
political allegiance, is also well exemplified by the ruling of the
Knglish and American courts that the ])roperty of a person engaged
in trade in a belligerent coinitry may be captured as enemv's prop-
erty, even though such person be a fonMgn consul.
In Guier v. O'Daniel (180C)), 1 Binney, rUl) n.. domicil is defined as
"a residence at a particular place. ac('om])anied Avith positive or
j)resumptive proof of contmuing it an unlimited time." This defini-
§487.] A SOURCE OF CIVIL STATUS. 813
tiou is substantially adopted by Philliniore." Story defines the term,
" in its ordinary acceptation," as " the place where a person lives or
has his home ; " and, in " a strict and legal sense," as the place " where
he has his true, fixed, permanent honie, and principal establishment,
and to which, wdienever he is absent, he has the intention of return-
ing." ^ This definition has been Avidely accepted by the courts. The
phrase, " principal establishment," was and is employed in the civil
code of Louisiana. Wharton defines domicil as " a residence acquired
as a final abode." '^
To acquire domicil in a place, there must be (1) residence, and (2)
an intention to remain permanently or indefinitely. Where the physi-
cal facts as to residence are not disputed, the sole question is that of
intention.
See, more fully, as to doiulcil, Dicey on Domicil ; Dicey on the Conflict of
Laws, with American Notes by J. B. Moore : and Jacobs' Law of
Domicil.
In the American cases a distinction is sometimes made, implicitly
as well as explicitly, between domicil with reference to an independent
country, and domicil with reference to a political division of a coun-
try. The former is called national domicil; the latter, municipal
domicil. Jacobs, in his excellent work, also uses the term quasi-
national domicil, to indicate " that domicil which has for its seat a
quasi-autonomous state, such as the States of this Union, or the vari-
ous countries and colonies composing the realm of Great Britain." <*
In discussing quasi-national domicil, however, the courts generally
speak of " national domicil." But, in the case of municipal domicil,
there is a tendency to give greater weight to mere residence or per-
sonal presence, and to recognize more readily a change of domicil,
than in the case of national domicil ; and to a less extent the same
tendency may be observed in respect to quasi-national domicil.
See Dicey's Conflict of Laws, Moore's American Notes, 158.
Where a domicil is established in a particuhir i)hice, it continues
there till a new domicil is acquired.
Price V. Price, ino Pa. St. 017, L'7 Atl. 201 ; Cooper r. Beers, 14:5 111. 25,
33 N. E., ()1 ; Cobb r. Rice, 130 Mass., 231 ; Reeil's Ai)i)eal, 71 Pa. St.,
378; Cruger r. Phelps, 47 N. Y. S. Gl, 21 Misc., 2.52.
Kosciusko's " declarations that his residence was in France, in
(he way they were nuide in his wills, with an interval of ten years
between them, Avould, upon the authority of adjudged cases, be suf-
ficient to establish, pnnia facie^ his domicil in France. Such declara-
« Law of Domicil. § .w. ; 4 Int. Law, § xllx.
6 Conflict of Laws, § 41.
c Conflict of Laws, § 21.
(iLaw of Domicil, §§ 77, 207, 362.
814 DOMiciL. [§ 487.
tions have always been received in evidence, when made previous to
the event which jj^ave rise to the suit. They have In^en received in
the courts of France, in the courts of En<i^huid, and in those of
our own countr3\ . . . Kosciusko's doniicil of origin was Lithu-
ania, in Pohuid. The presumption of the hiw is that it was retained,
unless the change is proved, and the burden of proving it is u])<)!i
him who alleges the change. (Somerville v. Sonierville, 5 Vesey,
T87.) . . . But what amount of proof is necessary to change
a domicil of origin into a prima facie domicil of choice? It is
residence elsewhere, or where a person lives out of the domicil
of origin. That repels the presumption of its continuance, and
casts uj^on him who denies the domicil of choice the burden of
disproving it. Where a person lives is taken prima facie to be his
domicil, until other facts establish the contrary. . . . It is dif-
ficult to lay down ^\\y rule under which every instance of resi-
dence could be brought, which may make a doniicil of choice. But
there must be, to constitute it, actual residence in the place, with the
intention that it is to be a principal and permanent residence. That
intention nvAj be inferred from the circumstances or condition in
w^hicli a person may be as to the domicil of his origin, or from the seat
of his fortune, his family and pursuits of life. ... A removal
which does not contemplate an absence from the former domicil for
an indefinite and uncertain time is not a change of it. But when
there is a removal, unless it can be shown, or inferred from circum-
stances, that it was for some particular j^urpose, expected to be only
of a temporary nature, or in the exercise of some particular profes-
sion, office, or calling, it does change the domicil. The result is that
the place of residence is prima facie the domicil, unless there be some
motive for that residence not inconsistent with a clearly established
intention to retain a permanent residence in another place."
Ennis v. Smith, 14 How. 422, et seq.
With regard to an act of the Colombian Congress, in 180G, which
undertook to define, among other things, " the circumstances which
are to afford a presumption of the purpose of a foreigner to become
domiciled " in that country, Mr. Seward said : " One of these [cir-
cumstances] is marriage with a native and two years continuous resi-
dence. The time and circumstances which constitute the legal domi-
cil of a foreigner have usually been a subject of judicial decision, and
as such it varies according to the facts of the case. The right of a
government to define such domicil by municipal law can not be ques-
tioned. Such a i-ight can only be relinquished or modified by treaty.
The definition by statute may seem arbitrary: but if a foreigner goes
to or stays in a country where it prevails he can not reasonably com-
plain, especially if it should be impartially executed. Of course in
§487.] A SOURCE OF CIVIL STATUS, 815
this respect we can not submit to any discriiuination against citizens
of the United States."
Mr. Seward, Sec. of State, to Mr. Burton, miu. to Colombia, No. 15.5,
Sept. 27, 186G, MS. lust. Colombia, XVI. 200.
Citizens of the United States residing in countries where they enjoy
extraterritoriality, thus living more or less under the protection of
their own government and being answerable to its laws, " are gener-
ally held to retain their American domicil."
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, cons, general at Apia,
March 6, 1888, S. Ex. Doc. 31, 50 Cong., 2 sess. 34.
The domicil of a married woman is, as a rule, the same as that of
her husband, and changes with it.
Anderson r. Watt, 138 U. S. (591 ; Howland v. Granger, 45 Atl. 740.
See Matter of Florance, .54 Ilun (N. Y. ) 328. But a wife may, after judi-
cial separation from her husband, choose a domicil for herself (Bar-
ber I'. Barber, 21 How. 582; Hunt i\ Hunt, 72 N. Y. 217) ; or may
gain an independent domicil after being abandoned by her husband,
(Greene v. Windham, 13 Me. 225; Shute v. Sargent, 3G Atl. 282.)
A wife can not create a claim to an independent domicil by abandoning,
without cause, the domicil of her husband, but may otherwise acquire
a separate domicil for divorce purposes. (Ilarteau r. Ilarteau, 14
Pick. 181; Chapman r. Chapman, 129 111. 38(;, 21 X. E. 8()a; Mellen v.
Mellen, 10 Abb. (X. Y.) X. C. 329, and note, pp. 333-342, reviewing
the decisions.)
The domicil of a widow is presumed to be that of her deceased hus-
band, unless she has exercised the right to change it.
Pennsylvania v. Ravenel, 21 How. 103.
The domicil of a minor is the same as, and changes with, that of the
father.
Lamar r. Micou. 112 U. S. 452; AUgood r. Williams, 92 Ala. 551, 8 So. 722.
See In re Vance. 92 Cal. 195, 28 I'ac. 229.
The domicil of a minor whose father is dead is the same as, and
changes with, the domicil of tlie mother, so long as she renuiins a
widow.
Kennedy r. Kyall. ()7 X. Y. .379.
It is not changed by her marrying again and actiuiring the domicil of
another husband. (Lamar r. Micou, 112 I'. S. 4.52.)
See Marks r. Marks. 75 Fed. Uep. :{21.
As to the power of a guardian to change the domicil of liis ward,
the following propositions have been laid down:
'*A testamentary guardian nominated by the fallier may have the
same control of the ward's domicil that the father had . . . ^Vnd
816 DOMiciL. [§ 488.
any guardian, appointed in the State of the domicil of the ward, has
been generally held to have the power of changing the ward's domicil
from one county to another within the same State and under the
same law. . . . But it is very doubtful, to say the least, whether
even a guardian appointed in the State of the domicil of the ward
(not being the natural guardian or a testamentary guardian) can
remove the ward's domicil beyond the limits of the State in which the
guardian is appointed and to which his legal authority is con-
fined . . . And it is quite clear that a guardian appointed in a
State in which the ward is temporarily residing can not change the
ward's permanent domicil from one State to another."
Lamar v. Micou, 112 U. S. 452, 471, 472.
See Lamar v. Micou, 114 U. S. 218, 5 Sup. Ct. 857; In re Ilenning's
Estate, 128 Cal. 214 ; Peacock v. Collins, 110 Ga. 281.
II. BELLIGERENT DOMICIL.
§ 488.
"A person found residing in a foreign country is presumed to be
there anhno manendi^ or with the purpose of remaining; and to
relieve himself of the character which this presumption fixes upon
him, he must show that his residence was only temporary, and accom-
panied all the while with a fixed and definite intention of returning.
If in that country he engages in trade and business, he is considered
by the law of nations as a merchant of that country ; nor is the pre-
sumption rebutted by the residence of his wife and family in the
country from which he came. This is the doctrine as laid down by
the United States courts. xVnd it has been decided that a Spanish
merchant, who came to the United States and continued to reside here
and carry on trade after the breaking out of war between Spain and
Great Britain, is to be considered an American merchant, although
the trade could be lawfully carried on by a Spanish subject only."
Reixirt of Mr. Webster, Sec. of State, to the Tresitlent, in Thrasher's case,
Dec. 23, 1851, (> Webster's Works, .521, 524; S. Ex. Doc. 5, 82 Cong.
1 sess. ; II. Ex. Docs. 10, 14, 32 Cong. 1 sess.
See Lawrence's Wbonton (18<3.'i), 176; Lawrence's Com. sur droit int.
III. 138; Moore, Int. Arbitrations, III. 2701-2703.
See, further, supra, § 4G8 ; infra, § 489.
" TlVe highest judicial tribunals of this country, as well as those of
the principal powers of Europe, have deliberately decided, after
elaborate argument, that merchants domiciled and carrying on busi-
ness in a country at war with another must be regarded as enemies.
This rule has even been applied [by the courts of the United States]
§■189.] thrasher's case. 817
to citizens of the United States engaged in commerce in an enemy's
country."
Mr. Marcy. Sec. of State, to Baron Gerolt, Prussian luiu., Feb. 15, 1854,
MS. Notes to Prussian Leg. VII. 10.
III. THRASH ER'ii CASE.
§ 489.
Two cases have been cited as the ground of intimations now and
then made that domicil may or should, even apart from matters of
prize, to some extent, not definitely expressed, supplement, and
indeed supplant, allegiance as the test of national character, and thus
serve as the basis of diplomatic intervention. One of these cases is
that of John S. Thrasher, the other that of Martin Koszta. In
regard to both, grave misapprehensions have at times prevailed.
These misapprehensions, in Thrasher's case, have been due not only to
the fact that Mr. AVebster''s famous report of December 28, 1851, written
in response to a resolution of Congress and embodying a hypothetical
opinion, was innnediately published, while a later j^aper, in which,
upon fuller information, he reached a different conclusion, remained
for many years unknown, but also to the failure to observe either the
exact purport of Mr. Webster's reasoning or the circumstance that,
when he spoke of domiciliation, he referred to something which,
although it did not necessarily presuppose the existence of domicil,
Avent in some respects beyond it. In Koszta's case the misapi)rehen-
si(Jiis seem in great part to have been due to a want of familiarity
with the circumstances of the transaction, as Avell as with the text of
Mr. Marcy's celebrated paper, except, perhaps, as it may be found in
extracts which, when torn from the context, serve chiefly to mislead.
The early published report in Thrasher's case related to the ques-
tion 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 1850. It appeared
that he had taken out letters of domiciliation in Cuba, and there was
reason to believe that he Avas also domiciled in the island. The proc-
ess of obtaining such letters involved the taking of an oath of alle-
giance, wiiich it was thought might have had the effect of making
him a Spanish subject and dissolving his allegiance to the United
States. But, even assuming that this was not the case, Mr. Webster
argued that if he was domiciled in Cuba he was, as a permanent resi-
dent, peculiarly subject to the operation of the laws there, and could
not ask the TTnited States to^ intervene to prevent the imposition of
any penalties which he might justly have incurred by the violation
of those laws. In this relation Mr. Webster said:
H. Doc. 551— vol 3 52
818 DOMICIL. [§480.
" Tlie general rule of the public law is, that every person of full
age has a right to change his doniicil ; and it follows, that when he
removes to another place, with an intention to make that i)iiice
his permanent residence, or his residence for an indefinite period, it
becomes instantly his place of domicil; and this is so, notwithstand-
ing he may entertain a floating intention of returning to his original
residence or citizenship at some future period. The Supreme Court
of the United States has decided ' that a person who removes to a
foreign country, settles himself there, and engages in the trade of the
country, furnishes by these acts such evidences of an intention per-
manently to reside in that country, as to stamp him with its national
character;' and this undoubtedly is in full accordance with the sen-
timents of the most eminent writers, as well as with those of other high
judicFal tribunals on the subject. No government has carried this
general presumption farther than that of the United States, since
it is well known that hundreds of thousands of persons are now living
in this country who have not been naturalized according to the pro-
visions of law, nor sworn any allegiance to this Government, nor
been domiciled amongst us by any regular course of proceedings.
What degree of alarm would it not give to this vastly numerous class
of men, actualh^ living amongst us as inhabitants of the United
States, to learn that, by removing to this country, they have not trans-
ferred their allegiance from the governments of which they were
originally subjects to this government? xVnd, on the other hand,
Avhat would be the condition of this country and its government, if
the sovereigns of Europe, from whose dominions they have emigrated,
were supposed to have still a right to interpose to protect such inhab-
itants against the penalties which might be justly incurred by them
in consequence of their violation of the laws of the United States?
In questions on this subject, the chief point to be considered is the
animus riianenfli, or intention of continued residence; and this must
be decided by reasonable rules and the general principles of evidence.
If it sufficiently appear that the intention of removing was to make
a permanent settlement, or a settlement for an indefinite time, the
right of domicil is acquired by a residence even of a few days."
Again, in the same paper, Mr. Webster said: " Xo man can carry
the segis of his national American liberty into a foreign country, and
expect to hold it up for his exemption from the dominion and
authority of the laws and the sovereign power of that country, unless
he be authorized to do so l)y virtue of treaty stipulations."
These passages certainly involve no new doctrine. They merely
lay down the familiar and fundamental rule of the supremacy of
the territorial jurisdiction, with an accentuated affirmation of its
peculiar applicability to permanent dwellers.
§489.] thrasher's case. 819
As to the other question, Mr. Webster, on fuller information, de-
cided that the taking out of letters of domiciliation did not involve
expatriation nor deprive Mr. Thrasher of the right to claim the
privileges secured to citizens of the United States by the treaty of
1795.
See, supra, § 4G8; Webster's Works, VI. 521, 52.3, 528; S. Ex. Doc. 5, 32
Cong. 1 sess. ; II. Ex. Docs. 10, 14. 32 Cong. 1 sess. ; Mr. AVebster, Sec. of
State, to Mr. Sharkey, consul at Havana, No. l(j, July 5, 18.52, 14 MS.
Desp. to Consuls, 34G; Mooi'e, Int. Arbitrations, III. 2701, where Mr.
Webster's instruction to Mr. Sharkey, of July 5, 1852, conveying his
final opinion on the question of domiciliation, is given in a suniiiiary
of the great argument on domicil, by J. Ilubley Ashton. esq., before"
the Mexican Claims Conunission under the treaty of July 4, lS(i8.
" I am directed to inform you that, agreeably to your wishes, the U. S.
consul-general in Cuba has been instructed to renew the retpiest
heretofore made by his predecessor for copies of certain paiiers relat-
ing to your trial and imprisonment in Cuba by the Spanish authori-
ties." (Mr. Appleton, Assist. Sec. of State, to Mr. Thrasher, Jan. 21,
1859, 50 MS. Dom. Let. 9.)
In 1866 the Colombian Congress undertook by statute to define the
rights and duties of aliens. By the second section, it was declared
that aliens domiciled, and not merely transient, in the country shoidd
" enjoy the same civil rights and guarantees and be subject to the
same obligations as to person and property as Colombians," To the
general principle thus laid down, Mr. ScAvard i)erceived no objection,
in view of the right of jurisdiction possessed by states over all persons
within their territory, except where such jurisdiction is relinquished,
as in the case of Mohammedan countries. The act also provided,
however, that domiciled aliens should enjoy the exemptions to Avhich
they might be entitled by public treaties; and in this relation Mr.
Seward called attention to Art. XIII. of the treaty of 181(3, Avhich,
although it did not provide for any exemptions from the local law^,
stipulated that the contracting parties should each extend to the
citizens of the other within its territories '" si)ecial protection,"
Avhether they Avere '' transient or dwelling thercMn." Mr. SeAvard
intimated that this stipulation piecluded the C\)l()nil)ian (jOA^ernment
from draAving " a distinction betAveen our citizens avIio are connnorant
and those Avho are only transiently in that country."
Mr. Seward, Sec. of State, to Mr. Burton, min. to Coloml)ia. No. 155, Sept.
27, 1S()(;, MS. Inst. Colombia, XVI. 200.
Where a British subject, for Avhose killing by a local officer in Xcav
Mexico a dii)l()nintic claim for damages had been made, aj^peared
to have been domiciled in that Territory, it Avas suggested that as he
Avas not, so far as concerned '* the administration of (he judicial
function there, a foreigner," and as his personal estate, if he died
820 DOMiciL. [§ 490.
intestate, would be distributed in accordance witli local law, his '' rep-
resentatives ■' had "' no title to the intervention of a foreign sover-
eign.''
Mr. IJayard, Sw. of State, to Mr. Wost, Hrit. iiiiii.. June 1, 1885, For.
Uel. 1885, 450, 459.
This case is cited in Mr. I'ortt'r, Act. Sec. of State, to Mr. Burt, July 11.
1885, 15G MS. Doiu. Let. 2:i2.
IV. THE KOSZTA CASE.
1. Mabc'Y-IIulskmann Cokkesponuence.
§490.
"The undersigned, charge d'affaires of his Majesty the Emperor
of Austria, has been instructed to address this official
Mr. Hiiisemann'Sj^Qt^, to the honorable Secretary of State, in relation
' 'to the difficulties which have occurred between the
agents of the two Governments at the port of Smyrna.
" The facts which came to pass on that occasion are of public noto-
riety, and the undersigned thinks he may confine himself in his com-
ments thereon to the most prominent points. Our consul-general, Mr.
de Weckbecker, exercising the right of jurisdiction which has been
guaranteed by treaties to the consular agents of Austria in the East
relative to their countrymen, had caused to be arrested, and conveyed
on board the Austrian brig-of-war ' Huszar.' the Hungarian refjigee,
Martin Koszta; who, residing at one time in the interior at Kutahia,
had left Turkey, in company with Kossuth, and who, after having
pledged himself in writing not to set foot again on Ottoman territory,
broke that pledge by returning some months since to Smyrna. This
arrest gaAe cause to some reclamations which Mr. Offley, United States
consul, conjointly with the connnander of the American sloop-of-Avar
' St, Louis,' anchored in the roads before Smyrna, deemed it incum-
bent upon themselves to address to ISIr. de Weckbecker, basing their
demands upon the fact that the aforesaid Koszta, having, according
to them, caused himself to be naturalized in the United States, was
entitled to the protection of the American authorities. Upon this,
the consul-general of the Emperor, accompanied by the American
consul and the American commander, repaired on board the ' Huszar,'
and these two functionaries had it in their power to convince them-
selves, from the declarations of the prisoner himself, that the latter
had not acquired the quality of citizen of the United States, and that
he was not even provided with an American passport.
" On his own part, the charge d'affaires ad interim of the United
States at Constantinople addressed a connnunication, on the 27th of
June, to the Imperial Internuncio (minister), the object of which was
§490.] THE KOSZTA CASE. 821
to ask for the release of Koszta, upon the pka that he had taken some
steps to be admitted as an American citizen. Baron de Briick replied
to this request on the same day, refusing to comply with it. Two
days after, Mr. Brown returned again to the charge, by forwarding to
Mr. de Bruck a copy of a declaration purporting to have been signed
by Koszta, in New York, on the 31st da}- of July last, and which the
charge d'affaires of the laiion seems to regard sufficient to imply
the naturalization of that refugee in America. . . . Even ad-
mitting the authenticity . of this declaration, and supposing that
Koszta could, without violating the laws of his country of his own
accord, and without any other formalities, have broken asunder the
ties which bind him to his native soil, the text of the document shows
that the author of it has done nothing more than to declare his inten-
tion of becoming a citizen of the United States, and, with that object
in view, of renouncing his rights of nationality in the States of the
Emj)eror.
" A few days later, a new and lamentable episode occurred to aggra-
vate the question. On the morning of the 2d of July, the commander
of the American sloop-of-war ' St. Louis,' Mr. Ingraham, sent a mes-
sage to the commanding officer of the ' Huszar,' to the eifect that, in
pursuance of instructions received fl'om the charge d'affaires of the
United States at Constantinople, he had to call upon him to deliver
the aforesaid Koszta into his hands; adding that if he did not receive
a satisfactory answer by 4 o'clock in the afternoon, he should cause
the prisoner to be taken away by main force. As it was reasonable
to expect, our commander, instead of complying with this request,
prej^ared himself to repulse force by force; and when, at the hour
designated, the American commander, getting ready to carry out his
threat, ranged himself alongside our vessel and brought his guns to
bear upon the Imperial brig, and was about to carry matters to the
last extremity, our brave sailors, although nuich inferior in num-
bers, were determined to oppose a vigorous resistance to the act of
aggression which was on the point of being consummated in the
neutral port of Smyrna, and on the part of a vessel of war belonging
to a power with which Austria was at peace. Our consul-general
only succeeded in preventing this bloody catastrophe, Avhich would
probably have ended in the destruction of a consideral)le portion of
the town of Smyrna, and of vessels of all nations in the harbor, by
consenting that Koszta should temporarily, and until the settlement
of the difficulties of which he was the subject, be confided to the
custody of the consul-general of France, at Smyrna. . . .
" In our opinion, Koszta has never ceased to be an Austrian sub-
ject. Everything combines to make the Imi)erial (lovernuient per-
sist in this estinuite of the matter. Tlie laws of his c(Mintrv are
opposed to Koszta's breaking asunder of his own accord, and without
822 noMiCTL. [§ 490.
having obtaini'd pcnuission to expatriate liinisclf from tlio authori-
ties of that countrv, the ties of nationality which bind him to
it. . . . The undersigned thinks he may dispense entering into
any further details in regard to this question, seeing that the Depart-
ment of State of the United States constantly refuses to grant pass-
ports to individuals who find themselves in this category, and that
official ])ul)licati()ns have been made from time to time to that effect.
"As there can be no doubt, therefore, concerning the question of
nationality, the consul-general of the Emperor at Smyrna was with-
out doubt perfectly justified, when, in virtue of those treaties, which
subject Austrian subjects in Turkey to consular jurisdiction, he
seized the person of Koszta within the pale of his jurisdiction.
" Such being the case, the Imperial (lovernment trusts that the Gov-
ernment of the United States will hasten to instruct its consul at
Smyrna not to interpose any obstacle to the extradition of the afore-
said Koszta by the consul-general of France to the consul-general of
Austria at Smyrna.
" But, apart from this question of jurisdiction, it is especially the
mode adopted by the functionaries of the United States, in order to
settle the matter, which has given the Imperial Government the most
legitimate grounds of complaint.
" The act of violence which the commander of the sloop-of-war ' St.
Louis ' committed against the Austrian brig ' Huszar ' — that real act
of war, committed in full peace, in a neutral port, the fatal effects of
which were only averted by the prudence and moderation of our con-
sul-general at Smyrna — constitutes an outrage upon the principles
of the law of nations; and the Imperial Government has no doubt but
that this act, viewed in such light, will have been condemned by the
Government of the United States, said Government being itself inter-
ested in preventing the repetition of similar occurrences.
" The events of the second of July at Smyrna present in a twofold
point of view^ a serious deviation from the rules of international law.
"' 1st. The commander of the United States sloop-of-war ' St.
Louis' threatened the brig of His Imperial and Eoyal Apostolic
Majesty, the ' Huszar,' with a hostile attack, by bringing his guns to
bear upon the latter, and by announcing, in writing, that if a certain
individual detained on board, whose nationality was being discussed
between the agents of the two Governments, was not delivered over to
him at a stated hour, he would go and take him by main force.
" There can l)e no doubt but that the threat of attacking, by main
force, a vessel of war belonging to the military marine of a sovereign
state whose flag she carries, is nothing else than a threat of an act of
war. Now, the right of making war is necessarily, and from the very
nature of that right, inherent in the sovereign power.
§490. 1 THE KOSZTA CASE. 823
" 'A right of so momentous a nature,' says Vattel (Law of Nations,
vol. 2, book 3, chap. 1, § 4) 'the right of judging whether the nation
has real grounds of comphiint; whether she is autliorized to employ
force, and justl-fiahle in taMng vp arms; whether prudence will
admit of such a stej), and whether the welfare of the state requires
it — that right, I say, can heloncj only to the hody of tlie nation, or to
the sovereign, her representative. It is doubtless one of those rights
^vithout which there can he no salutary government, and which are
therefore called rights of Tnajesty.''
" The founders of the Republic of the United States fully recog-
nized, from the beginning of the Union, the rights reserved to the
sovereign power. The articles of perpetual confederacy and iniion
between the States of New Hampshire, Massachusetts, &c., of 1778,
contain already the following stipulation (IX. § 1) :
" ' The right of declaring war and to make peace shall belong solely
and exclusively to the Congress of the United States. '
" This basis of the public hnv of the United States was preserved
and sanctioned by the Constitution of the United States of 1787,
which reserves the power of declaring war explicitl}' to Congress
(Section VIII.).
" Upon this point the Constitution of the United States harmonizes
perfectly with the public law of Europe.
" But this right, reserved to the supreme power of each country,
would become' illusory and null, if commanders of naval forces or
others were to be explicitly or tacitly authorized to undertake, either
of their own accord or \\\wn the order or with the consent of a diplo-
matic or consular agent, to commit acts of aggression and of war
against the vessels or the troops of another nation, without special
instructions from the supreme authority of their own country, noti-
fied in the forms prescribed by the law of nations. . . .
" 2dly. This act of hostility has been conunitted in a neutral port
of a power friendly to both nations.
" Certainly, if there be one point of maritime and international
law which is clearly and positively defined, and which has been
adopted by all the powers of the world, it is the inviolability of
neutral ports, the absolute prohibition from committing, in such
ports, acts of war and of violence, even against the enemy with whom
we are at open war. . . .
" The history of maritime wars at the period of the French Revolu-
tion furnishes abundant ])roofs of the very particular jealousy with
which the Government of the United States maintained the rights of
neutrals; and the undersigned would cite some celebrated cases, in
which the first statesmen of the Union, the most distinguished prede-
cessors of Mr. Marcy in the high position which he fills, have defended
the absolute inviolability of neutral ports, by means of most elaborate
824 DOMiciL. r§4^^-
arguments. But as the undersigned is fully persuaded that the same
doctrines will serve as guides to the (iovernment of the United States
on the present occasion, he confines himself to this slight allusion to
those princij^les which were formerly maintained, and very recently
supported by the Govenniient of the United States in relation to the
rights of neutrals, and more especially in regard to the inviolability
of neutral ports.
" The Imperial Government entertains too high an opinion of the
sense of justice and of integi'ity of the Government of the United
States to doubt for a single instant its anxiety to disavow the conduct
of its agents, under the circumstances above mentioned, and that it
will hasten to call them to a severe account, and tender to Austria a
satisfaction proportionate to the magnitude of the outrage."
Mr. Iliilseinann, Austrian charge d'afifaires, to Mr. Marcy, Sec. of State,
Aug. 29, 1853, n. Ex. Doc. 1, 33 Cong. 1 sess. 25.
" To bring out conspicuously the questions to be passed upon, it
seems to the undersigned that the facts should bo
s t*26^ 1853 *' ^^^^^ fully ^^^ clearly stated than they are in Mr.
Hiilsemann's note.
" Martin Koszta, by birth a Hungarian, and of course an Austrian
subject at that time, took an open and active part in the political
movement of 1848-49, designed to detach Hungary from the domin-
ion of the Emperor of Austria. At the close of that disastrous revo-
lutionary movement, Koszta, with many others engaged in the same
cause, fled from the Austrian dominions, and took refuge in Turkey.
The extradition of these fugitives, Koszta among them, was demanded
and pressed with great vigor by Austria, but firmly resisted by the
Turkish Government. They were, however, confined at Kutahia, but
at length released, with the understanding or by express agreement
of Austria that they should leave Turkey and go into foreign j^arts.
Most of them, it is believed, before they obtained their release, indi-
cated the United States as the country of their exile. It is alleged
that Koszta left Turkey in company with Kossuth — this is believed to
be a mistake; and that he engaged never to return— this is regarded
as doubtful. To this sentence of banishment — for such is the true
character of their expulsion from Turkey — Austria gave her consent ;
in truth, it was the result of her eft'orts to procure their extradition,
and was accepted by her as a substitute for it. She had agents or
commissioners at Kutahia to attend to their embarkation, and to her
the legal consequences of this act are the same as if it had been done
directly by herself, and not by the agency of the Ottoman Porte.
Koszta came to the United States and selected this country for his
future home.
§490.] ^ THE KOSZTA CASE. 825
"On the 31st of July, 1852, he made a declaration, under oath,
before a proper tribunal, of his intention to become a citizen of the
United States and renounce all allegiance to any other state or sov-
ereign.
"After remaining here one year and eleven months, he returned, on
account, as is alleged, of private business of a tem})orarv character,
to Turkey in an American vessel, claimed the rights of a naturalized
American citizen, and offered to place himself under the protection of
the United States consul at Smyrna. The consul at first hesitated to
recognize and receive him as such; but afterwards, and sometime
before his seizure, he, and the xVmerican charge d'aiXiurQs ad hi f( rim at
Constantinople, did extend protection to him, and furnished him Avith
a fezkereh — a kind of passport or letter of safe-conduct, usually given
b}^ foreign consuls in Turkey to persons to whom they extend protec-
tion, as by Turkish laws they have a right to do. It is iuiportant to
observe that there is no exception taken to his conduct after his return
to Turkey, and that Austria has not alleged that he was there for any
political object, or for any other purpose than the transaction of pri-
vate business. While waiting, as is alleged, for an opportunity to re-
turn to the United States, he was seized by a band of lawless meri —
freely, perhaps harshly, characterized in the despatches as ' ruffians,'
' Greek hirelings,' ' robbers ' — who had not, nor did they pretend to
have, any color of authority emanating from Turkey or Austria,
treated with violence and cruelty, and thrown into the sea. Immedi-
ately thereafter he was taken up by a boat's crew lying in wait for
him, belonging to the Austrian brig-of-war the ' Huszar,' forced on
board of that vessel, and there confined in irons. It is now avowed, as
it was then suspected, that these desperadoes were instigated to this
outrage by the Austrian consul-general at Smyrna ; but it is not pre-
tended that he acted under the civil authority of Turkey, but, on the
contrary, it is admitted that, on application to the Turkish governor
at Smyrna, that magistrate refused to grant the Austrian consul any
authority to arrest Koszta.
" The consul of -the United States at Smyrna, as soon as he heard
of the seizure of Koszta, and the charge d'affaires of the United
States (id interim at Constantinople, afterwards interceded with the
Turkish authorities, with the Austrian consul-general at Smyrna,
and the commander of the Austrian brig-of-war, for his release, on
the ground of his American nationality. To sup])ort this claim,
Koszta's original certificate of having made, under oath, in a court
in New York, a declaration of intention to become an American
citizen, w-as produced at Smyrna, and an imperfect copy of it jilaced
in the hands of the Imperial Austrian Internuncio at Constantinople.
The application to these officers at Smyrna for his liberation, as
826 DOMTCiL. [§ 490.
well as that of Mr. Bnmn, our charge (raflfairos, to Baron de Bruck,
the Austrian niinistor at Constantinople, was fruitless, and it be-
came notorious at Smyrna that there was a settled design on the
part of the Austrian officials to convey him clandestinely to Trieste —
a city within the dominion of the Emperor of Austria. Opportunely,
the United States sloop-of-war, the ' St. Ijouis,' under the command
of Captain Ingraham, arrived in the harbor of Smyrna before this
design was executed. The conunjinder of the ' St. Louis,' from the
representation of the case made to him, felt it to be his duty, as it
unquestionably was, to inquire into the validity of Koszta's claim
to American protection. He proceeded with deliberation and pru-
dence, and discovered what he considered just groinids for inquir-
ing into Koszta's claim to be discharged on account of his American
nationality. During the pendency of this inquiry, he received
notice of the design to take Koszta clandestinely, before the ques-
tion at issue was settled, into the dominions of the Emperor of
Austria. As there was other evidence of bad faith besides the dis-
covered design of evading the inquiry. Captain Ingraham demanded
his release, and intimated that he should resort to force,if the demand
was not complied with by a certain hour. Fortunately, however,
no force was used. An arrangement was 'made by which the pris-
oner was delivered into the custody of the French consul-general, to
be kept by him until the United States and Austria should agre<^ as
to the manner of disposing of him. ...
" His Imperial Majesty demands that the Government of the
United States shall direct Koszta to be delivered to him ; that it shall
disavow the conduct of the American agents in this affair, call them
to a severe account, and tender satisfaction proportionate to the out-
rage.
" In order to arrive at just conclusions, it is necessary to ascertain
and clearly define Koszta's political relation with Austria and with
the United States when he was seized at Smyrna. This is the first
point which naturally presents* itself for consideration, and perhaps
the most important one in its bearings upon the merits of the
case. . . .
" The conflicting laws on the subject of allegiance are of a munici-
pal character, and have no controlling operation beyond the terri-
torial limits of the countries enacting them. All uncertainty as well
as confusion on this subject is avoided by giving due consideration to
the fact that the parties to the question now under consideration are
two independent nations, and that neither has the right to appeal to
its own municipal laws for the rules to settle the matter in dispute,
which occurred within the jurisdiction of a third independent power.
" Neither Austrian decrees nor American laws can be properly in-
voked for aid or direction in this case, but international law furnishes
§ 490.] THE KOSZTA CASE. 827
the rules for a correct decision, and Iw the light from this source shed
upon the transaction at Smyrna are its true features to be discerned.
" Koszta being beyond the jurisdiction of Austria, her laws were
entirely inoperative in his case, unless the Sultan of Turkey has con-
sented to give them vigor within his dominions by treaty stipula-
tions. The law of nations has rules of its own on tlie subject of alle-
giance, and disregards, generally, all restrictions imposed upon it by
municipal codes.
" This is rendered most evident by the proceedings of independent
states in relation to (extradition. No state can demand from any
other, as a matter of right, the surrender of a native-born or natural-
ized citizen or subject, an emigrant, or (^ven a fugitive from justice,
unless the denumd is authorized by exi)ress treaty stipulation. In-
ternational law allows no such claim, though comity may sometimes
yield what right withholds. To surrender political offenders (and in
this class Austria places Koszta) is not a duty; but, on the contrary,
compliance with such a demand would be considered a dishonorable
subserviency to a foreign power, and an act meriting the reprobation
of mankind. As rendering needless all further argument on this
point, the undersigned will recall to Mr. Hiilsemann's recollection
what took place in 1849 and 1850, in relation to the reclamation of
Polish refugees in Turkey by Russia, and of Hungarian refugees (of
whom Koszta was one) by Austria. This demand was made in con-
cert, as it were, by two powerful sovereigns, while their triumphant
armies, which had just put an end to the revolutionary movements in
Hungary, stood upon the borders of Turkey, with poAver to erase her
name from the list of nations. She might well apprehend for herself,
as the nations of AVestern Europe apprehended for her, that a refusal
in her critical condition would put in jeopardy her existence as an
independent power; but she did refuse, and the civilized world justi-
fied and commended the act. Both Austria and Russia phiced their
respective demands on higher grounds than a right of extradition
under the law of nations; they attempted to strengthen their claim by
founding it upon the obligations of existing treaties — the same, un-
doubtedly, that are now urged upon the consideration of the United
States. Russia and Austria, however, both submitted to the refusal,
and never presumed to impute to Turkey the act of refusal as a breach
of her duty or a violation of their rights. ...
" It is to be regretted that this claim for the surrender of Koszta
and his companions, so fully considered then and so signally over-
ruled, should be again revived by Austria under circumstances which
make the United States a reluctant party in the controversy. . . .
"Austria a])ix'ars to have been aware that her right to seize Koszta
could not be sustained by interiuitional law, and she has attempted to
derive it from certain treaties, or ' ancient capitulations, by treaty and
828 DOMiciL. [§ 49a
usage,'' The very slight and inexplicit manner in which this au-
thority is adverted to in Mr. lliilseniann's note apparently indicates,
if not a want of confidence in it, at least a desire not to have it
scrutinized. ... It is not shown or alleged that new treaty stipula-
tions since 1849 have heen entered into by Turkey and Austria. The
' ancient capitulations ' were relied on to support the dqmand in that
year for the surrender of the Hungarian refugees; they were scruti-
nized, and no such authority as is now claimed was found in
them. . . . On this subject it is allowable to resort to the declara-
tions of the public men of the Porte as evidence in regard to an issue
of this kind. Their explicit denial may be fairly considered as equiv-
alent to Austria's affirmation without proof, where proof, if it existed,
could be so easily adduced. . . . There is now, however, some-
thing more decisive from Turkey than the opinion of her public men
in opposition to this treaty-claim of Austria. The government of
the Porte has pronounced a judgment in relation to the seizure of
Koszta, which Austria herself is bound to respect. It has protested
against the conduct of the Austrian agents in that affair as unlawful
and as a violation of its sovereignty; but not one word of complaint,
not a murmur of dissatisfaction, from Turkey against the conduct of
the functionaries of the United States at Smyrna has yet reached this
government. . . .
" But if Austria really has such authority by treaties as she now
claims, it confessedly extends only to ' Austrian subjects.' . . .
By the consent and procurement of the Emperor of xVustria, Koszta
had been sent into perpetual banishment. The Emperor was a party
to the expulsion of the Hungarian refugees from Turkey. The sov-
ereign by such an act deprives his subjects to whom it is applied of all
their rights under his government. He places them where he can
not, if he would, afford them protection. By such an act he releases
the subjects thus banished from the bond of allegiance. . . .
" The proposition that Koszta at Smyrna was not an 'Austrian sub-
ject ' can be sustained on another ground. By a decree of the Em-
peror of Austria, of the 24th of March, 1832, Austrian subjects leaving
the dominions of the Emperor without permission of the magistrate
and a release of Austrian citizenship, and with an intention never to
return, become ' unlawful emigrants^ and lose all their civil and po-
litical rights at home. — (Ency. Amer., Tit. Emigration, 2 Kent's
Com. 50, 51.)
" Koszta had left Austria without permission, and with the obvious
and avowed intention never to return: he was, therefore, within the
strict meaning of the imperial decree, ' an unlawful emigrant.' He
had incurred and paid the penalty of that offence by the loss of all his
civil and political rights. ... It seems to have been the very ob-
§490.] THE KOSZTA CASE. 829
ject of the Austrian decree to dissolve the previous political connexion
between the ' unlawful emigrant ' and the Emperor. In Koszta's
case it was dissolved. . . .
" The undersigned is brought, by a fair application of sound princi-
ples of law, and by a careful consideration of the facts, to this impor-
tant conclusion : that those who acted in behalf of Austria had no
right whatever to seize and imprison Martin Koszta.
" It will be conceded that the civil authority of Turkey, during the
whole period of the occurrences at Smyrna, w^as dormant, and in no
way called into action. Under these circumstances — Austria without
any authority, Turkey exercising none, and the American function-
aries, as Austria asserts, having no right in behalf of their govern-
ment to interfere in the affair, (a proposition which will be hereafter
contested) — what, then, was tlie condition of the parties at the com-
mencement of the outrage and through its w^hole progress? They
were all, in this view of the case, without the immediate presence and
controlling direction of civil or international law in regard to the
treatment of Koszta. The Greek hirelings, Koszta, their victim, and
the Austrian and American agents, were, upon this supposition, all
in the same condition at Smyrna, in respect to rights and duties, so
far as regards that transaction, as they would have been in if it had
occurred in their presence in some unaj^propriated region lying far
beyond the confines of any sovereign state whatever; they were the
liege subjects of the law of nature, moral agents, bound each and all
alike to observe the precepts of that law, and especially that which is
confirmed by divine sanction, and enjoins upon all men, everywhere,
when not acting under legal restraints, to do unto others whatsoever
they would that others should do unto them; they Avere bound to do
no wrong, and, to the extent of their means, to prevent wrong from
being done — to protect the weak from being oppressed by the strong,
and to relieve the distressed. In the cn^e supposed, Koszta was seized
without any rightful authority. He was suffering grievous wrong;
any one that could, might relieve him. To do so was a duty imposed,
under the peculiar circumstances of the case, by the laws of humanity.
Captain Ingraham, in doing wliat he did for the release of Koszta,
would, in this view of the case, be fully justified upon this principle.
^Vlio, in such a case, can fairly take offence? Who have a right to
complain? Not the wrong-doers, surely, for they can appeal to no
law to justify their conduct; they can derive no support from civil
authority, for there was none called into action ; nor from the law of
nature, for that they have violated.
" To place the justification of the AuM^rican agents still furth.er
beyond controversy, the undersigned will now proceed to show that
Koszta, when he was seized and imprisoned a*^. Smyrna, had the
830 DOMiciL. [§ 490.
national character of an American, and the Government of the United
States had the right to extend its protection over him. . . .
"Mr. IliilHoinann, as the undersigned believes, falls into a great
error — an error fatal to some of his most important conclusions — l)y
assuming that a nation can properly extend its protection only to
native born or naturalized citizens. This is not the doctrine <if
international law, nor is the j)ractice of nations circumscribed within
such narrow limits. . . . It is a maxim of international law that
domicil confers a national character; it does not allow anyone who
has a domicil to decline the national charactei- thus conferred; it
forces it upon him often very much against his will, and to his great
detriment. International law looks only to the national character
in determining what country has the right to protect. If a person
goes from this country abroad, with the nationality of the United
States, this law enjoins upon other nations to respect him, in regard
to protection, as an American citizen. It concedes to every country
the right to protect any and all who may be clothed with its nation-
ality. These are important principles in their bearings upon the
questions presented in Mr. Iliilsemann's note, and are too obvious to
be contested; but as they are opposed to some of the positions taken
by Austria, the undersigned deems it respectful in such a case to
sustain them by reference to authorities.
" ' The position is a clear one, that if a person goes into a foreign
country and engages in trade there, he is, by the law of nations, to be
considered a merchant of that country, and a Kuhjeet for all civil
purposes, whether that country be hostile or neutral.' (1 Kent's
Com. 75.)
"Again : the same authority says that ' in the law of nations, as to
Europe, the rule is, that men take their national character fiom the
general character of the country in which they reside.' (Ibid.
78.) . . •
" The most approved definitions of a domicil are the following:
" 'A residence at a particular place, accompanied with positive or
presumptive proof of continuing there for an imlimited tinie.' — (1
Binney's Reports, 349.) ' If it sufficiently appear that the intention
of removing was to make a permanent settlement, or for an indefinite
time, the right of domicil is acquired by a residence of a few^ days.' —
(The Venus, 8 Cranch, 279.) ' Vattel has defined domicil to be a
fixed residence in any place, with an intention of always staying there.
But this is not an accurate statement. It would l>e more correct to
say that that j)lace is properly the domicil of a person in which his
habitation is fixed, without any present intention of removing there-
from.'— (Story's Con. of Laws, § 48.) 'A j)erson who removes to a
foreign countr}', settles himself there, and engages in the trade of
§490.) THE KOSZTA CASE. 831
the country, furnishes by these acts such evidence of an intention
permanently to reside there as to stamp him with the national charac-
ter of the state where he resides.' — (The Venus, 8 Cranch, 279.)
"Apply these principles to the case under consideration, and the
inevitable result is that Koszta had a domicil in the United States.
He came to and resided in this country one year and eleven months.
He came here with the intention of making it his future abode.
This intention was manifested in several ways, but most significantly
by his solemn declaration upon oath. There can be no better evi-
dence of his design of making the United States his future home than
such a declaration ; and to this kind of evidence of the intention, the
indispensable element of true domicil, civilians have always attached
importance. (Phillimore, § 188.) . . .
" The establishment of his domicil here invested him with the
national character of this country, and with that character he acquired
the right to claim protection from the United States, and they had
the right to extend it to him as long as that character continued.
" The next question is. Was Koszta clothed with that character
when he was kidnapped in the streets of Smyrna, and iuiprisoned
on board of the Austrian brig-of-war ' Huszar ' ? The national char-
acter acquired by residence remains as long as the domicil con-
tinues. . . . To lose a domicil when once obtained, the domiciled
person must leave the country of his residence with the intention to
abandon that residence, and nuist acquire a domicil in another. Both
of these facts are necessary to elTect a change of domicil; but neither
of them exists in Koszta's case. Tlie facts show that he was only
temporarily absent from this country on private business, with no
intention of remaining permanently in Turkey, but, on the contrary,
was at the time of his seizure awaiting an opportunity to return to
the United States. . . .
" This right to protect persons having a domicil, though not native-
born or naturalized citizens, rests on the firm foundation of justice,
and the claim to be protected is earned by considerations which the
protecting i)ower is not at liberty to disregard. Such domiciled citi-
zen pays the same price for his j^rotection as native-born or natural-
ized citizens jiays for theirs. He is under the bonds of allegiance to
the country of his residence, and if he breaks them incurs the same
peiuilties; he owes the same obedience to the civil laws, aiul nnist
discharge the duties they impose on him; his proi)ei-ty is in the same
wa}^ and to the same extent as theirs, liable to contribute to the sup-
port of the government. In war he shares equally wiUi them in the
calamities which may befall the counti'v ; his services may be recjiiired
for its defence; his life may be perillcMl and sacrificed in maintaining
its rights and vindicating its honor. In nearly all resjjects his and
their condition as to the duties and burdens of irovernment are undis-
832 DOMICTL. [§ 490.
tingiiishable; and what reasons can be given why, so far at least as
regards protection to person and proi)erty abroad as well as at home,
his rights should not be co-extensive with the rights of native-born or
naturalized citizens? \iy the law of nations thev have the same
nationality; and what right has any foreign power, for the purpose
of making distinction between them, to look beliind the character
given them by that code which regulates national intercourse?
When the law of nations determines the nationality of any man,
foreign governments are bound to respect its decision. . . .
'' There is another view of this case which places the conduct of
the agents of this government at Smyrna upon equally defensible
grounds. . . .
'' By the laws of Turkey and other eastern* nations, the consulates
therein may receive under their protection strangers and sojourners
whose religion and social manners do not assimilate with the religion
and manners of those countries. The persons thus received become
thereby invested with the nationality of the protecting consulate.
These consulates and other European establishments in the East, are
in the constant habit of opening their doors for the reception of such
inmates, who are received irrespectiAe of the country of their birth or
allegiance. It is not unconnnon for them to have a large number of
such proteges. International law recognizes and sanctions the rights
acquired by this connexion.
" ' In the law of nations as to Europe, the rule is, that men take
their national character from the general character of the country in
which they reside ; and this rule applies equally to America. But in
Asia and Africa an immiscible character is kept up, and Europeans
trading under the protection of a factory take their national char-
acter from the establishment under which they live and trade. This
rule applies to those parts of the world from obvious reasons of
policy, because foreigners are not admitted there, as in P^urope " and
the western part of the world," into the general body and mass of the
society of the nation, but they continue strangers and sojourner's, not
acquiring any national character under the general sovereignty of the
country.' — (1 Kent's Com. T8-'9.)
" The Lords of xVppeals in the High Court of Admiralty in Eng-
land decided in 1784, that a merchant carr\^ing on trade at Smyrna,
under the protection of a Dutch consul, was to be considered a Dutch-
man as to his national character. (Wheaton's Inter. Law, 884, 8 Kob.
Adm. Reports, 12.)
" This decision has been examined and approved by the eminent
jurists who have since written treatises on international law.
'' According to the j)rinciple established in this case, Koszta was
invested with the nationality of the United States, if he had it not
before, the moment he was under the protection of the American
§ 490.] THE KOSZTA CASE. 833
consul at Smyrna and the American legation at Constantinople.
That he was so received is established by the tezkereh they gave him,
and the efforts they made for his release. . . .
" Having been received nnder the protection of these American
establishments, he had thereby acquired, according to the law of
nations, their nationality ; and when wronged and outraged as he was,
they might interpose for his liberation, and Captain Ingraham had a
right to cooperate with them for the accomplishment of that object.
The exceptions taken to the manner of that cooperation remain to be
considered. . .
" It has excited some surprise here that, after a consideration of the
circumstances, an impression should be entertained in any quarter
that Captain Ingraham either committed or meditated hostility
towards Austria on that occasion. . . . The first aggressive act in
this case was the seizure of Koszta at Smyrna, committed by the
procurement of the Austrian functionaries; the first improper use of
a national ship, the imprisonment of Koszta therein, was made by the
commander of the Austrian brig ' Huszar.' That ship was converted
into a prison for the illegal detention of a person clothed with the
nationality of the United States, and consequently entitled to their
protection. If Austria upholds, as it appears she does, the conduct
of the commander of the ' Huszar,' she is in fact the first aggressor.
This act of the commander of the ' Huszar ' led to the series of other
acts which constitute the ground of complaint against the United
States. . .
" There is a consideration probably not brought to the notice of
Austria, and not sufficiently regarded by others, which places the acts
of Captain Ingraham in a true light, and repels the inference of
intended hostile demonstrations towards Austria. It was the under-
standing of the parties that Koszta should be retained at Smyrna
while the question of his nationality was pending. Captain Ingra-
ham received satisfactory evidence of a design, on the part of the
Austrian functionaries at Smyrna and Constantinople, to disregard
this arrangement, and remove him clandestinely from the ' Huszar '
on board of a steamer, for the purpose of taking him to Trieste. . . .
The captain of the ' St. Louis ' was placed in the per])lexing alterna-
tive of surrendering their captive, without further etlorts, to tlie sad
fate which awaited him, or to denumd his iunnediate release, and. in
case of refusal, to enforce it. ... It is not just to Captain Ingrahaui
to look at the affair as it was at the precise point of time when the
demand for the release of Koszta was made. The antecedent events
qualify and legalize that act. The Austrian functionaries had ob-
tained the possession of the person of Koszta, not in a fair or allow-
able way, but by violating the civil laws of Turkey and the rights of
H. Doc. 551— vol 3 53
834 DOMTCIL. [§ 400.
humanity. Under these circumstances, their custody of him was
entitled to no respect from the agent of the government which, by
virtue of his nationality, had a right to protect him. . . .
" The undersigned yields a ready assent to that part of Mr. Hiilse-
mann's note relative to the war-making power. The doctrine con-
tained in it is sound, and well sustained by most approved authorities ;
but the undersigned has not been able to discover its applicability to
the case under consideration. . . .
" Before closing this communication the undersigned will briefly
notice the complaint of Austria against Captain Ingraham for vio-
lating the neutral soil of the Ottoman empire. The right of Austria
to call the United States to an account for the acts of their agents
affecting the sovereign territorial rights of Turkey is not perceived,
and they do not acknowledge her right to require any explanation.
" If anything was done at Smyrna in derogation of the sovereignty
of Turkey, this Government will give satisfactory explanation to
the Sultan w'hen he shall demand it, and it has instructed its minister
resident to make this know^n to him. He is the judge, and the only
rightful judge, in this affair, and the injured party too. He has inves-
tigated its merits, pronounced judgment against Austria, and ac-
quitted the United States ; yet, strange as it is, Austria has called the
United States to an account for violating the sovereign territorial
rights of the Emperor of Turkey. . . .
"The President does not see sufficient cause for disavowing the
acts of the American agents which are complained of by Austria.
Her claim for satisfaction on that account has been carefully consid-
ered, and is respectfully declined.
" Being convinced that the seizure and imprisonment of Koszta
were illegal and unjustifiable, the President also declines to give his
consent to his delivery to the consul-general of Austria at Smyrna;
but, after a full examination of the case, as herein presented, he has
instructed the undersigned to communicate to Mr. Hiilsemann his
confident expectation that the Emperor of Austria will take the
proper measures to cause Martin Koszta to be restored to the same
condition he was in before he was seized in the streets of Smyrna on
the 21st of June last."
Mr. Marcy, Sec. of State, to Mr. Hiilsemann, Austrian charge d'affaires,
Sept. 20, 1853, 11. Ex. Doc. 1, 33 Cong. 1 sess. 30.
See, also, S. Ex. Docs. 40 and 53, 33 Cong. 1 sess. ; H. Ex. Doc. 91, 33
Cong. 1 sess.
" Under an arrangement between the agents of the United States
and of Austria, he [Koszta J was transferred to the custody of the
French consul-general at Smyrna, there to remain until he should be
disposed of by the mutual agreement of the consuls of the respective
§491.] KOSZTA CASE: INTERPRETATIONS. 835
Governments at that i^lace. Pursuant to that agreement, he has been
released, and is now in the United States."
President Pierce, annual message, Dec. 5, 1853, Richardson's Messages,
V. 210.
2. Interpretations.
§ 491.
In a letter to Mr. Marcy, August 8, 1853, Mr, Dainese. of the
United States consulate at Constantinople, who appears then to have
been in the United States, said that Koszta, though only, to use the
words of Mr. AYebster, an affiliated citizen of the United States, had,
according to the j^rinciples adopted by the Turkish Government in
relation to foreigners residing in or traveling through Turkey, a full
right to claim the protection of the American flag. Mr. Dainese
stated that in Turkey all natives wdiose parents came from a European
country", or from a country not subject to the Sultan, as well as all for-
eigners residing in or traveling through the Turkish dominions, had
a right to live, as most of them did, under the protection of such
one of the representatives of the Christian powers as might, on their
application, admit them to that relation.
H. Ex. Doc. 82, 34 Cong. 3 sess. 2G1-2G4.
" From the statement of the case it is quite evident that Costa was
not, at the time he was kidnapped, a subject of the Emperor of
Austria. He had withdraAvn from his allegiance to the Austrian
Government, and the course of that Government towards him was
at least an implied consent to that withdrawal. By acts concurred in
by both parties, the ties of allegiance Avere severed. He had re-
nounced on his part, as Austria had on hers, all claims to reciprocal
rights or duties resulting from their former political connection as
sovereign and subject, and they stood towards each other as if no
such connection had ever existed. If, however, there had been some
foundation for a claim by Austria, as under the obligation of alle-
giance to her, when he was seized at Smyrna, the case would not,
perhaps, have been much changed; it would only have afforded some
better pretext for the outrage than now exists, but would not have
altered its character or legal consequences. "While at Smyrna,
Austria had no jurisdiction over the person of Costa, nor do I under-
stand that there was at the time of the seizure any pretense that it
was made by Austrian authority in any legal form.
"The Turkish authorities explicitly disavow any participation in
the discreditable act. . . . The seizure of Costa and the outrage
committed on him can therefore be regarded in no other liglit than
the lawless act of private wrongdoers, and the continuation of that
886 DOMTCTL. r§401.
act — tlio taking him from the sea and putting liim on board of the
Austrian brig of war, the Hussar, and confining him in irons — was
precisely of the same character, a wanton and illegal violation of his
personal rights. The interference of mere bystanders for his relief,
in such a case of oppression and cruelty, could be sustained upon the
broad principles of humanity. But the justification of Captain
Ingraham's conduct is placed on other and more clearly defined
grounds. Whatever may have been Costa's citizenship (not Ix^ing a
subject of the Ottoman Porte) he was, while at Smyrna, a Frank or
sojourner, and might place himself under any foreign protection he
chose to select, and the Turkish laws respect the rights he thus
acquired. lie did place himself under the protection of an American
consul at Smyrna, and our legation at Constantinople, and was at
once clothed with the nationality of the protecting power, and con-
sequently became entitled to be regarded and respected Avhile in that
situation as a citizen of the United States. The American consul at
Smyrna did nothing more than his duty in claiming for him the pro-
tection due to one of our citizens, and Captain Ingraham is justified
by his Government for using the means he did for procuring his re-
lease from illegal imprisonment.
" You are therefore instructed by the President to present these
views to the Austrian legation at Constantinople, if Costa has not
been released, and to the French consul at Smyrna, if he retains him
in custody by virtue of the arrangement made on the subject, as the
vicAvs of the Government of the United States, and denumd that the
prisoner be released and restored to the same condition he was in at
the time of his seizure in the streets of Smyrna. It is jjresumed that
the Imperial Government of Austria will be very unwilling to do
anything which will in any way connect itself with this outrage, and
that it will disavow the pretext that the procedure was instigated by
it, or has in any manner had its subsequent countenance."
Mr. Marcy. Sec-, of State, to Mr. Marsh, iiiin. to Turkey, No. 27, Aug. 26,
185.S, MS. lust. Turkey, I. 371.
See, also, .Mr. Marcy to Mr. Marsh, unofficial, Aug. 20, 1853, MS. Inst.
Turkey, I. 374; Mr. Marey Sec-, of State, to Mr, Offley, consul at
Smyrna, Aug. 31, 1853, 17 MS. Desp. to Consuls, G7.
" No complaint has reached this Department from the Turkish
Government against Commander Ingraham, of the U. S. slooj) of war
St. Louis, on account of his conduct at Smyrna in June and July
last, with reference to the affair of Martin Koszta ; and from the tenor
of the despatches from your legation such a complaint could scarcely
be expected. In the event, however, that this reserve should be occa-
sioned by an apprehension on the part of the Porte that the representa-
tions which it might think proper to address to us upon the subject
§491.] KOSZTA case: interpretations. 837
would not be respectfully received, the President directs me to
instruct you to assure the Turkish authorities that, if the Sultan's
Government should in any way feel ag<^rieved by the proceedings
of Commander Ingraham, this Government will not hesitate, upon
receiving a statement of the grounds of the grievance, to take it into
consideration, with a view to such redress as the circumstances may
call for."
Mr. Marey, Sec. of State, to Mr. Marsh, niin. to Turkey, No. .31, Sept. 27,
18.5.3, MS. Inst. Turkey. I. 377.
" I have just had a full conversation with Baron Gerolt, the Prus-
sian minister, in relation to the case of your brother, Henry D'Oench.
The positions maintained by this Department in the case of Koszta
will be acted on in all cases to which they may be applicable; but it
is apprehended that there are such circumstances of ditference in
your brother's case as may eml)arrass the Govermnent in their efforts
to procure his discharge.
" Prussia regarded him as a fugitive from justice and claimed from
the authorities of Hamburg his extradition as a matter of right, and
Hamburg yielded to this claim as a matter of duty arising from its
political connection with her. Having got possession of his person
and brought him Avithin her jurisdiction, as she contends, in a strictly
legal manner, she maintains her right to inflict upon him the punish-
ment to which he has been sentenced by the tribunals of the country
for a violation of its laws committed while he was a subject of the
King of Prussia. The change of national character subsequent
to the alleged offense does not release an offender from jjenalties
previously incurred when legally brought within the jurisdiction
of the country whose laws have been violated. It may be found
that in this respect there is a difference between the case of your
brother and that of Koszta. You may, however, be assured that this
Government Avill use all proper unmans to effect his release.''
Mr. Marcy, Sec. of State, to Mr. D'Oench, Nov. IG, 1853, 42 MS. Dom.
Let. 54.
See, to the same eflfeet, Mr. Marcy. Sec. of State, to Mr. Thum. Nov. 18.
1853, statins that the American consul at Hamburg had been
instructed "to conununicate to tliis Dei)artnient all information he
may i)ossess in regard to the arrest, surrender, and present con-
dition of Mr. D'Oench ; also to ascertain whether any extradition
treaty is in force between Hamburg and Prussia by which the former
is bound to deliver up to the latter jx-rsons diarged with criminal
offenses, and, more especially, whether tlie stipulations of such treaty,
if any exist, eml>race political oflfonders." (42 MS. Dom. Let. 5«).)
It appears that Henry D'Oench was tiie editor of a newspaper in Silesia,
and took part in the revolutionary movement of 1848. Being charged
with political oftences, he was a fugitive on German soil for a year,
wheu, iu March, 1850, he came to the United States. Feb. 12, 1852,
838 DOMiciL. [§491.
ho made a doolarntion of Intention, and saile<l for Hamburg on
business and to claim an inheritance. July 0, 1852, he was arrested
by the Hamburj; police and delivered over to the Prussian authori-
ties, by whom he was taken to Silborberg to serve a sentence of two
years and nine months' imprisonment. (Mr. Barnard, miu. to Prus-
sia, to Mr. Marcy, Sec. of State, No. 137, Sept. 13, 1853, 8 MS. Desp.
from Prussia.)
There is nothing in the consular despatches from Hamburg throwing
light on the case, which seems not to have been diverted from the
course it had taken.
Simon Tousig, a native of Austria, on his return to that country
from the United States, was arrested and imprisoned. Mr. Henry
R. Jackson, then American charge d'affaires at Vienna, proposed, on
the strength of Koszta's case, to demand his release. Mr. Marcy
replied: "xVssuming all that could possibly belong to Tousig's case —
that he had a domicil here and was actually clothed with the nation-
ality of the United States — there is a feature in it which distinguishes
it from that of Koszta. Tousig voluntarily returned to Austria and
placed himself within the reach of her municipal laws. He went by
his free act under their jurisdiction and thereby subjected himself to
them. If he had incurred i:)enalties or assumed duties while under
these laws, he might have expected they would be enforced against
him, and should have known that the new political relation he had
acquired, if indeed he had acquired an}^, could not operate as a release
from these i^enalties. Having been once subject to the municipal laws
of Austria and while under her jurisdiction violated these laws, his
Avithdrawal from that jurisdiction and acquiring a different national
character would not exempt him from their operation whenever he
again chose to place himself under them."
Mr. Marcy, Sec. of State, to Mr. Jackson, charge d'affaires at Vienna,
Jan. 10, 1854, MS. Inst. Austria, I. 89 ; 54 Brit. & For. State Papers,
4G7.
See Mr. Wharton, Act. Sec. of State, to Mr. Crounse, Aug. 10, 1891, 183
MS. Dom. Let. 21.
"As this Department grants passports to citizens of the United
States only, it certainly recognizes in its representatives abroad no
authority to grant them to such as are not citizens. At the same time
it does not deny to them the right of extending a certain degree of
protection to those possessing only the inchoate rights of citizenship.
The nature and extent of this protection, however, must depend in a
great degree upon circumstances, and these will vary with almost
every case. Thus a foreigner who comes to this country, and,
renouncing all allegiance to any other power, declares his intention
of becoming a citizen, and afterwards returns to the country of his
birth for a temporary purpose only, not losing tliereby his domicil
§491.] KOSZTA CASE: INTEEPRETATIONS. 839
here, is clothed with a nationality which entitles him to a greater
degree of protection than could properly be extended to one who, as
in the case of Mr. Willrich, after declaring his intention to become
a citizen of the United States, shortly after departs therefrom, and
remains abroad a sufficient length of time to warrant the belief that
he has either abandoned that intention or is indifferent about carrying
it into effect."
Mr. Marcy, Sec. of State, to Mr. Yroom, min. to Prussia, No. 13, July 7,
1854, MS. Inst. Prussia, XIV. 218.
This instruction, when it speaks of a person " who comes to this country,
and, renouncing all allegiance to any other power, declares his inten-
tion," makes an assumption the grounds of which are not apparent,
since an alien, in declaring his intention to hecome a citizen, does
not renounce his allegiance to any other power, but merely declares
his intention to do so.
. " This Government can not rightfully and does not claim of
foreign powers the same consideration for a declaration of inten-
tion to become a citizen, as for a regular passport. The declaration
indeed is prima facie evidence that the person making it was, at its
date, domiciled in the United States, and entitled thereby, though
not to all, to certain rights of a citizen, and to much more considera-
tion when abroad, than is due to one who has never been in our
country; but the declarant, not being a citizen under our laws, even
while domiciled here, can not enjoy all the rights of citizenship
either here or abroad. He is entitled to our care, and in most cir-
cumstances we have a right to consider him as under our protection,
and this Government is disposed and ready to grant him all the
benefits he can or ought to receive in such a situation. If such
individual, however, afterwards leave this country, repair to another,
and there take up his permanent abode, his connection with the
United States is dissolved, and his intention to become a citizen
must be considered to have been abandoned. Under the circum-
stances the i^revious declaration ceases to be available for any pur-
poses whatever. But when a person with a fair intent has made a
declaration and goes abroad for any purpose not incompatible with
the objects of the dechiration. and the legation has certified to the
genuineness of his papers, the Government of the United States has
done ail that can be required or reasonably expected, and can have
no just cause of complaint if other governments see fit to refuse to
give the same effect to such papers as they usually give to regular
passports in the hands of our citizens.''
Mr. Mnrcy. Sec. of State, to Mr. .Tackson. clmrgo d'afTniros at Vienna.
No. 17, Sept. 14, 1S.')4, MS. Inst. Austria. I. KM).
See also Mr. Marcy. Sec. of State, to Mr. Buchanan, uiin. to England,
April 13, 1854, MS. Inst. (ir. I3r. XVI. 285.
840 DOMTCTL. [§401.
" In your No. 232 you desire to be informed as to the extent to
which you may afford protection or furnish passports to such persons
as have made formal dechirations, before the competent authorities
of the United States, of their intention to become citizens, but who
have not been legally naturalized.
" You state that in these cases you had replied that you ' could only
use (your) friendly offices with the Peruvian Government if (the
applicant)' required protection, but 'that (you) could not interfere
officially, as in the case of a citizen of the United States, or of for-
eigners who had gone through all the formalities required by law to
become naturalized.'
" The Department approves of the position you have assumed in
this respect, and also of your course in refusing ' to grant passports
to such persons except to enable them to return to the United States;
inserting the condition that they were to proceed direct to some
port or place Avithin the territories of the Union, or otherwise the
passport to be void after a stipulated time.'
" But, that no misapprehension may arise with regard to the pre-
cise attitude of the Department in relation to this subject, I embody
here an extract from an instruction addressed to our minister at The
Hague, on the 9th December last, by which you will be guided in all
similar contingencies :
" ' In your No. 4 enquiry is made whether you are to restrict the
granting of passports entirely to American citizens. As this Depart-
ment grants passpoi'ts only to bona fide citizens of the United States,
and as a passport is nothing more than a certificate of citizenship, it
follows, as a matter of course, that you can with propriety give a
passport neither to an alien who may have become domiciled in the
United States, nor to a foreigner who has rnerely declared his inten-
tion to become an American citizen. Both of these classes of persons,
however, may be entitled to some recognition by this Government.
The most that can be done by you for them is to certify to the genuine-
ness of their papers when presented for your attestation, and when
you have no reasonable doubts of their authenticity. The I^uropean
authorities may pay such respect to these documents as they may
think proper.' "
Mr. Marey, Sec. of State, to Mr. Clay, min, to Peru, No. 23, Dec. 28, 1854,
MS. Inst. Peru, XV. 150.
After the passage above quoted, Mr. Marcy answered an inquiry as to
liow far a minister of the United States might use his friendly ollioos
with the (iovernnient to which he was accredited in favor of for-
eigners whose nation was not representetl by a diplomatic agent or
a consul. This iiujuiry was made by Mr. Clay with reference to
the case of a Mexican who had ai)plied to him for protection. Mr.
Marcy replied that any good offices which a minister might under-
take under such circumstauces to render must be " entirely of a per-
§491.] KOSZTA CASE: INTERPRETATIONS. 841
sonal character," or such as might be " deuianded by humanity
or the pressing ui-gency of the case ; " but that, in rendering such
services, the minister " must exercise very great prudence, lest he give
ofiPence to the government near which he resides, or compromise his
own immunities by seeming to interfere with the administration of "
its " internal affairs."
" Your letter of the 9th instant has boon received. So far as I
understand your case, it is not at all like that of M. Koszta . . .
Koszta, it will be recollected, did not return to Austria or any of its
dominions, but its officers attempted to seize him in a foreign country
without any right to do so. Had K. been within the jurisdiction of
Austria when he was seized, the whole character of the case Avould
have been changed, and the forcible taking of him from the legal
custody of Austrian officers could not have been defended on any
j^rinciple of municipal or international law."
Mr. Marcy, Sec. of State, to Harry, Baron do Kalb, ,Tuly 20, IS."..^), 4-1 MS.
Dom. Let. 212. See this letter, more fully, infra, § r>:\~.
" With reference to the case of Mr. Robert G. Derbyshire, I have to
inform you that his mere declaration of an intention to l)ecome a citi-
zen of the United States, if he is resident abroad and has no domicil
in the United States, imposes no obligation upon you to apply to the
Nicaraguan Government for redress in his behalf on account of the
seizure of his property in the City of Granada.
" Supposing Mr. John Fearon to be a citizen or domiciled resident,
there would be no impropriety in your addressing a note to the proper
officer at the capital of Honduras, setting forth the grievances of
which Mr. Fearon complains in his letter to you of the 21st of June,
requesting an inquiry into the case and such punishment of the offi-
cers complained of as the result of the inquiry may call for."
Mr. Marcy, Sec. of State, to Mr. Wheeler, min. to Cent. Am., Xo. 12, Oct.
15, 1855, MS. Inst. Am. States, XV. 245. See infra, pp. 802-894.
"The impression of Mr. Goundie [U. S. consul at Zui-ich], as
stated by you, that I entertained the opinion that a declaration on the
part of an alien of his intention to become a citizen of the United
States ' entitles the declarant, while abroad, with the intention to
return, to the same rights and i)rivileges as a citizen of the United
States,' is the result of some misapprehension originating T know not
how. I have never expressed and am Aery far from hoUling any such
opinion. That a person under the circumstances stated by Mr.
(loundie Avoidd be entitled to more consideration from an American
minister or consul abroad than one who has entered into no such ivhi-
tion with this country there can be no doubt, but not being a citizen
under our laws, even while domiciled here, he can not enjoy all the
842 DOMiciL. [§491.
riglits of one either here or abroad. This is the opinion expressed
by Mr. Marcy, and I do not see how a different one can be reasonably
entertained."
Mr. Cass, Sw. of State, to Mr. Fay, niin. to Switzerland, Nov. 12, 1800,
MS. Inst. Switz. I. 85.
In February, 1802, two American citizens, Henry Myers and J. F.
Tunstall, members of the crew of the Confederate steamer Sumter^
then lying at Gibraltar, took passage on the French merchant steamer
Ville de Malaga, for the purpose of proceeding to Cadiz, in order to
obtain a supply of coal for the Confederate cruiser. The Ville de
Malaga having called at Tangier, Morocco, Myers and Tunstall went
ashore, and while walking in the street were, with the aid of a mili-
tary guard furnished by the Moorish Government, arrested b}^ the
United States consul and conveyed to the consulate, where they were
kept in irons till the arrival of the U. S. S. Ino, on which, with the
aid of a similar guard, they were shij^ped for the United States.
They were subsequently committed into military custody at Fort
Warren, Boston. The action of the United States in this case having
been criticised on the ground that it conflicted with the f)osition taken
by the same government in the Koszta case, Mr. Seward said : " It has
been assumed that in that instance the United States not only de-
manded impunity everywhere for all persons who were engaged,
under any circumstances, in armed hostility to their own govern-
ment, but even assumed a cosmopolitan championship for them. But
this is very erroneous. Koszta had indeed been a revolutionist in
Austria, and he was delivered by the United States authorities from
the hands of Austrian agents in Smyrna, a province of Turkey,
which is a Mahometan power whose relations to Christian states are
the same as those of Morocco.
" But the facts were that the civil war in Austria was at an end.
Martin Koszta was a Hungarian by birth, and was a refugee ; he had
fled, and had been decreed an outlaw by Austria. He had taken
asylum in America and had, under our laws, become domiciled and
nationalized as an American, and as such was held entitled to the
protection of this government under its treaty with the Sultan of
Turkey. He held a guarantee of protection from our consul at
Smyrna, a protection which was in conformity with the treaty and
wuth our own laws. The agents of the Austrian Government seized
him and undertook to carry him away by force, against the remon-
strances of our consul, and in defiance of the authorities of Turkey,
and to subject him to arbitrary punishment as a subject of a state
from which he had been transferred to the United States. It is not
easy to understand how the proceedings of this government in that
§491.] KOSZTA CASE: INTERPRETATIONS. 843
case can bo deemed to coiuniit it to tolerate revolution against itself
by our own disloyal citizens."
Mr. Seward, Sec. of State, to Mr. McMatb, eousul at Taugier, April 28,
1862, Dip. Cor. 18G2, 87.3, 877.
"The late distinguished Secretary of State, Mr. jVIarcy, was very
careful in his elaborate letter concerning the case of Martin Koszta
not to commit this government to the obligation or to the propriety
of using the force of the nation for the protection of foreign-born
persons who, after declaring their intention to l)ecome at some future
time citizens of the United States, leave its shores to return to their
native country. He showed clearly that Koszta had been expatriated
by Austria, and required to reside outside her jurisdiction; that
at the time of his seizure he w^as not on xVustrian soil, or where
Austria could claim him by treaty stipulations; that the seizure was
an act of lawdess violence, which every hiAv-abiding man was entitled
to resist ; and he took especial care to insist that the case was to be
judged, not by the municipal laws of the United States, not by the
local laws of Turkey, not by the conventions between Turkey and
Austria, but by the great principles of international law. It is true
that in the concluding part of that masterly dispatch he did say that
a nation might at its pleasure clothe with the rights of its nationality
persons not citizens, who were permanently domiciled in its borders.
But it will be observed by the careful reader of that letter that this
portion is supplemental merely to the main line of the great argument,
and that the Secretary rests the right of the government to clothe
the individual with the attributes of nationality, not upon the decla-
ration of intention to become a citizen, but upon the permanent
domicil of the foreigner within the country.
" To extend this principle beyond the careful limitation put upon
it by Secretary Marcy would be dangerous to the peace of the
country. It has been rei^eatedh^ decided by this Department that
the declaration of intention to become a citizen does not, in the absence
of treaty stipulations, so clothe the individual with the nationality
of this country as to enable him to return to his native land without
being necessarily subject to all the laws thereof."
Mr. J. C. B. Davis, Assist. Sec. of State, to Mr. Fox. consul at Triuiaad
<le Cuba, May 12, 18(!9, S. Ex. Doc. 108, 4l Coii!?. 2 sess. 2()2-20:].
The full substance of the correspondence l)etween Mr. Marcy and
the Chevalier Iliilsemann concerning the Koszta case has been given,
and to this have been added other discussions of and comments upon
the case by Mr. ^Nlarcv himself and his immediate successors, in order
that the misconcei)tions that have so witlely prevailed on the subject
may be removed. First of all, it is seen that the supposition that
844 DOMIOTL. [§491.
Mr. Maivv hold lliat Koszta's declaration of intention gave him an
American character and a claim to the protection of the United
States is not only destitnte of foundation, but is directly opposed to
his repeatedly expressed opinion. lie referred to the declaration
of intention merely as an evidence of domicil. In the second place,
there likewise disapi^ears the supposition that he held that a domi-
ciled alien, even where he had made a declaration of intention, was
entitled to the same protection abroad as a citizen of the United
States, or yet to protection against the claims of the country of his
original allegiance lawfully asserted, either there or in a third
coinitry.. In the third })lace, it appears by Mr. Marcy's instruction
-to Mr. Marsh, of Aug. 26, 1853, that the claim that Koszta had at
the time of his seizure an American character was based, in the first
instance, excliisirely upon his having been duly admitted to American
protection, according to the recognized usage in Turkey.
The links in Mr. Marcy's chain of reasoning were (1) that, as the
seizure and rescue of Koszta took place within the jurisdiction of a
third power, the respective rights of the United States and of Austria,
as parties to the controversy that had arisen concerning that trans-
action, could not be determined by the municipal law of either coun-
try, but must bo determined by international law; (2) that, as the
previous jjolitical connection between Koszta and the Austrian Gov-
ernment had, by reason of the circumstances of his emigration and
banishment, been, even under the laws of Austria, dissolved, he could
not at the time of his seizure be claimed as an Austrian subject, nor
could his seizure as such be justified by Austria, either under inter-
national law or her treaties with Turkey; (3) that the seizure in its
method and circumstances constituted an outrage so palpable that
any bystander would have been justified, on elementary principles of
justice and humanity, in interposing to prevent its consummation ;
(4) that there were, however, special grounds on which the United
States might, under international law — that being under the circum-
stances the only criterion — assert a right to protect Koszta; (5)
that, although he had ceased to be a subject of Austria and had not
become a citizen of the United States, and therefore could not claim
the rights of a citizen under the municipal laws of either country, he
might under international law derive a national character from
domicil; (G) that, even i-f Koszta was not, by reason of his domicil,
invested with the nationality of the United, States, he undoubtedly
possessed, under the usage prevailing in Turkey, which was recog-
nized and sanctioned by international law, the nationality of the
United States, from the moment when he w-as placed under the pro-
tection of the American diplomatic and consular agents, and received
from them his tezkereh; (7) that, as he was clothed with the nation-
ality of the United States, and as the first aggressive act was com-
§ 491,] KOSZTA CASE : INTERPRETATIONS. 845
mitted by procurement of the Austrian functionaries, Austria, if she
ui^held what Avas done, became in fact the first a^i^gressor, and was not
entitled to an aj^ology for the measures adopted by Captain Ingra-
ham to secure his release; (8) that Captain In«rniham's action was
further justified by the information Avhich he received of a plot to
remove Koszta clandestinely, in violation of the amicable arrange-
ment under which he was to be retained at Smyrna while the question
of his nationality was pending; (9) and finalW, that, as the seizure
of Koszta was illegal and unjustifiable, the President could not con-
sent to his delivery to the consul-general of Austria at Smyrna, but
expected that measures would be taken to causae him to be restored to
the condition he was in before he was seized.
By an agreement signed July 2, 1853, by the xVmerican consul and
the Austrian consul-general at Smyrna, Koszta had been placed in
the custody of the French consul-general, who was not to deliver
him up except upon a requisition of both those officials. Such a
requisition, addressed to the French consul-general, was signed by
them October 14, 1853, under instructions received from the American
and Austrian ministers at Constantinople; and on the same day
Koszta took passage on the bark Sultana for Boston. The Austrian
minister at Constantinople had sought in the correspondence to
reserve the right of Austria to proceed against Koszta in case he
should again be found in the Turkish dominions; but the American
consul at Smyrna refused to sign a requisition containing such a
reservation, and the requisition on which Koszta was, with Austria's
concurrence, actually released, was unconditional."
From the understanding that had been official^ established by
Mr. Marcy and his successors, as to the exceptional nature and
peremptory limitations of the Koszta case, a departure was years
afterwards abruptly made, Avhen, as is elsewhere shown.'' it was
intimated (1) that, according to Mr. Marcy, a declaration of intention
entitles the declarant to the protection of the United States in coun-
tries other than that of his origin, and (2) that where an individual,
after making his declaration of intention, leaves the United States, the
Govenmient nuiy require that he be permitted to return and be natu-
ralized. Had occasion arisen to make either of these intimations ef-
fective, the necessity of defending them exclusively on their merits,
without the aid of ])recedent, doubtless avouUI have l)ecome apparent,
to say nothing of the fact that, from the second conception, a certain
l^ractical and awkward inconsequence would have resulted if tiie
individual, after his duress was removed, had decided not to eonie to
the United States, or if, even after returning to the United States,
he had declined to be naturalized.
<»44 Brit. & For. State I'ap. 103G. & Supra, pp. M.-JO-rMO.
846 DOMTCIL. [§401.
In 1885 a new position, nioir 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 State?
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 pro-
tection from this Government, in the nuiintenance 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 Govern-
ment of the United States " will protect him in all the rights
which the law of nations attaches to domicil." ^ In the Presi-
dent'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 citi-
zen," 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 hiternational law,' " and that it was important, " within
the scope of national legislation, to define this right " of " alien
domicil " as distinguished from " Federal naturalization."
By this recommendation, the President, whose views on the sub-
ject 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 citi-
zenship, embodied in existing law, for the subjective and circumstan-
tial test of domicil. But qualified as the recommendation was. Con-
gress took no action upon it ; and the vieAv embodied in the amend-
ment of the personal instructions, although it was occasionally reit-
erated in terms similarly indefinite in other documents, seems gradu-
ally to have fallen into desuetude. It directly appears, indeed, that
Mr. Ba3'ard 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 Seilliere, given below, he says : " The
question of domicil is a matter of inference from circumstances
which are often shifting, uncertain, and complex. . . . The
o Supra, p. 522. » Wharton Int. Law Dig. II. 359.
§491.] KOSZTA case: interpretations. 847
rights of domicil and of nationality are not identical, and are often
entirely distinct and independent." When the instructions to diplo-
matic 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 Avith respect to aliens who
have declared, but not lawfully perfected, their intention to become
citizens of the United States, is very simple.
" ^Vlien 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 onginal
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 com-
mercial 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, 188.5, Whartou's Int.
Law Dig. II, 359-.3(J0.
See, also. Mr. Bayard. Sec. of State, to Mr. Beard. April 8. 188i5, 155 MS.
Doiu. Let. 18 ; Mr. Bayard. Sec. of State, to Mr. Ueuby, niiii. to Cliiiia'
No. 197, May 5, 1887, MS. Inst. China. IV. 2(J9.
The view above expressed reflects the gloss first put upon the
Koszta case in 1884. (Supra, pp. 839-340.) The intimation, liowever,
that a declarant acquired special rights as against the country of his
'"''oiiginal (ilJegldiice " 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. Ma rev. not oidy 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 :
848 DOMiciL. [§ 491.
In 1880 a report was received at the Department of State that five
American citizens had been impressed into the military service in
Mexico. ^Vinong the persons mentioned was Felipe Burnato, a native
of Mexico. It appeared that in November, 1879, Burnato was ar-
rested 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 impress-
ing its citizens into their military service," Mr. Morgan, the Amer-
ican 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 Avould " seem very ungracious " for Mexico " to
insist ... on making any mif avorable 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.*'
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." '^
Subsequently the Mexican Government, making, after inquiry of
the war office, further reply to Mr. IMorgan's representations, in-
formed 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." f
The consul at Piedras Negras insisted that the men should have
a Mr. Hunter, Act. Sec. of State, to Mr. Morgan, niin. to Mexico, No. 71,
Oct. 1), 18S0, For. Kel. 1880, 77G.
6 For. Rel. 1881. 747.
" Mr. Fernandez, for Mex. ministry of for. aff., to Mr. Morgan, Oct. 30, 1880,
For. Rel. 1881, 748.
<i Mr. Evarts, Sec. of State, to Mr. Morgan, No. 80, Dec. 8, 1880, For. Rel. 1881,
751, 752.
c Mr. Mariscal, luin. of for. aff., to Mr. Morgan, Dec. 24, 1880, For. Rel. 1881,
754. See, however, as to two of the lueu, id. 758.
f For. Rel. 1881, 758.
§491.] KOSZTA case: interpretations. 849
some indemnity. The Department of State wrote Mr. Morgan that
the consul's " suggestion . . . seems to be at least worthy of
consideration," "
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." ^
" So far as political rights are concerned, a mere declaration of
intention to become a citizen of the United States would give Abdel-
lah 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, 1.57 MS. Doui.
Let. 48G.
The foregoing extract is here reproduced, as it is given in AMiar-
ton's Int. Law Dig. II. 3G0. 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 natiA'e of Turkey, who, having made a declara-
tion of intention, desired to pay a " short visit " to Turkey, " without
subjecting himself to the charge of thereby reviving his native alle-
giance." To that end he requested a passport. lie 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 natu-
ralization 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 infer-
ence that he had resumed his Turkish allegiance."
J. II. da C.,. a native of Portugal, who had lived in New York
and at one time served in the United States Xavy, 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. Rol. l.SSl. 7.57.
6 For. Rel. 1881, 701. 702.
"Mr. Hitt, Act. Soc. of State, to Mr. Morgan, No. 17:^, Sept. 14. 18S1, MS. Inst.
Mex. XX. 348.
H. Doc. 551— vol 3—54
850 DOMTcn.. [§491.
he presented strong evidence of doniicil in the United States, yet,
as ho 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 counti-ies
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 Ix'half, it is conceived that domicil and citizenship are not
convertible terms, and this has been the general opinion of the
Department."
Mr. Porter, Assist. Sec. of State, to Mr. Kennedy, cons. gen. at "Shanghai,
No. 28, Nov. 10, 1880, 119 MS. Inst. Consuls, 519.
See, also, Mr. Olney, Sec. of State, to Mr. Deuby, miu. to China, Jan. 13,
1897, For. Rel. 189G, 92,
" 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 api^ealing to this Gov-
ernment for protection, show that he was domiciled in this countr}'
as well as an inchoate citizen by virtue of having declared his inten-
tion, 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,
For. Rel. 1887, 287.
In May, 1887, Baron Seilliere, 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 cita-
tions 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 Pari.s, from " Mr. Mon-
roe 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
§491.] KOSZTA CASE: INTERPRETATIONS. 851
lives. In humanity's name help us; wire commander." By yet
another correspondent Mr. Bayard was adjui-ed, as Secretary of State,
"•' to take counsel of Thomas F. Bayard." June 10, 1887, Mr. Bayanl
cabled to Mr. McLane, then American minister at Paris: " Use your
personal good offices to ascertain the cause of Baron Seilliere's deten-
tion and to obtain his release if possible." June 24, Mr. Bayard Avrote
to Mr. McLane: "It is represented to me that you are fully con-
versant with the facts of the case, and that you only await the instruc-
tionsof the Department to make formal official demand upon the French
Government for Baron Seilliere's release." June 25, however, neces-
sarily without knowledge of this statement, Mr. McLane, in writing
to Mr. Bayard, said: "In my intercourse with Mr. Flourens [French
minister of foreign affairs], though I did not permit my intervention
to exceed the limit prescribed in your instruction, I discussed with
him the question, which was very fully presented by Baron Seilliere's
counsel, as to whether his declared intention of becoming a naturalized
citizen of the United States deprived him of his French citizenshij),
and Mr. Flourens did not conceal from me his decided opinion ad-
verse to such a construction of international law. He said that the
French code, in contemplating the loss of French citizenship, as-
sumed that a new citizenship had been acquired, and I am very sure
that had I been instructed to demand Seilliere's release it would have
been refused, and I should have been involved in a discussion of a
great international question, embarrassed by the facts and circum-
stances of a case involving the police and health laws of this coun-
try." Mr. McLane, July G, wrote further: " I never gave any occa-
sion for the fi'iends of Seilliere to represent to you that I only awaited
instructions to make a formal official demand upon the French
Government for his release, . . . nor shall I, as at present ad-
N'ised, recommend any such action on your part." Mr. McLane also
reported that judicial proceedings had been instituted in behalf of
the baron's children to obtain his release. He was released, though
not by order of court, yet under the operation of French law, July 11),
1887.
For. Rel. 1887, 30.3, 304, 305, 300, 308, 309. 310. 312, ;U3, 343. 340. :i~M.
Subsequently an application was made to Mr. Bayard for a cer-
tificate that the baron had nuide a declaration of intention; that he
had permanently taken up his residence in the United States and was
"domiciled" in New York; and that lie had by such acts "secured
the domiciliary rights and protection of the American citizen under
the laws of the United States Government as to piM-sou and projx'rty,
and is entitled to recover under the laws of the United States and
under international law such personal and ival (>s(ate as is justly and
legally belonging to him in the Republic of France." In support of
852 DOMicrL. [§ 491.
this application, tlie Thrasher and Koszta cases ■wore again cited, thus:
"See quotations from connnunications of Mr. Webster, Secretary of
State, and Mr. Marcy, Secretary of State; and decisions of U. S. Su-
preme Court, as cited in Mr. Webster's conmiunication, ' Treatise on
International Law,' Wharton, vol, 2, sec. 198."
" I have your letter of the 18th instant, in which — after quoting
from my letter of the 12th instant, written in roi)ly to your request
that the Department give a certificate of domicil to Baron Seilliere
according to a form which you then submitted, and my statement to
you that it is not competent for this Department to give a certificate
of any of the facts which are usually recognized in law as constituting
the domicil of an individual — you say that you did not ask for such
certificate, but that I should ' certify ' that I am ' satisfied that Baron
Seilliere had his domicil in the United States.'
" By referring to my letter of the 12th instant, you will find that
the reason stated for my declination to execute the desired certificate
was that ' no such power of certification is vested by law in this De-
partment.'
" By act of Congress there is vested in this Department the power
to issue passports to citizens of the United States. This is the only
certification of national status which the Department is authorized
by law and which it is its practice to make.
" The reason of this practice is obvious. The question of citizen-
ship is a matter of fact, whether the citizenship be by birth or by
naturalization. In the latter case certain legal conclusions have to
be reached by inference from facts which are ascertainable only by
the judicial branch, whose judgments thereon are accepted as con-
clusive.
" The question of domicil is a matter of inference from circum-
t=tances which are often shifting, uncertain, and complex. Such a
certificate as you request would, therefore, not be a statement of fact
which the Department is authorized by law to certify, but the pro-
mulgation of a judgment, which is not an executive function.
" The practice of the Department is invariable and correct in prin-
ciple; it is also impartial, and applies equally to those who are and
those who are not citizens of the United States. The rights of domi-
cil and of nationality are not identical, and are often entirely dis-
tinct and independent.
" The case of Koszta has no relevance to the present question. That
was the case of international controversy existing, and entertained
as such by the President, in which his decision was required.
" It was not a judgment or opinion in anticipation of a case that
might arise; nor did it constitute an exception to the uniform course
§491.] KOSZTA CASE: INTERPRETATIONS. 853
of this Department, which is to decline to pronounce anticipatory
judgments."
Mr. Bayard, Sec. of State, to Mr. Develin, Oct. 21, 1887, For. Rel. 1887,
355. See infra, pp. 924-925.
Where a citizen of the United States invoked protection for a
'• friend " of " Scotch nationality, domiciled formerly in the United
States, but now engaged in missionary work in Japan," the Depart-
ment of State said : " Mere domicil in the United States does not
entitle a person to claim the official protection of this Government.
Should occasion arise, this Department would, however, use its good
offices to aid your friend in any Avay which it properly could."
Mr. Uhl, Act. Sec. of State, to Mr. Tucker, Jan. 9, 1895, 2{X) MS. Dom. Let.
197.
Lem Moon Sing, whose exclusion from the United States as an
alien Chinese laborer had been ordered by executive officers of the
United States, applied for a writ of hahecifi corpus. By the statute
under which the order was made, the exclusive control of the subject
was committed to such officers. Lem Moon Sing sought, however, to
escape the disability of alienage, and to secure, through the interven-
tion of the courts, his readmission to the United States, on the ground
that he had a " permanent domicil " in the United States, and was
lawfully engaged in mercantile pursuits at San Francisco; that this
domicil had never been surrendered or renounced by him; and that
the purpose of his absence from the United States was merely that of
" a temporary visit to his native land, with the intention of returning
and continuing his residence in the United States," in the prosecution
of his business. These statements were not controverted. Mr. Jus-
tice Harlan, delivering the opinion of the court, said :
" He [Lem Moon Sing] is none the less an alien because of his hav-
ing a commercial domicil in this country. While he lawfully remains
here he is entitled to the benefit of the guarantees of life, liberty, and
property, secured by the Constitution to all persons, of whatever
race, within the jurisdiction of the United States. His personal
rights when he is in this country, and such of his proi)erty as is here
during his absence, are as fully protected by the supreme law of the
land as if he were a native or naturalized citizen of the United States.
But when he has voluntarily gone from the country, aud is beyond its
jurisdiction, being an alien, he cannot reenter the United States in
violation of the will of the Government as expressed in enactments of
the law-making power. He cannot, by reason merely of his domicil
in the United States for purposes of business, denumd that his chiim
to reenter this country by virtue of some stiitute or treaty, shall be
854 DOMiciL. [§ 491.
doterminod ultimately, if not in the first instance, by the courte of the
United States, rather than exclusively and finally, in every iiLstance,
by executive officers charged by an act of Congress with the duty of
executing the will of the political department of the Government in
res})ect of a matter wholly political in its character. lie left tho
country subject to the exercise by Congress of every power possessed
under the Constitution."
Lem Moon Sing v. United States (1895), 158 U. S. 538, 547-5^.
The term " couuuercial doniicii," in the foregoing extract, seems to have
been employed, as it apparently was in Lau Ow Bew v. United States.
144 U. S. 47, 62, 03, merely as descriptive of the domicil of choice of
the petitioner, who was a merchant. In l)oth cases a domicil in the
usual sense was alleged, and tlie admitted facts fully sustained the
allegation. This circumstance seems to have been overlooke<l in
United States v. Chin Quong Look, 52 Fed. Rep. 203, in citing the
case of Lau Ow Bew. But, see Fong Yue Ting v. United States, 14»
U. S. 698. 724.
CHAPTEK XII.
PASSPORTS.
I. Natube and Functions, § 492.
II. Authority to Issue.
1. In the United States, § 493.
2. In foreign countries, § 494.
III. To Whom Issued.
1. Issuance forbidden to any but citizens, § 495.
2. Inhabitants of annexed, or occupied, territory, § 496.
3. Indians, § 497.
4. Persons of color, § 498.
5. Persons included in passport, § 499.
6. Women, § 500.
7. Minor children, § 501.
8. Declaration of intention, § 502.
IV. Applications.
1. Forms and evidence, § 503.
2. Native citizens, § .504.
3. Naturalized citizens, § 505.
4. Citizenship through parent's naturalization, § 50G.
5. Evidence of previous passport, § 507.
G. Oath of allegiance, § 508.
7. Name of applicant, § 509.
8. Titles, personal or official, § 510.
9. Fees, § 511.
V. Grounds of Refusal.
1. Discretion as to issuance, § 512.
2. Renunciation of allegiance, § 513.
3. Effect of foreign domicil, or residence. § 514.
4. Foreign residence of citizens by birth.
(1) I*ersons born in the United States, § 515.
(2) Persons born abroad, S r»l(!.
5. Foreign residence of naturalized citizens.
(1) In country of origin, § 517.
(2) In third countrj-, § 51S.
6. Statement as to intention to return, § 519.
7. Connection with American business interests, § 520.
8. Missionaries, § 521.
9. Effect of e.xtraterritoriality, § .522.
VI. Duration of I'assi'orts.
1. Time limit, § .52.3.
2. Cancellation, § 524.
Vll. International Effect.
1. Evidential force, § .525.
2. Vise, § 52(5.
3. False use, § 527.
856
B56 PASSPORTS. [§ 492.
VIII. Special Passports, § 528.
IX. Local Papkrs.
1. European countries, § 52J).
2. American countries, § 530.
3. China, § 531.
XII. War Regulations.
1. American Civil War, § 532,
2. Other cases, § 533.
I. NATURE AND FUNCTIONS.
§ 492.
A passport is the accepted international evidence of nationality.
In its usual form, it certifies that the person described in it is a citizen
or subject of the country by whose authority it is issued, and rcfjuests
for him permission to come and go, as well as lawful aid and pro-
tection.
Other documents, such as safe-conducts, letters of protection, and
special passes for individuals, and even passes for vessels, are often
referred to as passports, and not altogether inaccurately, since their
object is to secure for the particular person or property freedom of
movement and lawful protection. But these documents are used
chiefly in war, and are granted on the strength of the personality
rather than of the nationality of the individual, being issued, accord-
ing to the circumstances of the case, even to enemies.
The Attorney-General advised, in 1866, that the Secretary of State
was not authorized to furnish the owners of an American merchant
vessel with a safe-conduct to the American ministers and naval
officers in the East." A special passport or protection paper was,
however, issued by Mr. Blaine, in 1890, to an American vessel going
on a long and hazardous voyage ; ^ and certificates of American char-
acter are given to American-owned but foreign-built vessels." Such
papers hardly fall within the provisions of the law relating to pass-
ports. The terms of the law obviously refer to certificates of nation-
ality issued to individuals.
The Department of State seems in earlj'^ times occasionally to have
issued a certificate of citizenship, neither in the form nor in the
nature of a passport. Thus Mr. Pickering, Secretary of State, cer-
tified under the seal of his Department, Aug. 3, 1796, that " Ferdi-
nand Gourdon, of the city of Philadelphia, merchant, is, and for at
least nine years last past has been, a citizen of the United States of
America." Again, on Aug. 13, 1796, Mr. Pickering certified that it
appeared " by authentic documents now before me," that on June 22,
o Stanbery, At Gen., 12 Op. 05. & Supra, vol, 2,' p. 1068. " Supra, § 323.
§492.] NATURE AND FUNCTIONS. 857
1784, "Andreas Everardiis Vanbraam Hoiickgeest, before, that time
a subject of the United Netherhuids, was duly admitted and became
a citizen of the State of South Carolina, pursuant to the laws of
that State, and consequent!}', by virtue of the Articles of Confedera-
tion, a citizen of the United States; " that no subsequent act appeared
to have "divested him of his citizenship;" and that he therefore
" recognized " him as " a citizen of the United States of America."
9 MS. Dom. Let. 249, 2G5.
For the form of the first passiwrt found in the records of the Passport
Bureau of the Department of State, see Hunt's American Passport. 77.
In 186G two persons named Albee and Gordon, claiming to bo
American citizens, complained that the United States consul at
Buenos Ayres had refused to give them duplicates of " protection
papers " to secure to them their treaty rights as citizens of the
United States. The action of the consul in refusing to issue " pro-
tection papers " was approved, passports being the only " protection
papers " known to the law or sanctioned by the Department of
State; and it was directed that the practice of granting so-called
" protection papers," which seemed to have prevailed at the consul-
ate, should be discontinued. It was stated, however, that " the
Argentine Government or its agents might reasonably be expected
to grant to the claimants some form of certificate of protection or
safe-conduct such as is technically known as ' protection papers.' "
Mr. Seward, Sec. of State, to Mr. Aslwth. min. to Argentine Republic, No.
27, March 27, 18G7, MS. Inst. Argentine I{ei)ub. XV. 275.
In the course of this instruction, Mr. Seward said :
"Passports are the only 'protection papers' known in the law, or sanc-
tioned by this Department. What are technically called ' prot<H'tion
papers ' are used in our international intercourse with uncivilized
nations. I^rotection papers ai'e a feature in the jjrinciple of asylum,
which we maintain with barbarous or semicivilized states, but no-
where else."
The passport is the only attestation of American nationality which
the United States legation is authorized to give.
Mr. Bayard, Sec. of State, to Mr. McLane. min. to France. .Inly 2. I.S.S.'),
For. Bel. 1S8.-). :]TA.
See, to the same effect, Mr. .Vdee, Act. Sec. of State, to .Mr. Terres. Sept.
2(>, 1893, For. Bel. 1894. ;{4<'..
In reply to a request from a person for a letter to the ITnited
States minister in Germany recommending the person in question
for protection in case he should return to Germany, the Department
said that it never issued such a letter ; that the only paper it isbued to
858 PASSPORTS. [§ 492.
citizens going abroad, as an evidence to foreign governments of their
nationality, was a passport.
Mr. Blaine, Sec. of State, to Mr. Butterworth, March 4, 1890, 170 MS.
Dom. Let. 554.
"A passport is the only paper issued by the Department for the
protection of a citizen " abroad.
Mr. Foster, Sec. of State, to Mr. Clarke, M. C.Dec. 20, 1892, 180 MS. Doui.
Let 500.
" Passports are issued by this Department to naturalized citizens
upon the production of the certificate of naturalization. There is no
law of the United States requiring a passport to state when a natural-
ized citizen left the country of his birth, or to embody that statement
in the passport. It has not been the practice of this Department to
insert such a statement in the passports issued to former Turkish sub-
jects or to any other naturalized citizens. A different course might
imply that the right of the foreign government to participate in or to
make th€ naturalization of its subjects conditional was acknowledged
here. This it has never been and probably never will be."
Mr. Bayard, Sec. of State, to Mr. Emmet, May 20, 1885, For. Rel. 1885,
847.
" There is neither law nor regulation in the United States requir-
ing those wIk) resort to its territories to produce passports. Since
the foundation of the Government such documents have never been
i-equired save in time of war, and resort to this restriction upon the
freedom of travel was happily not found to be necessary during the
recent hostilities with Spain. Neither is the production of a pass-
port as evidence of identity or civil condition a requisite to residence
in any of the several States of the Union.
" The certificates issued to Chinese subjects coming to the United
States are hardly an exception to this rule, being in the nature of
certificates of identity and of individual right to enter the United
States under the privileges granted by treaty l^etween the United
States and China to certain classes of Chinamen."
Mir. Adee, Act. Sec. of State, to Sir J. Paimcefote, Brit, min., No. 1194,
Sept. 22, 1898, 24 MS. Notes to Brit. Leg, 329.
" It, has been determined to inaugurate a new system by which no
American citizen of foreign birth shall receive passports without
being informed of those general provisions of law of the land of his
birth which it is important for him to know before he returns to it.
§ 492.] NATURE AND FUNCTIONS. 859
He will therefore receive with his passport a brief and easily compre-
hended statement applicable to his case."
Mr. Hay, Sec. of State, to Mr. Herdlislia, charge at Vienna, Dec. 10, 1900,
MS. Inst. Austria, IV. 543.
For the statements applicable to the various countries, see For. Rel. 1901,
under the proper heads.
See, also, the chapter on Nationality, title Expatriation, supra, § 431
et seq.
"As a means of controlling individuals, the efficacy of passports is
questionable, for little or no impediment can exist to their procure-
ment^ either in a regular way upon proof of citizenship, or by subter-
fuge, by the few to whom precautionary measures might apply and
who are interested in avoiding them, while upon the mass of honest
travelers they impose an expensive and useless burden. Admitting
that pas.sports may serve as a check in certain cases, their u.sefulness
in this sense is more than counterbalanced by the international con-
siderations attaching to such documents. Passj^orts are frima facie
evidence of the individual's right as a citizen to the protection of the
Government which issues them, and a special responsibility rests upon
the Government that disregards such evidence. . . . The modern
systems of travel, moreover, are on definite and regular lines of com-
munication. Individuals traveling by separate conveyance from one
country to another are rarely encountered, and to them the conditions
of the passport system do not apply. By the aid of the electric
telegraph instant notice can be given of anything like the formation
of a hostile expedition, or even of the embarkation of a single danger-
ous individual."
Mr. Bayard, Sec. of State, to Mr. Muruajja, Span, niin.. May 19, 188fi, MS.
Notes to Spain, X. 420.
" Requiring on their part no such documentary evidence from per-
sons landing in the United States from Spain or any of the Spanish
dependencies, the United States cannot view the exaction of passports
by Spain in the light of reciprocity ; but, on the contrary, as a posi-
tive discrimination against their citizens, inasmuch as no passports
are required in the Antilles of passengers from Europe or the British
possessions in North America. .■ . .
" No interference is intended with the option of the individuals in
providing himself with any convenient means of establishing liis citi-
zenship and identity. In the event of proof of American citizejisliip
becoming necessar}^, proper identification can 1k^ made, or a pas.sport
issued whenever specially required. I draw a distinction between the
right of the citizen to obtain from his government evidence of cori-ela-
tive allegiance and protection and the exaction by a foi-eign goveru-
860 PASSPORTS. [§ 492.
ment of such evidence in respect only of the citizens or subjects of a
particular country.''
Mr. Bayard, Sec. of State, to Mr. Muruaga, Span, inin., May 19, 1886,
MS. Notes to Si)aiii, X. 420.
See, also, Mr. Bayard. Sec. of State, to Mr. Foster, mln. to Spain, No. .'W»5,
May (!. l.SJC>. For. Bel. 188."), 711 ; Mr. Foster to Mr. Bayard, No. XH,
June 30, 1885, id. 72G; Mr. Bayard to Mr. Foster, No. 390, Aug. 21,
1885, id. 751.
" The question of national discrimination is broadly involved, and
I do not understand Senor Muruaga's declaration as meeting the dis-
favor shown by demanding from travelers leaving the United States
passports which are not re(piired in the case of persons going to Cuba
from other countries. My recent note to the Spanish minister has
intimated the indisposition to accept as a reason for such discrimina-
tion the suggestion he appeared to imply, that residents in the United
States are, more than in other countries, a source of peril to peace and
order in the Antilles, This Government, of course, objects to any dis-
crimination, no matter in what manner expressed, against its citizens."
Mr. Bayard, Sec. of State, to Mr. Curry, June 14, 1886, MS. Inst, to Spain,
XX. 230.
"A recent dispatch from the United States consul-general at Ha-
vana communicates to me a number of letters addressed to him by
American citizens who, having entered the island without the produc-
tion of a passport being required as a condition of landing, have suf-
fered considerable delay and some expense through the exaction of a
passport as a condition of being permitted to quit the island. This
rule appears to be enforced even when the passenger is merely in
transit and transferred from one vessel to another for the purpose of
making the continuous voyage between ports of the United States and
Mexico. In nearly every instance the w^riters state that they had
made inquiry at the United States port of sailing, and had been there
informed that no passport was needed by them upon landing in Cuba,
and that a permit to depart could be obtained through the consul of
the United States, at a trifling cost, said in several of the letters to be
30 cents. The consul-general, however, reports the charge to be 30
cents for vise of a passport, and $4.05 for the issuance of a permit of
departure when the party is unprovided with a passport. ... I
fail to see the justice of imposing restrictions and burdens upon the
departure of American citizens from the island which are not im-
posed upon their landing, and I should be glad to hear that a more
uniform and conspicuously rational rule has been adopted. May I
trust that, in the interest of the large and mutually beneficial inter-
§492.] NATURE AND FUNCTIONS. 861
course between the United States and the Antilles, you will use your
good endeavors toward a change in this regard ? "
Mr. Bayard, Sec. of State, to Mr. Muvuaga, Span, min., Ai)ril 11, 1887,
For. Rel. 1887, 1029.
See, as to the complaints referred to, Mr. Bayard, Sec. of State, to Mr.
Curry, min to Spain, No. 141, Nov. 23, 1880, For. Kel. 1887, 97"); same
to same. No. 180, March 18, 1887, id. 98."); same to same. No. 181,
March 21, 1887, id. 991 ; Mr. Adee. Act. Sec. of State, to Mr. Curry, No.
185, April 16, 1887, id. 994; Mr. Bayard to Mr. Curry, No. 187, April
25, 1887, id. 995; Mr. Bayard to Mr. Strobel, charge at Madrid. No.
t28, Oct. 20, 1887, id. 999 ; Mr. Strobel to Mr. Bayard, No. 271, Nov. 2,
1887, id. 1002.
" It appears from explanations forwarded to me by the captain-
general of Cuba in reference to passports, that these are not required
from foreigners during a month's travel. Beyond this time, accord-
ing to the alien law, they must provide themselves with a passport.
This is more or less a measure of internal policy. In the first case
they are considered under the law as transients, in the second as
residents.
"Against this I have already remonstrated in Madrid, but to avoid
in the meantime all source of trouble, I deem it necessary to instruct
all bur consuls in the United States to furnish a vise to American
citizens going to Cuba at a cost of $1."
Mr. Muruaga, Span, min., to Mr. Bayard, Sec. of State, June 10, 1887,
For. Rel. 1887, 1030.
" The requirement of a passport or permit to quit a country is
common and is enforced at the present time by important states,
such as Russia, Turkey, and Spain in the Spanish Antilles. The
right to prescribe such a formality can not well be disputed, but the
amount of the fee (6 gourds) may warrant friendly representations
against so onerous a charge."
Mr. Sherman, Sec. of State, to Mr. Powell, min. to Ilayti, Oct. 2:5. 1897,
For. Rel. 1897, 34.3, referring to a proposed law reiiuiring all jiersons
leaving Ilaytian ports to provide themselves with piissi)orts.
See, also, Mr. Uhl, Act. Sec. of State, to Mr. Terres, No. 57, Aug. 24, 18i>4,
MS. Inst. Ilayti, III. 407.
"No passports are necessary for the entrance into Culm and Porto Rico
of passengers from Spain or el.sewhere." (.Mr. Hay, Sec. of State,
to Sir J. Pauncefote, Br. amb., Jan. 21, 1899, For. Rel. 1899, 338.)
868 PASSPORTS. [§^8.
II. AUTHORITY TO ISmB.
1. In the United States.
§493.
Down to the act of Aug. 18, 1856, the issnance of passports was
not regulated by law. "Wliile they were granted by the Secretary of
State, in the exercise of his proper functions, papers designed to
serve the same purpose were issued by the governors of States and
other local authorities, and even by notaries public. The practice
of the Department of State itself in such matters was, however,
exceedingly loose. Passports were on occasion sent out to a collector
of customs or other official, with instructions to hand them over, on
" satisfying " himself that the applicants were citizens of the United
States."
Complaints of the Mexican Government that passports were fraud-
ulently obtained led to the adoption of special precautions in regard
to persons who claimed American citizenship by virtue of residence
in Louisiana at the time of its cession to the United States.'^
The first step taken toward preventing the issuance of pjissports
in the United States by local authorities appears to have been due
to the refusal of foreign governments and their representatives to
recognize such documents. The Department of State issued a notice
calling attention to the facts.
" Your letter of the 15th instant has been received. The notice
from this Department in relation to passports, which is referred to
by you, was not issued in consequence of any arrangements with for-
eign governments, nor was it founded on any information having
particular reference to passports given by the executive of Massa-
chusetts.
" It is within the knowledge of the Department that the diplomatic
agents of foreign governments in the United States have declined
authenticating acts of governors or other State or local authorities;
and foreign officers abroad usually require that passports granted by
such authorities shall be authenticated by the ministers or consuls of
the United States. Those functionaries, being thus called upon, find
themselves embarrassed between their desire to accommodate their
« Mr. Breut to Mr. Swartwout, collector at New York, April 24, 1832, 25 MS.
Doui. Let. 79; Mr. Forsyth, See. of State, to Mr. Swartwout, May 13, 1830, 28
id. 315.
6 Mr. Livingston, Sec. of State, to Gov. Roman, of La., Aug. IG, 1831, 24 MS.
Dom. Let. 201 ; Mr. Brent, chief clerk, to Mr. Hurst, Feb. 11, 1832, 25 id. 15 ; Mr.
Brent to Lieut. R. B. Lee, April 20, 1833, id. 293.
§ 493.] AUTHORITY TO ISSUE. 863
fellow-citizens and their unwillingness to certify what they do not
officially know ; and the necessity of some uniform practice, which
may remove the difficulties on all sides, has been strongly urged upon
the Department.
" With the practice of Massachusetts in issuing certificates of citi-
zenship to citizens of that Commonwealth going abroad, this Depart-
ment has no concern. If those documents have answered all the
purposes of passports in all parts of the civilized world, it was, prob-
ably, owing to their having been authenticated by a minister or consul
of the United States, more especially in countries where vigilance is
exercised in regard to the introduction of foreigners. The noitice has
no other object than the convenience of those concerned."
Mr. Forsyth, Sec. of State, to Mr. Bangs, Sec. of the Commcnwealth of
Mass., April 21, 1835, 28 MS. Dom. Let. 1.
Early in 1854 Mr. Marcy, as Secretary of State, complained of the
action of a notary public in New York City in issuing certificates
which were designed to serve as passports and which had in some
instances served that purpose. " You have erred," said Mr. Marcy,
" in stating to persons, as you say you have done, that no passports
are issued in America, but only certificates of citizenship by the State
Department. Although the passport of this Department is substan-
tially only a certificate of citizenship, still it is a passport, and be-
lieved to be almost identical in form with that issued by other govern-
ments. The head of this Department is the only officer in the United
States who can be recognized by the authorities of foreign govern-
ments."
Mr. Marcy, Sec. of State, to Mr. Nones, April 14, 1854, 42 MS. t)oni. Let.
303.
See, also, Mr. Marcy to Gov. Clark, April 2. 1855, 43 MS. Dom. Let. 473 ;
to Mr. Nones, April 11, 1854, 42 id. 354.
" To preserve proper respect for our passports it will be necessary
to guard against frauds as far as possible in procuring them. I
regret to say that local magistrates or persons pretending to have
authority to issue passports have imposed upon persons who go
abroad with these spurious papers. Others, again, who know that
they are not entitled to passports — not being citizens of the United
States — seek to get these fraudulent passports, thinking that they
will protect them while abroad."
Mr. Marcy, Sec. of State, to Mr. Fay. nun. to Switz.. Oct. 4, 1854. MS.
Inst. Switz. I. 20.
"The object of this communication is to apprise you that the
diplomatic and other agents of the United States abroad were in-
864 PASSPORTS. [§ 403.
ytructed not to acknowledge passports or certificates of citizenship
other than those issued from this Department."
Mr. Marey, See. of State, to Mr, Horr, mayor of St. LouIh, Feb. 5, 1855,
43 MS. Doiii. Let. 3G5.
The act of August 18, 1850), 11 Stat. GO, as embodied in the Revised
Statutes of the United States, § 4075, provides that " tlie Secretar}'
of State may grant and issue passports, and cause passports to be
granted, issued, and verified in foreign countries by such diplomatic
or consular officers of the United States, and under such rules as
the President shall designate and prescribe for and on behalf of the
United States."
The same act (§ 4078 R. S.) forbids under penalty " any person
acting, or claiming to act, in any office or capacity, under the United
States or any of the States of the United States, who shall not be law-
fully authorized so to do," to " grant, issue, or verify any passport or
other instrument in the nature of a passport, to or for any citizen of
the United States, or to or for any person claiming to be or desig-
nated as such, in such passport or verification."
See Mr. Fish, Sec. of State, circular No. IG, Jan. 10, 1872, MS. Inst. Arg.
Rep. XVI. 1.
The inhibition extends to officials in the United States as well as abroad,
and to State as well as Federal officials (Black, At.-Gen., 1850, 0
Op. 350.)
See, also, Mr. Fish, Sec. of State, to Mr. Coke. :March 23. 1875, 107 MS.
Dom. Let. 229 ; to Mr. Kellogg, .Tune 5, 1875, 108 id. .373.
Mr. Frelinghuysen, Sec. of State, to Mr. Brewster, Feb. 12, 1884, 149 MS.
Doni. Let. 005; to Mr. Alvarez. .Tan. 9. 18S.".. l.")3 id. <n0.
Mr. Davis, Assist. Sec. of State, to Mr. Speakuian, Dec. 18, 1884, 153 MS.
Dom. Let. 464.
By the act of June 14, 190-2, § 4075 is amended by inserting, after
the phrase " consular officers of the United States," the words " and
by such chief or other executive officer of the insular possessions of
the United States;" and, by the same act, § 4078 is amended by
extending the penalty therein j)rescribed to any person who, whilo
acting or claiming to act " under the United States, its possessions, or
any of the States," performs the prohibited act to or for " any person
not owing allegiance, whether citizen or not, to the United State ."
(32 Stat., part 1, p. 380.) This last phrase is obviously designed
to embrace the native inhabitants of Porto Rico and the Philippines
whose status has been defined by Congress as that of " citizens of
Porto Rico " and " citizens of the Philippine Islands," respectively,
and who are declared to be entitled to passports as such. See supra,
§ 379, and infra, § 496.
§ 493.] AUTHORITY TO ISSUE. 865
A " certificate of identity," issued by a notary to a person about to
travel abroad, is a paper in the nature of a passport, and its issuance
is an infraction of the statute.
Mr. Evarts, Sec. of State, to the governor of New York, June 8, 1877, 118
MS. Dom. Let. 516.
" Certificates of identification," which were issued by the mayor of
New Orleans to persons going abroad, and which, whatever the pur-
po.se they may have been intended to serve, were on various occasions
presented and used as passports, were considered to fall within the
inhibition of the statute, and the mayor was requested to discontinue
the issuance of them.
Mr. Hill, Assist. Sec. of State, to the mayor of New Orleans, Dec. 5, 18'JU,
241 MS. Doni. Let. 429.
" The passport provided by this Department is a certificate of citi-
zenship for identification and protection of an American citizen who
is about to visit a foreign country. The paper submitted by you is a
certificate of citizenship for exactly the same purpose. Aside from
the fact that, being to all intents and purj)oses a passport, it cannot
be lawfully issued by you, it is very objectionable in some of its
declarations. "So person other than a chief officer of this Depart-
ment can with propriety certify officially that the bearer of the certifi-
cate has fully and satisfactorily ' complied with the requirements
established by the Department of State of the United States, to
entitle said bearer to a United States passport.' "
Mr. Bayard, Sec. of State, to Mr. Conoly. Feb. 24, 188(1, 150 MS. Doni.
Let. 147.
In 1889 the attention of the Department of State was called by
some of its agents abroad to a certificate which certain persons had
sought to use as passports. The cej'tificate. which was signed by the
governor of Minnesota and l)ore the seat of that State, set forth that
the bearer was '* a worthy and respected citizen " of ^liiuiesota and
that he was '' about leaving home to travel in Euro])e," and bespoke
for him " the kind attention of all to whom these ])resents may
come." Mr. Blaine, as Secretary of State, submitted the matter to
the governor of Minnesota, and called attention to sees. 407."). 4078,
R. S. It seems that it had been the custom for many years to issue
such papers, but the practice was discontinued.
For. Rel. 1890, 330. 382, 335.
The certificate of a governor, under the seal of the State. recoinniondinK
a person's private enterprise, but not rei)resentinK him to be a «'iti/.en
of the T'Uited States, is not a paper in tlie nature of a passjjort.
(Mr. Whartim. Act. Sec. of State, to Mr. Lincoln, min. to Englnnd,
No. 4(>(). March 24. 1891. MS, Inst. (Jr, hv., XXIX. 435.)
H. Doc. boi — vol 3 50
866 PASSPORTS. [§ 494.
A certificate and affidavit issued by a consul of the United States
in Germany to citizens of tlie United States about to marry in Ger-
many, as to their citizenshij). is not a passport.
Mr. Evarts. Sec. of State, to .Mr. Everett, elijirj,'e at Berlin, Apr. LM!, 1878,
MS. Iiist. Uerniany, XVI. liKi.
The statutory prohil)ition against the issuance of any paper in the
nature of a passport applies only to persons claiming to act in some
office or capacity under the United States or one of the several States,
and therefore does not inhibit a foreign consul in the United States
from granting to an American citizen a safe-conduct for use in the
consul's country. As such a paper might, however, be regarded by the
authorities of the foreign country as an attestation of the bearer's
citizenship and therefore as a " passport,"" it is desirable that a safe-
conduct or equivalent certification should be endorsed on the citizen's
national passport instead of being given as an independent document.
Mr. Hill. Act. Sec. of State, to Mr. Terres, No. 373, Sept. 29, 1899, MS.
Inst. Hayti, IV. 187.
" On all passi:)orts issued by Mr. Gresham the signature was
stamped. This was also the case with passports issued during the
terms of Secretaries Seward, Evarts, Blaine, Foster, and Olney, and is
the custom at the present time. On passports issued by Secretaries
Fish and Bayard the signature was in writing."
Mr. Sherman, Sec. of State, to Mr. Storer, uiin. to Belgium, Sept. 18,
1897, For. Kel. 1897, 27, 28.
"Application for a' passport by a i^erson in one of the insular pos-
f^essions of the United States should be made to the chief Executive of
such possession.
" The evidence required of a person making application abroad ov
in an insular possession of the United States is the same as that
required of an applicant in the United States."
Rules Governing the Granting and Issuing of Passports in the United
States, Sept. 12, 1903.
See, supra, the reference to the act of June 14, 1!X)2.
2. In Foreign Countries.
§494.
In the early days of the Government, consuls of the United States
appear to have been in the habit of granting passports or certificates
of citizenship on their own responsibility. Thus, in a note to Mr.
King, American minister at London, of November 3, 179(), Lord
Grenville said; "The consuls of the United States, residing in Hia
§ 494.] AUTHORITY TO ISSUE. 807
Majesty's dominions, have, for sometime i)ast, been in the habit
of granting to seafaring persons, certificates nnck^r their consuhir
seal, purporting that the bearers of them are citizens of the United
States, and as such liable to be called upon for the service of their
own country, and that they are therefore not to be interrupted or
molested by any persons whatever. I have reason to believe that
these certificates have frequently been granted on very slight and in-
sufficient evidence, and in a great number of cases to persons who were
in fact British seamen. But, independently of this abuse, I am under
the necessity of representing to you, on the part of His Majesty's
Government, the insuperable objections which api)ly to the prin-
ciple of a jurisdiction in this respect, assumed and exercised within
His Majesty's dominions by the consuls of a foreign nation." In
a letter to the American consuls in England, Mr. King, on November
18, said : " I am at present inclined to believe that the administration
I of oaths by our consuls, in these or any other cases, to liritish subjects,
is neither necessary nor proper. ... I would not be understood
as giving a settled opinion on this point. I ouglit not to omit observ-
ing to you that neither our laws respecting consuls, nor the late law
for the relief and protection of xVmerican seamen, give to our consuls
any authority to grant certificates of citizenship, and I have seen no
instruction from the Executive that authorizes it." Mr. King, on
December 10, 1796, wrote to the Department: "I do not consider
myself authorized to instruct our consuls in this or in any other
instance."
Am. State Papers, For. Rel. II. 140, 147.
See. further, Lord Greiiville's note to Mv. Kinj:. Mar. 27. 1707. id. 148.
"The eighth section of the act of Feb. 28, 1803 (-2 Stat. '20.')), pro-
vided that if any consul, vice-consul, connnercial agent, or vice-com-
mercial agent should knowingly issue a passport or other paj^er to an
alien, certifying him to be a citizen of the United States, he should be
punished by a fine not to exceed one thousand dollars. The (Jeneral
Instructions to the Consuls and Commercial Agents of the United
States, published in 1855, added to this the i)enalty of deprivation of
office. . . .
" Until the act of 185(5 prohibited a consular oflicer from issuing a
passport in a country where there was a diplomatic agent, except dur-
ing the hitter's absence, passports were granted by consuls as a r(>gular
part of their duties; but June 1, 1853, Secretary Marcy issued a cir-
cular ordering that whenever there was a legation and consulate in
the same place, the former only should issue passi)()rts. . . .
" From 185(), till the consular regulations now in force went into
effect lu 1890, a consul-general or, in his absence, a consul had au-
868 PASSPORTS. [§ 404.
thority to issue passports in colonies; but the regulations of 1890
l^rohibited, generally, consular officers from issuing passports, unless
specifically authorized so to do by the Department [of State], this
])rohibition not, however, extending to the issuing of passports by a
consular officer during the temporary absence from a country of the
diplomatic representative. More than forty consular officers now
have the specific authority required by the regulations."
Hunt's American Passport (1898), 85-88.
As is hereafter shown in this cliapter, consuls were authorized to counter-
sign or vise passiwrts during the Civil War; and by instrurtion No.
421, Feb. 12, 18().5, the consul at Liverpool was authorized to issue
passports. (Mr. Hunter, Act. Sec. of State, to Mr. Adams, min. to
England, No. Ii08, INIay 10, 180.'., MS. Inst. Gr. Br. XX. 200.)
As to the issuance of passports by consuls in China, see infra, § 5.31.
For early forms of passports issued by ministers and consuls, see Hunt's
Am. I'assport, 82-85.
In March, 1894, a passport was issued by the United States legation
in Berlin to a citizen of the United States temporarily residing in
Luxemburg, on an application made through the American vice-
commericial agent, the only American consular officer there. The
legation, in reporting its action, drew attention to the fact that
Luxemburg was not a part of the German Empire, as well as to the
fact that there was no United States official in Luxemburg who,
under the regulations, was competent to issue a passport. The
Department of State replied that no question of territorial juris-
diction w as necessarily involved in the case, and that, where there
was no United States representative competent to issue a passport in
a small state, the nearest embassy or legation might be applied to;
thus, an application from Monaco might be made to Paris or to
Rome, or from Andorra to Madrid or Paris. It was pointed out,
however, that the connnercial agent at Luxemburg had authority to
issue a passport, since the statutes provide for the issuance of pass-
ports in foreign countries by consular officers, and commercial agents
are, by section 1674 of the Revised Statutes, declared to be full
consular officers.
Mr. Uhl, Acting Sec. of State, to Mr. Runyon, ambassador at Berlin,
April 3, 1894, For. Rel. 1894, 244, 245.
It seems to have been from the beginning the recognized rule of the
Department of State to decline to issue passports to persons abroad.
Thus, in 1810, an application signed by Judge Tucker, of the court
of appeals of Virginia, for a passport for a Mr. Carter, was sent
to the American minister in Paris, with a letter reading as follows:
"As it is contrary, however, to usage to send passports from this
§495.] TO WHOM ISSUED. 869
Department to gentlemen who are abroad, I take the liberty of
forwarding this paper to yon and of requesting that you will furnish
Mr, Carter with every document necessary to prove his citizenship.
And in addition to these, perhaps, it may be well to put him in pos-
session of this letter, for his friends, who are of the highest respecta-
bility in this country, are extremely anxious to guard him against
every risk of detention on his return to them."
Mr. Smith. Sec. of State, to Gen. Aniistrong, .liUi. 27, 1810, MS. Inst. U.
States Ministers, VII. 88.
"A person who is entitled to receive a passport if temporarily
abroad should apply to the diplomatic representative of the United
States in the country where he hai)pens to be; or, in the absence of 'i
diplomatic representative, to the consul-general of the United States;
or, in the absence of both, to the consul of the United States."
Rules Governing the Granting and Issuing of l'assi)orts in tlie I'nited
States, Sept. 12, ISK).*?.
The rule above quoted is " of long standing." (Mr. Ilill, Assist. Sec. of
State, to Mr. Clarke, Nov. 4, 1898, For. Kel. 18!)! ». 88.)
See, also, Mr. Olney, Sec. of State, to Mr. Vest. Jan. 4, ISitf,. 207 MS.
Doni. Let. 21.
The statements necessary to obtain a passport may l)e made Ijcforc the
nearest American consular otHcer. (Rules, Sept. 12. IDO.'i. )
See, in this relation, Mr. Cadwalader, Assist. Sec. of State, to r. S. consuls,
circular No. 1. March 1, 187."), MS. Circulars, II. :V2.
III. TO WHOM /,S',S7 /•;/).
1. ISSUANCK FORBU)DKN TO ANY HUT CITIZENS.
§ 495'.
As the passport issued by the United States is primarily a certifi-
cate of citizenship, it has been regularly granted, except from 18();i
to 1866, only to citizens. But, as to the inhabitants of the " posses-
sions " of the United States, see infra, >J 49(').
" In order . . . that you may be furnished with passports for
Mrs. Susannah Smith (your mother-in-law), your wife, and two
children, it will be necessary that you send us proof of your owu and
of the citizenship of the first-mentioned lady."
Mr. Daniel Rrent, acting chief clerlv. to Mr. T.atonr. Aug. 14. 18(t4. 14 MS.
Dom. Let. :*>.">:?.
"The proof of citizenship which accompanied that | passjjort | application
is not deemed satisfactory." (Mr. Hrent to Mr. Coo|)er, Feb. 2;!, 18.'52,
25 MS. Dom. Let. 29.)
870 PASSPORTS. [§ 405.
A " record or list "' slioukl 1k' " kept of all those [passports] which
you may dclivor, coutiiinin^ the luiiiic and vouclicr of American citi-
zenship of the i)ersons to wliom they are given."
Mr. Adams, Sec. of State, to Mr. Nelson, luln. to Spain. No. 2, April 2S,
182;?. MS. Inst. r. States Ministers. IX. 17.'..
" Satisfactory «'vi<lcnce of citizensliip is necessary iK'fore h" can l»e fur-
nished with a itassport." (Mr. Dicliins, Act. Sec. of State, to Mr.
Williams, Aug. (J, 18:{(5. 28 MS. Dom. Let. ;«)7.)
" Passports are only granted to citizens of the United States."
Mr. Forsyth, Sec. of State, to Mr. McKennan, M. c;., Feb. 7, 18:^7, 2U MS.
Dom. I^t. 7.
"Applicants for passports are required to furnish this Department
with proof of citizenship."
Mr. Webster, Sec. of State, to Mr. Patterson. Fel>. 10, 184:?, .*?:? MS. Dom.
Let. 71.
"All applications for passports must be accompanied by evidence
of citizenship."
Mr. Buchanati. Sec. of State, to Mr. Wickens, Oct. 1(5, 184."), .S.5 MS. Dom.
Let. 201.
"A passport is in its terms a certificate of citizenshiji, and can not,
consequently, Avith propriety be given to any person not a citizen.
Mr. Davis, in his report to you in Lemmi's case, alludes to the pass-
ports which were given by Mr. Brown, at Home, to Italians desirous
of escaping after the downfall of the government of Mazzini and his
colleagues. Similar passports were given at Constantinople by the
American legation to the Hungarian refugees. In these last cases the
words ' citizen of the United States ' were erased from the passports,
but Mr. Davis is not quite sure that the consul at Rome was always
eqiuilly exact. If he was not, he certainly committed a great error,
although no doubt with good intentions. The value of the passport
to those entitled to it would soon sink if it were understood that in
cases of emergency it could be obtained by those who are not entitled
to it. Besides, [there is] the very grave objection that if a passport
containing the words ' citizen of the United States ' is intentionally
given to a person not a citizen, the signature and seal of the repre-
sentative of the Government are appended to what is known not to
be true.
" The objection is but partly met by the erasure of the words.
Police officers on the Continent seldom understand our language, and
they form an opinion of the character of the document by the emblems
on the vignette and the seal. If these cease to be reliable indications,
they will in the same degree cease to be of value to those who are
§495.] TO WHOM ISSUED. 87l
entitled to them, and passports Avill be subjected to a closer scrutiny,
with all the inconveniences of detention till their }x*ecise character is
ascertained."
Mr. Everett. Sec. of State, to Mr. Ingersoll, inin. to Engliiiul, Dee. 7, 1852,
MS. Inst. (ir. Brit. XVI. 178.
" The passport issued by this Department is a certificate that the
bearer thereof is a citizen of the United States, and is issued upon
proof, if the applicant Avas born abroad, as in the case of Mr. Kaiser,
that he has been duly admitted to citizenship.
" The paper enclosed as evidence of citizenship appears to be a
certificate from one of the judges of the court of common pleas of
South Carolina that Mr. Kaiser has sworn allegiance to that State,
in order that he may hold real estate, vote, &c., within the State; but
no evidence appears that he has been admitted a citizen of the United
States, and consequently he is not entitled to a passport certifying
him as such."
Mr. Marcy, Sec. of State, to Mr. Wallace, Nov. :\ 18.">.S. 42 MS. Doin. Let.
40.
By the act of Aug. 18, 1850, it Avas expressly forbidden to issue a
passport to any person not a citizen of the United States.
Rev. Stats. § 4070.
A person who has only made a declaration of nitention can not legally
obtain a passport. (Rules. Sept. 12. 1!K»;}.)
By the act of March 3, 1803, aliens Avho had made a declaration of
intention, and who were, under specified conditions, liable to military
duty, were permitted to obtain passports; but this i)rivilege was
repealed by the act of May 30, 18(50.
12 Stat. 7.31. 7r>4; 14 Stat. 54.
See infra, p. 1018 ; and Mr. Bayard, Sec. of State, to Mr. Stein. Aug. 28.
1888, 109 MS. Doni. Let. 503.
" Your dispatch of June 29, No. 3'2"2, has been received. If the
minister of Switzerland, residing at Paris, had been informed of all
the facts bearing on the question which he has raised. I cajuiot believe
that he would have thought it necessary to otl'er ()l)je('tions against the
President's proclamation concerning the liability of emigrants in the
United States to perform military service.
"The Federal Constitution authorizes Congress to adopt uniform
rules of naturalization, and Congress, heretofore, prescrilu'd the con-
ditions of five years' residence, a preliminary declaration of intention
872 . PASSPORTS. [§495.
to become a citizen, and ii subsequent oath of renunciation of the
native allegiance and acceptance of the new one.
" But, on the other hand, the Federal Constitution reco^izes a
citizenship of each State, and declares that the citizens of one State
shall enjoy the right of citizenship in every other State, and leaves it
to each State to prescribe the conditions of its own proper citizen-
ship. By the constitutions of several of the States, especially the new
ones, the preliminary declaration of intention, above mentioned,
entitles the maker of it to all the rights of citizenship in that State,
and they freely enjoy and exercise those rights. They enjoy ample
protection and exercise suffrage. It was with reference to this state
of facts that Congress passed the law which is recited in the Presi
dent's proclamation. And they passed another act, Avhich authorized
the Secretary of State to extend the protection of the Government
to all persons who, by any laws of the United States, are bound to
render military service. The two laws seem to this Government to
be reasonable and just, and they constitute a new, additional, and uni-
form law of Federal naturalization. But it Avas foreseen that some
emigrants, who had declared their intention, might complain of sur-
prise if they were immediately subjected to conscription. To guard
against this surj^rise the proclamation was issued, giving them ample
notice of the change of the law, with the alternative of removal from
the country if they should prefer removal to remaining here on the
footing on which Congress had brought them. Surely no foreigner
has a right to be naturalized and remain here, in a time of public
danger, and enjoy the protection of the Government, without submit-
ting to general requirements needful for his own security. The law
is constitutional, and the persons subjected to it are no longer for-
eigners,-but citizens of the United States. The law has been acqui-
esced in by other foreign powers, and I am sure that Switzerland
cannot be disposed to stand alone in her protest against it."
Mr. Seward, Sec. of State, to Mr. Dayton, July 20, 18().3, Dip. Cor. 1801^,
I. (584. See infra, § 548. "
It will be observed tbat tbe purport of this paper is tbat tbe persons in
question, by virtue of tbe legislation fited. were naturalized citizens
of tbe United States. See, bowever, supra, § 378.
" The only method in which this Government pledges its prorection
to those entitled thereto is by the issuing of a passport, and this is
expressly prohibited by law except to citizens native born or duly
naturalized."
Mr. Fisb, Se<'. of State, to Mr. Gonzales, Se])t. 7, 18(59, 82 MS. Dom.
Let. 4(5.
See also Mr. F. W. Seward, Assist. Sec. (tf State, to Mr. Clausseuius,
Dec. 11, 180.'5, 71 MS. Doui. Let. 287.
§495.] To Whom ISSUED. 873
The laws of the United States authorize the issue of passports to all
citizens thereof, without distinction, whether native born or natural-
ized.
Taft, At. Gen., 187(>, 15 Op. 114.
As the naturalization of Chinese prior to 1882 was unauthorized,
and since that time has been expressly forbidden, passports can not
be issued to them as naturalized citizens, even where courts have
assumed to admit them to citizenship and have granted them certifi-
cates of naturalization.
Mr. Wliarton, Assist. Sec. of State, to Mr. Marshall. April .W, 1S01, 181
MS. Dom. Let. 568; Mr. Foster, Sec. of State, to Mr. Holand, Feb.
10, 1893, 190 MS. Dom. Let. 284.
For further precedents, see supra, § 383.
As to Japanese, see supra, § 383 ; and Mr. Hay, Sec. of State, to Mr.
Choate, anib. to Cir. Br., No. 415, July 10, 1900, referring to a passport
issued by the embassy to a naturalized citizen of Japanese origin,
and, after citing In re Saito, G2 Fed. Kep. 126, saying: "I am not
aware that any other case involving the eligibility of Japanese to be
naturalized has come before the courts." (MS. Inst. Gr. Br. XXXIII.
438.)
Louis Vonkey applied to- the American legation at Athens for the
renewal of a passport which appeared to have been issued to him un-
advisedly by the legation at Constantinople. A Hungarian by birth,
he produced no evidence of his naturalization in the United States,
but showed that he had held a commission in the volunteer army,
" and," said Mr. Seward, " it may be assumed can show an honorable
discharge. These facts, however, do not constitute him a citizen,
but only dispense, on his application to be admitted as a citizen, with
the necessity of i)roving more than one year's residence. (12 Stat;-.
597, § 21.) The issuing of passports, as you are aware, is restricted
to those who are citizens duly admitted by a competent court or
nations [natives], and they can not be issued to those who are only
entitled to become citizens but have not had their title established
by judicial record."
Mr. Seward, Sec. of State, to Mr. Tuckerman. min. to Greece, Jan. 28,
18r>9, MS. Inst. Greeci^, I. 14.
Mr. Seward had in 18(54 refused to issue a i)assi)oiT to \'oiikoy (or
Vonoky). (Mr. Seward, Sec. of State, to Mr. Driggs, M. ('.. Fel). 26,
18r4, 63 MS. Dom. Let. 305.)
A soldier in the United States Army, a German by birth, who has
not been naturalized in the United States, " is not entitled to a pass-
port and can only return to his native country at the risk of being
subjected to service in the German army on his arrival there."
Mr. Bayard. Sec. of State, to Mr. Endicott, Sec. of War, Feb. 23, 1887,
163 MS. Dom. Let. 215.
874 PASSPORTS. [§ 490).
" Protections to seamen are not included under tlie denomination of
*
passports, nor are they ever granted l)V public ministers. Seamen
may, nevertheless, like other citizens, occasionally want the passport
of the minister and are equally entitled to it."
Mr. Adams, Sec. of State, to Mr. Nelson, mln. to Spain, No. 2, xVpril 28,
1823, MS. Inst. CJ. States Ministers, IX. 175.
" It appears from Mr. Wolff's affidavit that he was born in Silesia,
July 9, 1859, and came to this country in 1878; that he served from
1884 to 1892 on board the United States coasting ships, and during
the late war with Spain on board the United States ship San Fran-
cisco, as shown by his discharge paper. He also exhibited a declara-
tion of intention to become a citizen of the United States.
" From the statement submitted it would appear a passport should
not have been issued in this case. Service as a seaman or in the naval
service of the United States does not in itself confer citizenship. It
has never been held, by the Department that one who has been an
American seaman and has made his declaration of intention to
become an American citizen is entitled to receive a citizen's passport
until he has complied with the requirements of section 2174 of the
Eevised Statutes and received naturalization papers from a court
having competent jurisdiction. Honorable discharge from an eidist-
ment in the Navy after five years' service is also a cause for naturali-
zation by the courts under the provisions of the act approved July 26,
1894 (vol. 28, United States Statutes at Large, p. 124), but the dis-
charge by itself confers no rights of citizenship."
■ Mr. Hay, Sec. of State, to Mr. White, aiiib. to Germany, Jan. 27, 1899,
For Rel. 1899, 29G.
Passports can not be issued, as a " favor," to persons not legally
entitled to them.
Mr. Hay. Sec. of State, to Mr. Hardy, min. to Switz., No. 11, June 7, 1901,
MS. Inst. Switz. III. 20.3.
2. Inhabitants of Annexed, or Occupied, Territory.
§ 496.
Pending the occupation of Cuba by the United States, and pending
legislation by Congress to determine the civil rights and political
status of the native inhabitants of the territory ceded to the United
States by the treaty of peace with Spain of Dec. 10, 1898, the diplo-
matic and consular officers of the United States, while authorized to
register as such, in their offices, native inhabitants of Cuba and Porto
Rico temporarily sojourning abroad, were instructed that they were
not authorized to issue to persons so registered any certificate or other
§496.] TO WHOM ISSUED. 875
paper having constructively the effect of a passport ; but that, if the
applicant possessed evidence of his native status, such as a personal
certificate of matriculation, ccmmonly called " cedula de vecindad,"'
or other proof of recent date, they might endorse upon it, " Xoted in
the legation " (or consulate, as the case might be) " of the United
States at ," attaching the signature and date and affixing the
official seal.
Mr. Hay,' Sec. of State, to the diplomatic and consular officers of the
United States, circular. May 2. 1899, For. Hel. 19()0, 894. 895.
Mr. Storer. T'nited States minister at Madrid. Oct. 22. 15KX). stated that
an alcalde in Porto Rico had issued a joint passport to a husband,
wife, and minor children as citizens of Porto Rico, TJnited States of
America, and that the husband, who was about to visit Cuba, would
be obliged to carry the passport with him. He asked what sort of
an official certificate should be given by the. United States consul-
general at Barcelona to the family, who would remain there.
Mr. Storer was instructed that the consid-general might certify a copy of
the Porto Rican paper, and if necessary vise it. (Mr. Hay, Sec. of
State, to Mr. Storer, min. to Spain, tel., Oct. 24, 1900. For. Rel. 1900,
892.)
Mr. Storer subsequently stated that the civil provincial governors in Cuba
and the municipal authorities in Porto Rico issued in lieu of cedulas
papers of different forms and wording, purporting to be passports,
which were presented for registration and vise. He inquired as to
what officers were authorized to issue passports and in what form.
Mr. Hay replied : "All passports or cedulas presented by citizens of Porto
Rico and Cuba, and all passports or cedulas presented by natives of
the Philippines, when issued or countersigned by the military authori-
ties of the United States in these islands, shall l)e registered and
viseed." (Mr. Ha.v, Sec. of State, to Mr. Storer, min. to Spain, tel.,
Nov. G, 1900, For. Rel. 1900, 893.)
Mr. Storer, in his No. 36:}, Dec. 20, 1900 (For. Rel. 1901. 4r)7), acknowl-
edged the receipt of Department's No. 244, of Nov. 9. 1900 (For. Rel.
1900, 898). and discussed the circular of May 2. 1899. He stated that
the theory of the Department ai)peared to be that the " cedula de
vecindad." presented b.v natives of Cuba, Porto Rico, and the Phil-
ippines, would be issued by the authorities in those islands. This
was formerly the case, but had ceased to be so, as the " cedula de
vecindad " was a paper issued under Spanish law only to resident
citizens or natives, at home or in the colonies, and was valid only for
a year, at the expiration of which it was re<iuired to be reninved.
under heavy penalties for the failure to renew it. Conse<iuently.
after the lai)se of several months, persons, described as natives of
Cuba or Porto Rico. I)egan to api)ly for the registration of cedulas
issued by numicipal authorities in Spain. He at first declined to
recognize these, but afterwards, on urgent representations that it was
necessjiry to enable the at»plicant to secure passage on a Si)anish
steamer to Cuba or Porto Rico, consented to vise them, on the pro-
duction of some additional evidence, written or oral, of the !ipi)li-
cant's real nativity. In reality the applicant, unless he retained his
Spanish nationality, was not required nor entitled by Spanish law
to obtain the cetlula, no such certificate being issued by Spanish
876 PASSPORTS. [§ 40r>.
oftioials to jilieiis; and tlie ctHlulas in question were issued under the
fircnnistances l>y the Spanisli municipal olflcials without liuiuiry
or evidence of identiHcation. The Spanish authorities, hesides, rejire-
hended th«' viscinjr ot' their ollicial <'ertificates as a sort of dis-
courtesy. Mr. Storer in(|uir(>d whether the circular was intendwl to
cover the exlstinj; stale of affairs, as would sccni to he indicate<l by
Department's No. 244.
Mr. Storer also stated that, since the occupation of Tuba and Porto Rico
by the United States, no cedulas appeared to have been issue<l there,
hut instead certain i)ai)ers by alcaldes in Porto Uico and by provincial
governors in Cuba, varying in form and in contents, those from
Porto Kico c<mtaining no i>ersonal description or recital of citizen-
ship, the holder being described merely as " vecino " (resident),
while those from Cuba gave a personal description, sometimes witli
the statement tliyt the bearer was of " nacionalidad Cuhana." or tliat
he was a native of a certain cit.y. Again, there was a certilieate
sipied by the secretary of state and interior of Cuba, to the effect
that the bearer, born in Spain, had not exercised the option of
Spanish nationality under Art. IX. of the treat.v of peace, " which
fact constitutes the tacit renunciation of his nationality and the pro-
tection of the flag of Spain."
Mr. Stoi'er aslced for further instructions.
Mr. Hay, in his No. 283, of January 16, 1901, replied that, in view of
the transitory conditions in Cuba, the uncertainties as to the actual
and legislative future of the Philippines," and the pendency of the
Porto Ricau cases before the Supreme Court, the time was not
thought to be ripe for formulating a general and permanent plan ;
that his course in authenticating the cedulas and passports, when
it could not he avoided, was approved, and that the telegram of
Nov. G. 1900, was meant to authorize the vise of ce<lulas and pass-
]X)rts when presented bj' Cubans and Porto Ricans. and l)y Fili-
l)inos when issued or countersigned l)y the military autliorities in the
Philippines. (For. Rel. 1901. 402.)
The consuls wei*e autln)rized to certify only as to Cubans and I'orto
Ricans who were bona tide residents of those islands temporarily
sojourning abroad. (For. Rel. 1901, 480-482.)
By the act of April 12, 1900, providing a civil orovernment for
Porto Rico, the inhabitants of Porto Rico continuing to reside therein,
who were Spanish subjects residing in Porto Rico at the date of the
ratification of the treaty of peace, were declared to be " citizens of
Porto Rico," and as such " entitled to the protection of the United
States."
" Passports are issued by the Department to persons entitled
thereto, declaring that they are citizens of Porto Rico, and as such
entitled to the protection of the United States."
Mr. Adee, Act. Sec. of State, to Mr. Vilas, Aug. SO, 19(X), 247 MS. Dom.
Let. 448.
As to the form of application for such a passport, see Mr. May, Sec. of
State, to Mr. Schomburg, May 17, 19(M), 245 MS. Dom. Let. 155.
§496,] TO WHOM ISSUED. 877
The Department of State deems it wise to decline to issue passports to
Porto Ricans as citizens of tlie United States before the Supreme
Court of the United States shall have rendered a decision defining
■ their status. (Mr. Hill, Act. Sec. of State, to Mr. Lenderink, charge
in Chile, April 20, 10()1, For. Kel. IWl, 32.)
See, further, as to the status of Porto Ilicans, supra, § 379.
P^or the act of July 1. 1902, declaring the people of the I'hilippines, etc,
to be citizens of the Philippine Islands, see supra, § 379.
In respect of passports, natives of Guam were to be treated in the
same manner as inhabitants of Porto Kico or the Philippines.
Mr. Hay, Sec. of State, to Mr. Storer, min. to Spain, Dec. 24, 1901, For.
Rel. 1901,485.
" Referring to your No. 11G9 of January 25 hist, touching the
application for a passport made by Bernard Ehlers, a native of Hono-
lulu, I inclo.se herewith coj)y of a dispatch from the special agent of
the United States at Honolulu transmitting the reply of the Ha-
waiian minister for foreign affairs to the inquiry made by thi.s
Department as to whether the Hawaiian government considered
Ehlers a bona fide citizen of those islands.
"As Mr. Ehlers's Hawaiian citizenship appears to be treated by
Mr. Mott-Smith as an established fact, you may issue to Mr. Ehlers a
document declaring that the bearer, Bernard Ehlers, is a citizen of
the Hawaiian Islands, and as such is entitled to the protection of the
United States.
"As in the case of Porto Ricans (Circular of May 2, 1899), United
States passports can not be issued to natives of the Hawaiian Islands
until their civil and political status has been deteruiined by Congress."
Mr. Hay, Sec. of State, to Mr. White, anih. at Hcrlin. April 2. 19<X). For.
Rel. 1900, 521.
But, see siipra, § 379, where it is shown that citizens of Hawaii were
afterward decfiired to be citizens of the T'nited States.
Section 40TG of the Revised Statutes of the United States, based on
the act of August 18, 18r)(). i)rovided that no passport should be
"granted or issued to or verified for any other j)ers()ns than citizens
of the United States." . Ah we have seen, the inhabitants of Porto
Rico were, by the act of April 12, 1900, supra, declared to be '* citizens
of Porto Rico; " while the peojile of the l*hilij)i)ines were, by the act
of July 1, 1902, declared to be " citizens of the Philipi)iiie Islands; "
and passports were issued to them accordingly. In order to cover,
generally, the case of the inhabitants of the insular possessions of the
ITnited States, who, while they had not been declared to be citizens,
were declared to be entitled to the protection, of the United States,
Congress, by the act of June 14, 1903, amended >; 407() so as to read :
" No passport shall be granted or issued to or verified for any other
878 PASSPORTS. [§497.
persons than those owing allegiance, whether citizens or not, to the
United States."
Act of June 14, 1902, 32 StHt., part 1, p. .*Wt>.
" 2. To whom issued. — The law forbids the granting of a passport
to any person who is not a citizen of the United States, or who is not
a loyal resident of an insular possession of the United States."
" 9. A resident of an insular possession of the United States who
owes allegiance to the United States. — In addition to the statements
required by rule 3 [prescribing the contents of applications for pass-
ports], he must state that he owes allegiance to the United States and
that he does not acknowledge allegiance to any other government;
and must submit affidavits from at least two credible witnesses having
good means of knowledge in substantiation of his statements of birth,
residence, and loyalty."
Rules Goveriiiiij? the Granting and Issuing of Passports in the United
States, September 12, 1903,
3. Indians.
§ 497.
"I have to acknowledge the receipt of your Xo. 506, of the 11th
ultimo, reporting the application of Humper Nespar, or Wadded
Moccasin, a Sioux Indian, for a jiassportr
" In reply I have to say that Indians are not citizens of the United
States by reason of birth within its limits. Neither arc our general
naturalization laws applicable to them, but various Indian tribes have
been naturalized by special acts of Congress. Section 0 of the act of
February 8, 1887 (24 Stat. 388), provides that 'every Indian born
within the territorial limits of the United States to whom allotments
shall have been made U4ider the provisions of this act, or under any
law or treaty, and erery Indian horn within the territorial limits of
the United States who has rohintarihj taken up within said limits
his residence separ^ate and apart from any tribe of Indians therein,
and has adopted the habits of civilized life, is hereby declared to be a
citizen of the United States."*
" Section 43 of the act of May 2, 1890 (20 Stat. 99), provides that
' any member of any Indian tribe or nation residing in the Indian
Territory may apply to the United States court therein to become a
citizen of the United States, and such coiu't shall have jurisdiction
thereof and shall hear and determine such aj^plication, as provided in
the statutes of the United States.'
" Unless Humper Nespar was naturalized in one of the above
modes, he is not entitled to a passport as a gitizen of the United
States.
§498.] TO WHOM ISSUED. 879
"A copy of your despatch will be sent to the Interior Department
and an effort made to determine definitely what his status is, as some
Sioux tribes have been naturalized by special acts. Even if he has
not acquired citizenship, he is a ward of the Government and entitled
to the consideration and assistance of our diplomatic and consular
officers. Your action in the case is therefore approved.
" In this connection reference to the case of ' Hampa,' reported in
despatch No. 453, of May 7, 1896, from the consul at Odessa, is perti-
nent. Hampa, an American Indian, a member of a cowboy, company
which performed at Odessa, was discharged on account of drunken-
ness. The consul aided him, and upon the police requiring of Hampa
a passport or document from the consulate, certifying to his identity,
the consul issued the following :
" To whom it may concern :
" The bearer of this document is a North American Indian, whose name is
Hampa. This Indian is a ward of tlie United States and is entitled to the pro-
tection of its consular and other officials. He is not, however, entitled to a
passr)ort, as he is not a citizen of the United States. This consulate has the
honor to request the Russian authorities to grant Hampa all necessary protec-
tion during his staj- in Russia and grant him permission to depart when he
requires it.
" , Consul.
"As the document expressly .stated that Hampa was not a citizen
of the United States and not entitled to a pass})ort, its issuance could
not be regarded as a violation of 11. S. 4078. That section prohibits
the granting by consular officers of passports to or for any person not
a citizen of the United States. The same section also provides that
no person not lawfully authorized so to do shall issue any passport or
other instrument in the nature of a passport to or for any citizen of
the United States, or to or for any person claiming to be or designated
as such in such passjjort.
" The Department, at least tacitly, approved the consul's action in
this case, and sees no valid objection to your issuing a similar docu-
ment to Humper Nespar in the event of his failure to show that he is
actually a citizen."'
Mr. Sherman. iSec. of State, to Mr. Breckinridge, aiiih. to Russia, No. .'591.
Ai»ril :\, 1897, MS. Inst. Russia. XVII. .")S.
This instruction is also printed in Hunt's Am. Passport, 14G.
4. Persons of C'ou)r.
§ 498.
Since, by virtue of the Fourteenth Amendment and the naturaliza-
tion laws, persons of African descent, if born or naturalized in the
United States, are citizens thereof, no question as to their right to
880 PASSPORTS. [§498.
receive passports any longer exist. Prior to the Civil War, however,
passports in the usual form were not issued to them, though in some
cases papers in the nature of passports, which were indiscriminately
referred to as " passports " and " protections," were granted to free
persons of color. These papers stated that tlie individuals to whom
they were given were " free persons of color, born in the United
States," and invoked for them all lawful aid and protection.
The Department of State did not consider these papers as being,
in the proper legal sense, " passports."
" Your letter of the 4th instant, .enclosing an extract from the
' Free Soil Courier,' relative to my not granting a passport to Henry
Ilambledon, a colored man, was this day received. In reply to your
first enquiry, I am sure that there is no law requiring or authorizing
me to grant a passport to a colored person, and applications for such
a passport as was asked in this case have always been refused by
every other Secretary of State. Enclosed is the certificate of the
passport clerk of this Dei)artment wlio occupied that place under my
predecessor. In answer to your second question, I reply that I am
not a slaveholder, though I do not perceive of what importance it
can be to know it."
Mr. Clayton, Sec. of State, to Mr. D. W. C. Clark, Burinigton, Vt, Aug. 8,
1849, 37 MS. Doui. Let. 269.
For certain forms used, see Hunt's Am. Passport, 15-18.
Mr. Gadsden, minister of the United States in Mexico, issued,
June 28, 1854, a circular to the American consuls in that country for-
bidding them to interfere in future in behalf of persons of African
descent, born in the United States. Mr. Marcy, however, declined to
accept this view, and gave instructions that, while a consul might not
certify that such persons were citizens of the United States, he might
certify that they w-ere born in the United States and were free, and
that the Government would regard it as its duty to protect them, if
wronged by a foreign government, when within its jurisdiction for a
legal and proper purpose.
Mr. Marcy, Sec. of State, to U. S. consul at Matamoras, Jan. 18, 1855,
Moore, Int. Arbitrations, III. 2462.
By the Constitution, as construed by high authorities, free per-
sons of color are not citizens of the United States and therefore can-
not receive " passports," or claim when bej^ond the jurisdiction of
the United States " the full rights of citizens; " but " the Secretary
directs me to say that, though the Department could not certify that
such persons are citizens of the United States, yet, if satisfied of the
truth of the facts, it would give a certificate that they were born in
the United States, are free, and that the Government thereof would
§499.] TO WHOM ISSUED. ' 881
regard it to be its duty to protect them if wronged by a foreign gov-
ernment, while within its jurisdiction for a legal and proper purpose."
Mr. Thomas, Assist. Sec. of State, to Mr. Rice, Nov. 4, 1856, 46 MS. Dom.
Let. 99.
This letter related to a request for passports for eleven colored persons,
and cited, on the construction of the Constitution, opinions of
Attorney-General Wirt, 1821, and " the present Attorney-General ; "
2 Kent's Comni., 277, referring to opinions of Chief Justice Dagget,
of Connecticut, in 1833, and the supreme court of Tennessee in Clai-
borne's case.
5. Persons Included in Passpobt.
§ 499.
" When husband and wife and minor children expect to travel
together, a single passport for the whole will suffice. For any other
person in the party a separate passport will be required."
Mr. Seward, Sec. of State, Circular, No. 24, Sept. 25, 1862, MS. Circulars,
I. 211.
" According to the rules in force in general in the Department re-
specting the issue of passports, separate passports are issued to a
father and his two children on a request therefor, or where reasonable
cause is shown. In fact, the practice of including several members
of the same family in one passport is to save trouble and expense to
the parties themselves.
" Where good cause is shown therefor, such as the intended resi-
dence of one of a family in a foreign land, or a necessity for the use
of a passport for a proper ])urp()se, it would seem that the passports
might well be issued on making proper application therefor and
complying with the usual regulations."
Mr. Fish. Sec. of State, to Mr. Davis, min. to Germany, Nov. 4. 1876,
MS. Inst. (Jerm.. XVI. 2,52.
" AVhen the applicant is accompanied by his wife, minor children,
or servant who would be entitled to receive a passport, it will be suffi-
cient to state tlie fact, giving the respective ages of the children antl
^he allegiance of the servant, when one })assport will suffice for all.
For any other person in the party a separate passport will be required.
A woman's passport may include her minor children and servant
under the above-named conditions."
Rules Governing the (Jranting and Issuing of Passports in the Fnited
States. Sei)t. 12, 1903.
The word " servant " does not include a governess, tutor. pui>il. conipMuion.
or person holding like relations to the ai)|)licant for a [tassport.
(Ibid.) See, also. Hunt's Am. Passport, 91-92.
H. Doc. 551— vol 3 5G
882 PASSPORTS. [§''>00.
" Tho servants mentioned in the ajJiilication are not included [in
the passport], as protections are only granted to citizens of the
United States."
Mr. CrallCs Act. Soo. of State, to Mr. McLaiio, Oct. 2(\ 1844, :?."> MS.
Doni. Let. 9.
" A servant . . . can not be invested, by means of inclusion
in a passjjort. with the right to protection which that document
certifies the employer to possess as a citizen."
Mr. Klaino. Sec. of State, to Mr. Ilirscli. miii. to Turkey, No. 97, June 18,
1890, MS. Inst. Turkey, V. 1.34.
"This (iovernment does not issue certificates of residence or ^ pro-
tection papers ' other than pa.ssports, which can only be granted to
citizens. Adoption of an alien child by a citizen of the United
States does not confer American citizenship upon the child."
Mr. Ohiey, Sec. of State, to Mr. .AlcCandless. Feb. 13, 1S9G, 207 MS. Doui.
Let. 081.
See, to the same effect, supra, § 415.
G. WOMKN.
§ 500.
In the issuance of passports, '' the sex of the person is immaterial."
Mr. Blaine, Sec. of State, to Mr. Ilirscli, niin. to Turkey, No. 97, .Tune 18,
1890, MS. Inst. Turkey, V. 134.
While a wife may, as is shown in the previous section, be, for convenience,
included in her husband's passport, a woman, whether unmarried or
married, or a widow, may, if a citizen of the United States, obtain
a passport on her own account.
Where a woman, an alien by birth, but the Avidow of a citizen of
the United States, applied, while residing in Switzerland, for a pass-
port, it Avas held that, while she might, as a matter of strict law,
remain a citizen, yet, as a citizen had no absolute right to a passport,
it would be juciicious to decline to grant her application unless she
should give evidence of an intention to resume her residence in the
United States.
Mr. Fish, Sec. of State, to Mr. Rublee, No. 210. April 11, 1870, MS. Inst.
Switzerland, I. 382.
§ 501,] TO WHOM ISSUED. 883
7. MiNOB Children,
§ 501,
Passports are issued to minors who are citizens of the United
States.
In the case of a minor, however, there may arise a question of
douhle allegiance." In order to meet this contingency, the Govern-
ment of the United States, from 1870 to 1885, used a qualified
form of passport in the case of children born abroad of American
fathers. This form, as elsewhere ap])ears, was discontinued, not
because of any doubt as to the existence and oix'ration of the prin-
ciple of double allegiance, but because it was supposed that it might
stand in the Avay of the assertion by the individual of the rights,
if any, Avhich might be derived from " domicil."'' The form was
not understood to deny or impair any right of American citizenship.
It merely referred to the fact that a conflicting allegiance might
•exist. The form was merely precautionary, or suggestive, since a
double allegiance does not always arise under the conditions to which
it referred. Some countries do not claim, as the United States does,
or, if they do so, claim only conditionally, the allegiance of all per-
sons born on their soil and subject to their jurisdiction, even though
born of alien parents. In order to determine the question, in a
l^articular case, the municipal laws of the countries concerned must
be known. It is erroneous either to speak or to think of a person
as being a citizen, either jure soli or pire saufptiiiis, '" by inter-
national law," International law recognizes both sources; it creates
neither. If the nnmicipal law of a particular country does not treat
as citizens persons born on the soil, of alien parents, international law
does not stej) in and thrust upon such persons the citizenship of the
country. If, on the other hand, the municipal law does not impute
citizenship to the foreign-born children of citizens, international law
does not impute it. But it recognizes as readily the one rule as the
other, as well as the fact that they may perchance both operate at the
same time iii)on the same })ei"son.
Where application was made to the Departuient of State for ])ass-
ports for five i)ersons residing in the island of Cura(;oa, four of whom
were born in that island and one in tlie island of Saint Thomas, and
all of whom were children of native citizens of the United States. l)ut
it did not appear that any of the applicants had ever resided or
"For the Inw in relation to ilonl)le alleuiaiu-e. see suiira. §S 42<>— 1:>0.
» Supra, p. 840.
884 ' PASSPORTS. [§r)01.
inttMidod to reside in the United States, it was advised that they
were not entitled to ])assports.
Hoar, At. Gen., 1800, 13 Op.' 89.
This opinion, and tlie opinion of .\ttorne.v-fJoneral Pierrepont, in IS?.'*, 15
Op. !.">. are cited witli aiti)rovaI l>.v Mr. lilaine, wlio stated that they
had " since l)een nniforndy followed," in his instruction No. .'}8. Dec.
14, 1881), to Mr. Phelps, niin. to Germany, MS. Inst. Germany,
XVIII. 277.
" Section 4076 of the Revised Statutes expressly limits the grant or
issue of passports to citizens of the United States, who must be held
to be actual citizens only, so that there is no authority for the issue of
passports certifying a qualified or restricted citizenship."
Mr. Bayard, Sec. of State, to Mr. McLane, niin. to France, May 7. 1888,
For. Ilel. 1888, I. r)."i4, in relation to the case of Henry Aschc, to whom
a qualified passport was issued by the legation at Paris. The lega-
tion was instructed that it was desirable that the passport in question
should, if it were practicable, be " recalled and cancelled."
" Should not passports be refused to the children of naturalized
citizens born abroad, who have never been in the United States, and
whose fathers are or were permanently residing abroad ? . . .
" The answer is in the affirmative, with the qualification that the
exclusion does not apply to cases in which the applicant, when arriv-
ing at majority, seeks the passport in order to return to the United
States with the avowed intention of taking upon himself the duties
and responsibilities of American citizenship. If, however, clear
proof exists of the father's renunciation of American citizenship
prior to the son's birth, then a passport should not be granted to the
son."
Mr. Bayard, Sec. of State, to Mr. Vignaud, charge at Paris, .lune 13, 1888,
For. Rel. 1888, I. 542.
The Department of State, after mentioning the objections to issu-
ing a passport to a person who had resided continuously for thirty
years in France, the country of his origin, said : "As to the minor chil-
dren of such a person born abroad, who were never in the United States,
and not being hui juris can not elect their domicil or citizenship, the
objection to issuing passports to them is even stronger; and during
minority they can claim nothing more at least than their parent.
The minor does not need a passport to enable him to come to the
United States, to which country he can resort whenever he chooses."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, July 20, 1888,
For. Rel. 1888, I. 551.
L. was born in the United States in lS('»i>, his father being a natural-
ized citizen of (Jerman origin. In 1874 the father went to British
§501.] TO. WHOM ISSUED. 885
Columbia, where he became a naturalized British subject. L. accom-
panied his father to British Columbia, and was still residing there,
when in 1881) he applied to the consul of the United States at
Victoria for a passport as a citizen of the United States. Held, That,
when the father became a British subject, L., being then a minor, was
fiffected by the change of allegiance, and that as he had, since attain-
ing his majority, elected to remain within the jurisdiction of Great
Britain, he was not entitled to a passport as a citizen of the United
States. •
Mr. Wharton, Assist. Sec. of State, to Mr. Wheeler, May 8, 1889, 172, MS.
Dom. Let. 11.
" It has been suggested to the Department that unless this Govern-
ment recognizes the American citizenship of Arthur Altschul he may
be liable to the claims of the German Government, within whose jur-
isdiction he was born and still lives. It has, however, repeatedly
been held, upon the maturest consideration of the law, that the pro-
tection of this Government can not be employed for the purpose of
enabling a person to escape his obligations to a government to which
he owes valid allegiance, and that, in the case of double allegiance, a
passport should not be granted by one of the Governments to which
allegiance is due in order that the applicant may, while continuing to
reside within the jurisdiction of the other, be exempt from its claims.
This principle was laid down in 1869 in the case of certain persons
residing in Curasao (18 Op. 89, Hoar, At. Gen.) and again in 1875.
in the case of one Steinkauler, in Prussia (15 Op. 15, Pierrepont, At.
Gen.), and has since been universally followed."
Mr. Bhiiiie, Sec. of State, to Mr. Phelps, inin. to fJerniany. No. ?>^. Dee. 14,
1889, MS. Inst. Germany. XVIII. 277. In the text of this instruction,
the opinion, in 15 Op. 1.5, is descrihed as that of Attorney-CJeneral
" Williams," hut I have siven it as Attorney-General I'ierrejjonfs
opinion, which it actually was.
John Maurice Hubbard, a minor, who was soon to come of age.
was born in France of American parents. '' By the French law of
citizenship a i)erson born in_ France of alien parents and domiciled
in France at the time of reaching uuijority is avowed one year after
reaching majority to elect to retain the citizenship of his i)arents.
In default of so doing, at the expiration of that period and if retain-
ing French domicil, he is to be deemed a citizen of France. It is
therefore evident that the acquirement of French citizenship is
optional, not obligatory, and that the interested party, on bt'coming
sui juris, is, in any event, as free to choose his citizenshii) as his
domicile.
" By the statutes of the United States Mr. Hul)bard is by birth an
American citizen. His right, however, to claim the |»rotection of
886 PASSPORTS. . [§ 501.
this Government abroad may be atlected by tlie lawful claims of the
Government within whose jurisdiction he was boi-n. It depends also
upon those considerations which prevail in tiie cas(^ of any citizen of
the United States who takes up his residence in a foreign country.
If he desires a passport, he should i)rove to the legation, as is recjui-
site in such cases, that he has a fixed purpose to come to this country
within a reasonable time with the intent of making it his permanent
home,
"■ John Maurice Hubbard's intentions in regard to his future
domicil are not stated; but, from the circumstance of his resorting
to the procedure prescribed by French law to legalize his status as an
alien continuing his residence in France, it may be inferred that Mr.
Hubbard intends to keep up his present domicil beyond the year
following his coming of age. If this be so, the interest which this
Government would have in assuring his claim to American citizen-
shi]) for the purpose of indefinite residence abroad is not apjjarent.
Both international and statutory law in this relation aim to insure
to the Government of which the party claims to be a citizen the right
and free oi)portunity to exact of him the fulfillment of the duties of
citizenship, as much as to secure to the party the enjoyment of the
rights and privileges of citizenship. The relation to be established
is reciprocal, involving the allegiance of the person to the state
which protects him, as well as the obligation of the state to protect
him while he shall bear true faith and allegiance to it.
" It rests, therefore, with j\Ir. Hubbard to determine his status on
becoming st/i juris. If he in good faith purposes to take up his
abode in the United States and here perform the duties and enjoy
the benefits of citizenship, he has clearly the right to do so and to be
aided thei-ein by his Government. But, if it be his purpose to remain
indefinitely abroad, it is not incumbent upon this Government to
assist him to evade the obligations of citizenship here and of domicil
in France.
" It appears that the consul at Havre has supplied Mr. Hubbard
with documentary evidence to justify his claim to be a citizen of the
United States, and that such evidence may suffice to determine his
status as an alien under the French law you quote. It is desirable
that the nature of the consul's intervention should be ascertained,
and Mr. Williams will be called upon to report fully what he has
done in the premises.
" Should Mr. Hubbard resort again to the legation after attaining
legal age, you will satisfy yourself as to his intentions respecting his
future domicil, and, should it ai)pear that he i)urposes in good faith
to perform the duties of citizenship, a passport may be issued to him.
The Department sanctions no other evidence of citizenship than this.
But if it shall appear that Mr. Hubbard has no fixed intent to dwell
§ 501.] TO WHOM ISSUED. 887
in the United States, you will treat his case precisely as any other
where the conduct of the applicant' suggests a voluntary al)andon-
ment of the rights of protection claimed by him, and will withhold a
passport.-'
Mr. Blaine, Sec. of State, to Mr. Reid, min. to France, No. 35.3, Oct. 30,
1891, For. Uel. 181)1, 493.
See, also, Mr. Reid to Mr. Blaine, No. 428, Oct. 8, 1891, id. 491.
" The Department assumes that the statement of Mr. Thompson
that he is trying to get a position for young Hubbard in the United
States, is a bona fide evidence of intention to come and make a home
in this country ; and a passport, good for one year only, may be given
him to assist in the acoomplishment of that end.
^'A passjwrt is the only formal evidence the Department can give
that the United States claims Mr. Hubbard as a citi/en. If the
French Government requires any other proof of claim, it would doubt-
less be fully developed in the correspondence which would follow any
attempt of the French authorities to disregard the evidence of a pass-
port. But Mr. HubUird and his guardian should be distinctly
advi.sed that this Government can not be expected to manifest any
interest in claiming as a citizen a person who is voluntarily with-
drawn from the jurisdiction of our laws, and who exhibits no prac-
tical intention to fulfill the duties of citizenship. Unless Mr. Hub-
Ijard makes good his citizenship within the year, no new pas-sport
will be granted him.''
Mr. Foster. Sec. of State, to Mr. Coolidge. niin. to France, No. 119, Dee.
9, 1892. For. Rel. 1G9.
See Mr. Coolidge's No. 77. Nov. 12. 1X92. For. Rel. 1892. 108.
As to the case of Jacob Woldenberg. in Russia, see Mr. Blaine. Sec. of
State, to Mr. Smithy min. to Russia. No. 88, April 4, 1891, MS. Inst.
Russ. XVII. 2. .
C.,the widow of an xVmerican citizen, applied to the legation of the
United States at Berlin for a passport for herself and six minor chil-
dren. It appeared that C. was of (ierman birth, that she had resided
abroad since 187;^, that she was domiciled in (iermany, that all her
children were born abroad, and that it was her intention to live in
(iermany till their education was completed, the eldest being 18 and
the youngest 8 years old. It Avas decided that a passport should be
given to her. in order that " the right of her sons to elect American
citizenship on their majority may be i)reserve(l unimj)aired :" and,
that, as they came of age. and sei)arate passports becaiiie necessary
to them, " their right thereto must be determined independently and
upon their own merits."'
Mr. Blaine, Sec. of State, to Mr. IMielps, min. to (Jcrmany. Nov. 11. 1891,
For. Rel. 1891,. 521.
888 PASSPORTS. [§ 501.
H., born in the United States in 1874, was taken to Venezuela in
1875 bv his father, who chiimed to have previousl}'^ ijeclared liis
intention to become a citizen of the United States, and )yho in 1882
Avas appointed United StatCvS consuhir ajr^nt at San Cristobal, Vene-
zuehi. Subsequently the father, after thirty years' absei^^^'e, returned
to his native city, Hanover, taking with him H., who, e^fly in 1802,
being then an apprentice at Hamburg, applied for ap American
passport, declaring it to be his intention in three years, pt the expi-
ration of his apprenticeship, "to return to America to reslfle." Held,
that a passport, should issue, subject to any claim of Cirer|iuuiv to hi?
allegiance while he remained in that country, since he was born of a
German father.
For. Kel. 1892, 184, 189. A similar decision was renderefj in the case
of A. B., id. 184, 188, 191.
By article 69 of the constitution of Brazil, it is declared ^hat natives
of Brazil, though their parents be foreigners, shall 1:^ Brazili n
citizens. Certain persons, born in Brazil of American parents and
residing in that country, applied to the legation at Rio for passports
for purposes of protection while continuing to reside in IJrazil. The
legation declined to issue passports while the applicants voluntarily
remained within Brazilian jurisdiction. Its action AvajS approved.
Mr. Olney, Sec. of State, to Mr. Thompson, min. to Brazil, Nov. 12, 1895.
For. Rel. 1895, I. 74.
D., a native of Russia, who had been naturalized in the United
States, was held to have forfeited his right to a passpo|7t by reason
of his return to and long residence, which was apparently to be con-
tinued, in his native country. His minor daughter, 20 ypars of age,
who was born abroad, was, however, held to be entitled tp a passport
as an American citizen " for the purpose of quitting Rqgsia now or
after coming of age ; '" but it was stated that the passporfe " should be
expressly valid for tAvo years only from date, and noti capable of
rencAval, should her stay in Russia tAVO years hence be ps indefinite
as it apparently is noAV."
Mr. Olney, See. of State, to Mr. Peiree, charge, No. 335, ^ov. 18, 189'i,
MS. Inst. Russia, XVII. 510.
Where a person is born abroad of a father Avho was a naturalized
citizen of the United States and Avho has remained out of the
United States for a number of years, tl^ first question to be deter-
mined is whether the father had at the time of the son's birth
renounced his American citizenship. If he had not, the case, of the
son is to be treated like that of a native-born citizen of the United
States Avho has gone abroad; and, if he has attained |iis majority
§ 501. "j TO WHOM ISSUED. 889
and has continued to reside abroad since so doing, he must show,
before issuance of a passport to him, that he intends '* to return
to the United States within some reasonably definite period, or at
least that he had a definite intention to return for the purpose of
residing here pennauently.''
Mr. Sherman, Sec. of State, to Mr. Storer, inin. to Belgium, Nov. 8,
1897, For. Rel. 1897, 29, 30.
See, also, Mr. Sherman, Sec. of State, to Mr. Storer, min. to Belgium,
Nov. 10, 1897, For. Rel. 1897, 31.
George Victor Gross, born at Marseilles, France, Aug. 29, 1885,
of an American father, aj)plied to the American embassy in Paris,
in July, 1900, for a passport. He stated that he intended to " return "
to the United States in three years, and desired the passport for the
purpose of visiting (lernumy. The embassy refused to grant the
application, but the Department of State directed that the passport
be issued, on the ground of the applicant's American citizenship
under § 1993, R. S.
Mr. Adee, Act. Sec. of State, to Mr. Porter, Am. amb.. No. 825, Aug.
28, 1900, MS. Inst. France, XXIV. 33,").
See Mr. Hay, Sec. of State, to Mr. Porter, No. 712, Jan. 4, 1900,
in relation to the case of John Raoul Doazan, who was born In the
United States of a naturalized citizen of French origin, and who
was taken when a ujinor by his father to France. (MS. Inst. France,
XXIV. 253.)
The action of the embassy at Rome in granting a passport to the
American-born child of Italian parents was approved. (Mr. Adee.
Act. Sec. of State, to Mr. Iddings, charge, Aug. 8, 1901, For. Rel.
1901, 303.)
B. was born in February, 1880, of American parents, at Buenos
Ayres, in which city he had since resided down to January, 1901,
with the exception of two years' absence at school. He desired a
passport for use in P^urope while on his way to the United States,
where he expected to live. It was held that as B. was under § 1993,
Revised Statutes, a citizen of the United States, it was j^roper to
issue him a passport, it not appearing that the Argentine Govern-
ment had made any claim to his allegiance and that he was about to
leave that Republic finally and come to the United States.
Mr. Hay, Sec. of State, to Mr. Lord, min. to the Argentine Republic, Feb.
25, 1901, For. Rel. 1901, 2.
In the case of Rafael Franklin Hine, a youth of 19 years, who was
born in Costa Rica of an American father, and was educated and
had always lived in that country, but who claimed exemption from
military service there as a citizen of the United States, it was held
that he might, in virtue of § 1993, Revised Statutes, receive a pass-
890 PASSPORTS. [§502.
port. It was added, however, that the question " how far the right
to protect him may be exerted depends to a oonsitU'rable extent upon
the chiims that (\)sta Kica has upon him under her hiw, upon which
point the Department is not advised."
Mr. Hill. Acting Sec. of State, to Mr. Merry, niin. to Costa liicn, May 7,
liX)l, For. Kel. liR)l. 421.
8. Declaration ok Intrntion.
§ 502.
Passports were at one time issued to persons who had declared
their intention to bt'come citizens of the United States. When the
practice began, when it ended, and the extent to which it prevailed,
the records of the Department of State do not enable us to say. The
papers were not issued, however, to such persons as citizens, but only
as residents who had declared their intention.
In 182.3 an application was made for a passport for a Mr. Glazer.
With the application there was filed a certified copy of his declara-
tion of intention. In reply, Daniel Brent, chief clerk, for many years
a useful and eminent official of the Department of State, enclosed
" the passport of this Department," and added : '* The Secretary re-
grets that he can not give a passport to him [Mr. Glazer] as an actual
citizen, but only as a resident, having an intention to become one
according to the official certificate furnished."
Mr. Brent to Mr. Graff, June 7, 182.3, MS. Notes to For. Leg. III. 137.
Hunt's Am. Passport, 12, 44. mentions a " special passi)ort " granted by
Mr. Clay, as Secretary of State, March 15. 182.'S, to a declarant ; but
the form there given indicates that it was the passport usually issued
at that time in such cases. The language of Mr. Brent seems hardly
tor leave room for doubt on this point.
" I regret that your request in respect to Mr. Zeller can not be com-
plied with. As he is not a citizen of the United States, but only
intends to become one, a passport can not be granted to him by this
Department."
Mr. Forsyth. Sec. of State, to Mr. Ingersoll. Nov. 27, 18:3."), 28 MS. Dom.
I^et. 1.50.
See, to the same effect, the following: Mr. Forsyth. Sec. of State, to Mr.
Brewster, .Tune 15. IS^C, 28 MS. Dom. Let. 347.
Mr. Webster, Sec. of State, to Mr. Ostreuner, April 11. 1842. .32 MS. Dom.
Let. 287.
Mr. Calhoun, Sec. of State, to Mr. Kobe, May 7, 1844, 34 MS. Dom. Let.
175.
" Your letter of the 18th instant has been received, in which you
' enclose a certificate in behalf of Fred Schulenl>erg, a respectable resi-
§ 502.J TO WHOM ISSUED. 891
dent of this county, who intends to start in a few days on a journey
to Europe, but having negh'cted to take the necessary steps for his
final admission as a citizen, and there being no court in session at
this moment to which he could apply, he is now without the certifi-
cate of naturalization required by the circular lately received. I
enclose, however, the certificate of his first declaration, and respect-
fully suggest whether the Department could, under the circumstances,
grant the applicant a passport.'
'' I regret to say that this is impossible. This Department has
authority to grant passports only to citizens of the United St^ites.
The passport certifies that the bearer is a citizen, and you will readily
perceive that such a certificate can not be given to anyone not a
native citizen, until every requisite prescribed by law to his becoming
a citizen has been actually fulfilled. His intention to become so may
be ever so manifest, and his right to become so at any moment he
pleases may be ever so clear and unquestionable; still this does not
make him one; on the contrary, it renders it certain that he is not
one. This is the plain letter, and the plain meaning and operation
of the law, and the subject is one in regard to which the Department
possesses no discretioiuiry power whate\^er.''
Mr. Buchanan. Sec. of Stato. to Mr. Ilnren, Aug. 20. 1840. 80 MS. Doni.
Let. 78.
For the fireuhir ahovo referred to see Hunt's xVmerican Passport. 40.
See, to the same effect, Mr. Buchanan, Sec. of State, to ^Ir. Hoetlin. Feh.
24, 1847, 80 MS. Doni. Let. 188.
Also, Mr. Chiyton, Sec. of State, to Mr. Thompson, Aug. 25. 1849, 87 MS.
Dom. Let. 284; to Mr. Ilannegan, Sept. 20, 1840, MS. Inst. Prussia,
XIV. 178.
Mr. Webster. Sec. of State, to Mrs. Meiklehani. .Tan. 28., 18.")2, .80 MS. Dom.
Let. 471.
"With respect to the certificates of courts of justice in favor of per-
sons who have declared their intention to become citizens, the case is
in some degree dilferent. They have taken the preliminary stej)
toward naturalization, and seem to be entitled to some recognition of
that stej). While you cannot grant them passports as citizens, there
is no impropriety in authenticating their certificates by the usual coun-
tersign. It will be for the European authorities to pay such res])ect
to the document as they think jjroper. The passport itself is but a
re<|uest to foreign governments to allow the bearer to enter and i)ass
through their dominions, and urgent reasons of state Avarrant them in
refusing to do so. No just offense could be taken l)v the United States
if the certificates in (juestion shoidd j)rove of little value to the hold-
ers. In all connnon cases, however, they would probably prove as
valuable as passports: and as those who obtain them have disabled
themselves from procuring passports from their own governments.
892 PASSPORTS. ■ [§502.
they seem to have some claim to all the aid in this way which we can
with propriety give them."
Mr. Everett, Sec. of State, to Mr. Ingersoll, luiii. to Kngland, Dee. 21, 1852,
MS. Inst. Gr. Brit. XVI. 180.
" Passports are not issued from this Department to any person
not a native of the United States who shall not have complied
with the naturalization laws. The diplomatic and consular agents
-abroad have no authority to countersign any certificate issued by any
State or municipal authority to a person who may have merely de-
clared his intention to become a citizen."
Mr. Marcy, Sec. of State, to .Mr. Wolf, May 31, 185.3, 41 MS. Doni. Let. 401.
See, also, Mr. Marcy, Sec. of State, to Mr. Young, Aug. 29, 1853, 41 MS.
Doui. Let. 499; Mr. Hunter, Act. Sec. of State, to Mr. Keeler, Aug.
21, 1854. 43 MS. Dom. Let. 72.
For a reference to a circular letter to diplomatic and consular officers,
given to the Gerniania Musical Society, of Boston, the nienihers of
which were said to have declared their intention to become citizens,
and to whom it was said passjwrts could not be issued, see Mr. Marcy,
Sec. of State, to Mr. Brandt, Jan. 2, 1854, 42 MS. Dom. Let. 137.
" If he goes abroad with papers showing that he has declared his
intention to become a citizen of the United States, and presents them
to our ministers, they are required, if they think the documents genu-
ine, to make an indorsement on them to that effect unless such minis-
ters have reason to believe that such intention has been abandoned."
Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England, Apr. 13,
1854, MS. Inst. Gr. Brit. XVI. 28.5.
" The subject of passports, to which you refer in your No. 6, is one
which of late has very much occupied the attention of this Depart-
ment, and in regard to which our representatives are expected to
exercise great vigilance to prevent the deception and abu.ses which
are not unfrequently practiced in regard to them. Instructions on
the subject have been addressed to several, of our legations, and it is'
contemplated to prepare a general circular which will, as far as pos-
sible, cover the whole ground.
" The imi)roi)riety of any of our legations granting a passport to a
foreigner under any circumstances, even with the omission of the
clause asserting citizenship, and merely asking for the bearer liberty
to pass freely is obvious, for as this Department possesses the faculty
of granting passports only to bona fide citizens of the United States,
and as the passport is merely a certificate of citizenship, it follows, as
a matter of course, that no representative of the United States can
Avith propriety give a passport to an alien.
" Further, if an alien or foreigner has become domiciled in the
United States, or declared his intention to become an American citi-
>; 502.] TO WHOM ISSUED. 893
zen, he is not entitled to a passport declaring him to be a citizen o^
the United States. Both of these classes of persons, however, may be
entitle^] to some recognition by this Government. The most that can
be done for them by your legation is to certify to the genuineness of
their papers when presented for attestation and when there can be no
reasonable doubt as to their being authentic; and to this simple cer-
tificate that, to the best of the belief of the legation, the documents
in question are genuine, the European authorities are at perfect lib-
erty to pay such respect as they think proper.
" This Government cannot rightfully, and does not, claim of for-
eign powers the same consideration for a declaration of intention
(o become a citizen as for a regular passport. The declaration,
indeed, is prima facie evidence that the person who made it was at its
date domiciled in the United States and entitled thereby, though not
to all, to certain rights of a citizen, and to much more consideration
when abroad than is due to one who has never been in our country ;
but the declarant not being a citizen under our laws, even while domi-
ciled here, cannot enjoy all the rights of citizenship either here or
abroad. He is entitled to our care, and in most circumstances we have
a right to consider him as under our protection ; and this Government
is disposed and ready to grant him all the benefits he can or ought to
receive in such situation. If such individual, however, afterwards
leaves this country, goes to another, and there takes up his permanent
abode, his connection with the United States is dissolved, and his
intention to become a citizen must be considered to have been aban-
doned. Under the circumstances the previous declaration ceases to
be available for any purposes Avhatever. But when a person with a
fair intent has made his declaration and goes abroad for any purpose
not incompatible Avith the objects of the declaration, and the legation
has certified to the genuineness of his papers, the Government of the
United States has done all that can be required or reasonably
expected and can have no just cause of complaint if other govern-'
ments see fit to refuse to give the same effect to such papers as they
usually give to regular passports in the hands of a citizen."
Mr. Marcy. Sec. of State, to 'Slv. Siebels, uiiii. to HelKiuiu, No. 0, May 127,
1,S.".4. MS. Inst. Helj;. I. S2.
A snl»staiiti;illy identical instrwtion may l)e found in ;Mr. Marcy, Sec. of
State, to Mr. Fay, charge d'affaires to Switzerland, No. 10, May 127,
lSr.4. MS. Inst. Switz. I. 11.
See, also, Mr. Marcy, See. of State, to Mr. Clay, niin. to I'eru, Xo. 2.S,
Dec. 28, 1S.")4, inider Doniicil. sui»ra, S 4!)1.
Similar lanKua^e may also l»e found in Mr. Marcy to Mr. Buchanan, min.
to Enf;l;ind, April i:^ lS.-)4, .MS. Inst. Gr. I?r. XVI. 28.">. an extract
from which is jiiven above; also in .Mr. Marcy. Sec. of State, to Mr.
Jackson, charjie d'affaires at Vienna, Xo. 17, Sept. 14, 1854, MS. Inst.
Austria, 1. 100.
894 PASSPORTS. r§-'>02.
>"As this Department grants passjK)rts only to bond fide citizens of
the United States, and as a passport is nothing more than a certificate
of citizenship, it follows, necessarily, that you can, with propriety,
give a passport neither to an alien who may have become domiciled in
the United States nor to a foreigner who has merely declared his in-
tention to become an American citizen, although both of these classes
of i^ersons may be entitled to some recognition by this (loveriunent.
The most that can be done by you is to certify to the genuineness of
their papers when presented for your attestation, and when you have
no reasonable doubts of their authenticity. The authorities of for-
eign states may pay such respect to these documents as they nuiy think
proper. The verification which should be placed upon the back of the
certificate might be in these words :
" ' Le(jation of the Unitei) States
'"At .
" ' I hereby certify that, according to the best of my knowledge and
belief, the within document is genuine.
fSEAL OP THEl " ' T A p ' "
\ LEGATION I t» . ^v. J. .
jNIr. Marey, Sec. of State, to Mr. Peden, Apr. 10, 185(j, MS. Inst. Arg. Hep.
XV. 91.
This foi'iji of certification was given in Mr. Mai'cy, See. of State, to Mr.
Clay, niin. to Peru, No. 23, Dee. 28. 18.W, MS. Inst. I'eru, XV. ir>0.
It will be observed that the instruction to Mr. Peden is an abbreviation
of those sent in 1854 to Mr. Siebels and other ministers, and reverts
substantially to the position taken by Mr. Everett in his instruction to
Mr. Ingersoll, of Dec. 21, 1851, above quoted. The anii)lifications in
the instructions of 1854 evidently were due to the influence of the
then recent Koszta case.
"The act of Congi-ess [of Aug. 18, 1850] forbidding the issue of passports
except to citizens was passed very soon after tlie incident of ]Martin
Koszta, and that case was presumably in contemi)lation of the law-
makers." (;Mr. Hunter, Act. Sec. of State, to Mr. Howean, Sept. 6,
1869, 82 MS. Dom. Let. 39.)
" A copy of the regulations of the Department upon the subject of
passports is herewith enclosed, from which you will perceive that they
are furnished to citizens of the United States only. As Mr. Steinbach
has only declared his intention to become a citizen, his case is not
embraced by the rule. No other i)aper than a passport which can
lawfully be issued is ever granted by this Department upon such an
occasion."
Mr. Cass, Sec. of State, to Mr. Stevenson, M. C., Dec. 5. 18(i0, 53 MS. Dom.
Let. 290.
" It appears that you are a person of foreign birth, Avho has de-
clared his intention to become a citizen of the United States, but
no evidence is furnished that you have yet been naturalized. It
§ 502.] TO WHOM ISSUED. 895
also aj3pears that your, age is sixty-four. The only persons of for-
eign birth not naturalized who are entitled to passports are those
who, having declared their intention to become citizens, are liable
to military duty. By reason of your age, you are excluded from this
class. To entitle you to a passport it will be necessary for you to
furnish this Department with ])roof that you have become a citizen
of the United States. The evidence required is a certificate of citi-
zenship, under the seal of the court in Avhich you were naturalized."
Mr. F. W. Seward, Act. Sec. of State, to Mr. Glassinan, Nov. 4, 18()3, 62
MS. Doiii. Let. 207.
This letter refers to the act of March 'A, 1803, 12 Stat. 754, under which
persons liahle to military duty were exempted from tlie operation of
the provision of tlie act of Aug. 18, 18.^)(), forhidding tlie issuance of
passports to any l)ut citizens. Tliis exemption was done away with
by tlie act of May ;>0, ISdlJ, 14 Stat. 54, wliicli :ilso expressly pro-
vided : "And hereafter passports shall be issued only to citizens of
the United States."
See Mr. Fish^ Sec. of State, to Mr. Washburne, min. to France, No. 18J,
■ Oct. 4, 1870, MS. Inst. France, XVIII. 428; Mr. Bayard. Sec. of State,
to Mr. Coleman, charge at Berlin, No. 334, July 10, 1888, For. Rel.
1888, I. ()4G ; Mr. Bayard, Sec. of State, to Mr. Steiu, Aug. 28, 1888,
109 MS. Dom. Let. 503.
" By law of Congress, passports can be granted to those only who
are nativ^e-born citizens or who have completed their naturalizaticm.
This Government can not, therefore, extend its protection to those
who are not recognized by its laws as citizens."
Mr. Seward, Sec. of State, to Mr. Walker, Aug. 24, 18(i8, 79 MS. Dom. Let.
239.
"The acts of Mr. Sanford, and the correspondence with Mr. Mason,
Mr. Buchanan, and Mr. Belmont, appear to bo antei'ior to the act of
I85(), Avhich, Avith the act of 1860, establishes a positive rule for the
guidance of public officers. . . . It is clearly the duty of the Sec-
retary of State not to authorize passports to be ' granted, issued, or
verified in foreign countries by diplomatic or cxmsular officers of the
United States to or for any other j)ersons than citizens of the United
States.' If this law apparently operates harshly upon persons who,
by reason of their declaration of intention to become citizens of the
United States, suppose themselves entitled to the j)rotection of its
representative abroad, it is for the law-nudving power to determine
whether it is wise to change the policy which has so long been estab-
lished. While the law remains as it is, I can see no ' official ' jirotec-
tion which can be extended to persons who are not citizens of the
United States. The granting of an official certificate of i)i'otection,
by an officer of the Government who is authorized to issue such cer-
tificates, implies a committal of the Government in advance to enforc-
896 PASSPORTS. [§ 502.
ing that protection by official interference and by other acts which
may eventually lead to the employment of force. This consideration,
taken in connection with the clear provisions of law in that respect
and with the well-defined policy of the law, induced the Department
to issue the circular of October last, prohibiting the granting of let-
ters of protection except in the form of passports, and prohibiting
the granting of passports to any but citizens of the United States."
Mr. Fish, Sec. of State, to Mr. Washburne, iiiin. to France, Oct. 4, 1870,
MS. Inst. France, XVIII. 428. See Mr. Fish, Sec. of State, to Mr.
Bolver, njin. to Turkey, April 19, 1872, MS. Inst. Turlvey, II. 400.
In denying a request for a passport for a native British subject who
had declared his intention to become a citizen of the United States,
Mr, Bayard said: "A declaration of intention does not involve abju-
ration of original allegiance. That only takes place when the party
is finally admitted to citizenship. We have a naturalization treaty
Avith Great Britain, by the first article of which the full effect and
v^alidity of lawful naturalization is mutually recognized, and by im-
plication change of allegiance is not recognized until lawful natural-
ization is complete. There would seem to be, therefore, no obstacle
to the party in question quitting this country under a British
passport."
Mr. Bayard, Sec. of State, to Mr. Wilson, Oct. 17, 1885, 157 MS. Don\.
Let. 392.
See Mr. Bayard, Sec. of State, to Mr. Melvin, Oct. 26, 1885, 157 MS. Dora.
Let. 447; Mr. Bayard, Sec. of State, to Mr. Coleman, charge at
Berlin, No. 334, July 10, 1888, For. Rel. 1888, I. 04(>; Mr. Bayard,
Sec. of State, to Mr. Stein, Aug. 28, 1888, 169 MS. Dom. Let. 503.
Since passports can be issued only to citizens of the United States,
the Secretary of State has no power to issue a certificate of domicil,
or a certificate stating that he is " satisfied " that a certain individual
" has his domicil in the United States."
Mr. Bayard, Sec. of State, to Mr. Develin, Oct. 21, 1887, For. Rel. 1887,
355. See supra, § 491.
" I have to acknowledge the receipt of your letter of the 13th
ultimo, with which you transmit certain documents in relation to
the Reverend Guido F. Verbeck, a native of the Netherlands and a
missionary of the Board of Foreign Missions of the Keformed Church
of America. Among these documents is a letter written by the
Honorable William H. Seward, on the 5th of April, 1859, to Town-
send Harris, esq., then minister of the United States to Japan, stating
that, while Mr. Verbeck, who was then about to set out for that
country, having only declared his intention to become a citizen of the
United States and not having been naturalized, was not entitled to
§ 502.] TO WHOM ISSUED. • 897
receive a passport, yet it was held ' in the celebrated Koszta case '
that a declaration of intention was ' snfficient to entitle the bearer
to the protection of our Government and of its naval authorities
abroad.' And in conclusion Mr. Seward said : ' Mr. Verbeck is a very
worthy man, and I beg to commend him to your protection, which
may, perhaps, be needed under the peculiar circumstances of his
migration to Japan.'
'' You state that Mr. Verbeck, since his return to the United States
in 1889, ' has made every effort to complete his naturalization and
become de facto an American citizen, but without success,' and that
you are ' informed by one of the judges of the court of common pleas
of this city and county (New York) that there is no way known to
our laws by which his desire can be realized.' As the ground of this
opinion is not disclosed, it is supposed that it refers only to the period
of residence in the United States which our naturalization laws
require. In view, however, of the fact that Mr. Verbeck is unable
now to obtain naturalization, you request that the Secretary of State
give him a letter similar to that written by Mr. Seward in 1859.
" The Department has carefully examined the papers submitted
to it and the various rulings on the question presented, and has
failed to discover that the law has ever been so construed as to permit
the Secretary of State to grant a letter of the purport of that now
requested. It may not, perhaps, have been observed that the letter
of Mr. Seward was not written by him as Secretary of State, but
nearly two years before he came into this office, when Jeremiah S.
Black was Secretary of State. It was, therefore, only a letter of
personal commendation and not an official guarantee of protection.
The duties of the Secretary of State on this subject are well defined.
In an instruction to the minister of the United States to the Argentine
Republic, of March 27, 1867, Mr. Seward, then Secretary of State,
said: 'Passports are the only protection papers known in the law,
or sanctioned in this Department.' Mr. Marcy, who conducted the
correspondence in the Koszta case, three years later, in an instruction
to one of our ministers of April 10, 1856, said that a passport could
with i^ropriety be issued ' neither to an alien who may have become
domiciled in the United States nor to a foreigner who has merely
declared his intention to become an American citizen, although both
of these classes of persons may be entitled to some recognition by
this Government. The most,' he continued, ' that can be done by
you is to certify to the genuineness of their papers when presented
for your attestation, and when you have no reasonable doubts of their
authenticity. The authorities of foreign states may pay such respect
to these documents as they may think proper.' I shall only (juote
one more ruling of the Department, as follows: 'It is clearly the
duty of the Secretary of State not to authorize passports to be
H. Doc. 551— vol 3 57
898 PASSPORTS. [§ 502.
granted, issued, or verified in foreign countries by diplomatic or
consular officers of the United States to or for any other persons
than citizens of the United States. If this law apparently operates
harshly upon persons who, by reason of their declaration of intention
to become citizens of the United States, suppose themselves entitled
to the protection of its representatives abroad, it is for the law-making
power to determine whether it is wise to change the policy which has
so long been established. While the law remains as it is, I can
see no official protection which can be extended to persons who are
not citizens of the United States.'
" This was written by Mr, Fish, when Secretary of State, on Octo-
ber 4, 1870, to the minister of the United States to Switzerland, and
expresses clearly and comprehensively the construction uniformly
given to the law both before and afterwards.
" The Department has not failed to observe that it has been infer-
red from the documents now before it, as stated in your letter, that
Mr. A^erbeck has constantly been ' recognized as under the protection
of the United States, and treated in all respects as a citizen thereof.'
The strongest evidence to that effect is the certificate given by Mr. De
Long on April 10, 1873. In this certificate Mr. De Long stated that
he was unable to issue a passport because Mr. Verbeck could not at
the time produce other evidence of citizenship than a declaration of
intention, and that he consequently issued the certificate in lieu of a
passport. In regard to this certificate, it is to be observed, in the first
l)lace, that it was directly in conflict Avith the law as previously con-
strued by Mr. Marcy, by Mr. Seward, and by Mr. Fish, as Secre-
taries of State, in the instructions above quoted, and as uniformly
construed by their successors. In the second place, it may be noticed
that, on the same day as that on which the certificate was issued, Mr.
De Long gave Mr. Yerbeck, who appears to have been on the point
of visiting Europe, a letter commending him to the ' most favorable
personal and official acquaintance ' of the minister of Holland in
Rome, and requesting the latter, if Mr. Verbeck should by any chance
become involved in trouble, to intervene and do all in his power to
aid him. To this Mr. De Long added the request that the minister
would also present Mr. Verbeck to the minister of the United States
at Rome.
" If Mr. Verbeck should become involved in any difficulty it would
not be improper, in view of his previous history and long connection
with an American board of missions, for the minister of the United
States in Tokio to extend to him his good offices. But, as the law
authorizes an assurance of official protection only to citizens of the
United States, the Department is not permitted to go further. The
leading prescription of the conditions of citizenship is as binding
§ 503.] PASSPORT APPLICATIONS. 899
upon the Department as upon the courts; and, as Mr. Verbeck has not
complied with those conditions so as to enable him to be admitted to
citizenship, the Department is unable, by giving him such a letter as
that requested, to assume to confer upon him a status that the law
denies to him."
Mr. Blaine, See. of State, to Mr. Cobb, Dee. 5, 1890, 180 MS. Doni. Let. 95.
See, also, Mr. Blaine, Sec. of State, to Mr. Xortz, April 3, 1890, 177 MS.
Dom. Let. 146.
"Where a diplomatic representative issued a certificate that the per-
son named therein had " declared his intention to become a citizen of
the United States," and urged that, as he also asserted an intention to
become *' fully naturalized " " at the earliest opportunity," " he be
accorded the protection and courtesy usually given citizens of the
United States," the Department of State declared that the issuance
of such certificate was a violation both of the laws of the United
States and of the regidations of the Department, and directed that
" steps should be promptly taken to recall it."
Mr. Adee, Act. See. of State, to Mr. Russell, No. 285, Aug. 21, 1899, MS^
Inst. Venezuela, IV. 662.
IV. APPLICATIOXS.
1. FoBJVis AND Evidence.
§ 503.
For some time after the establishment of the Government of the
United States no definite rules were prescribed with regard to appli-
cations for passports or the evidence on which they were granted.
The lack of definite requirements apparently resulted in many persons
obtaining passports who were not entitled to them. A circular con-
corning applications and the evidence by which they must be accom-
panied was issued by the Department of State in 1845, and since that
time various regulations have been established and enforced.
"• In order . . . that you may be furnished with passports for
Mrs. Susannah Smith (you mother-in-law), your wife, and two chil-
dren, it will be necessary that you send us proof of your own and of
the citizenship of the first-mentioned lady, and that you likewise in-
form us of the Christian name of Madam Latour. A certificate from
the clerk of the court before which you became naturalized, or an
intimation from any respectable person in Baltimore, that he knows
Mrs. Smith and yourself to be citizens of the United States, will be
sufficient."
Mr. Brent, acting chief clerk, to Mr. Latour, Aug. 14. 1804. 14 MS. Doni.
Let. 353.
900 PASSPORTS. [§ 503.
" Respect for the passport of an American minister abroad is
indispensable for the safety of his fellow-citizens travelling with it,
and nothing would be so fatal to that respect as the experience that
his passport had been abusively obtained by persons not entitled to it.
All passports should be gratuitously given, and a record or list kept
of all those which you may deliver, containing the name and voucher
of American citizenship of the persons to whom they are given. They
may be refused even to citizens of the United Stages who have so far
expatriated themselves as to have become bound in allegiance to other
nations, or who in any other manner have forfeited the protection of
their own. Protections to seamen are not included under the denom-
ination of passports, nor are they ever granted by public ministers.
Seamen may, nevertheless, like other citizens, occasionally want the
passport of the minister, and be equally entitled to it.-'
Mr. Adams, Sec. of State, to Mr. Nelson, min. to Spaiu, No. 2, April 28,
1823, MS. Inst. U. States Ministers, IX. 175.
See, also, Mr. Adams, Sec. of State, to Mr. Allen, Nov. 30, 1823, MS.
Inst. U. States Ministers, X. 123.
" Your observations on the importance of great care in preventing
foreigners from protecting themselves under American passports are
very just, particularly in the case of Spaniards who use them to evade
the laws of Mexico. In proportion to the care which all our public
agents ought to take in giving proper protection to our citizens, ought
to be their circumspection in preventing others, not entitled to that
privilege, from usurping it. The President therefore highly ap-
proves the precautions you have taken in the instances you mention.
And you are instructed to use every proper endeavor to convince the
Mexican Government of the sincerity of your exertions to detect
impositions of this kind in pursuance of what you may assure them
IS the w^ish of the President."
• Mr. Livingston, Sec. of State, to Mr. Butler, June 20, 1831, MS. Inst. Am.
States, XIV. 203.
For a printed form of application that came into use in 1830, see Hunt's
Am. Passport, 45.
" I am directed by the Secretary to acquaint you, in answer to your
application for a passport for Francis W. Lusak, that the proof of
citizenship which accompanied that application is not deemed satis-
factory. It is expected that all naturalized citizens who may wish
passports will either send to this office the certificate of citizenship,
granted by the court in which they were admitted, or that they will
exhibit the same- to a notary or other magistrate, who must certify
under his official seal to the fact of such an exhibition."
Mr. Brent, chief clerk, to Mr. Cooi^er, Feb. 23, 1832, 25 MS. Dom. Let. 29.
§ 503.] APPLICATIONS FOR PASSPOETS. 901
" Satisfactory evidence of citizenship is necessary before he can be
furnished with a passport. A notarial certificate of the fact is not
deemed sufficient, although it is quite proper that the evidence trans-
mitted be authenticated by a notary.""
Mr. Dickins, Act. Sec. of State, to Mr. Williams, Aug. 0, 18,36, 28 MS.
Dom. Let. 397.
" Passports are only granted to citizens of the United States. If
you know the persons applying to be such, by sending a description
of their persons embracing the following particulars^age, stature
(feet, inches), forehead, nose, mouth, chin, hair, complexion, face —
to this Department, the passports will be forwarded to yourself or
them as you may direct.
" P. S. — A description of the gentlemen is all that is necessary."
Mr. Forsyth. See. of State, to Mr. MeKennan, Feb. 7, 18:^7, 29 MS. Dom.
Let. 7.
The Mr. McKennan to whom this letter was addressed was the Hon.
Th. M. T. McKenuaii, of the House of Representatives. Taken in
eonnection with the preceding letter of Mr. Dickins to Mi\ Williams,
it indicates that the statement of Mr. Williams, as a member of Con-
gress, was received in lieu of the usual evidence of citizenship.
"Applicants for passports are required to furnish this Department
with proof of citizenship, as well as a description of their persons.
If native citizens, their own affidavit to the fact, made before a
justice of the peace or notary, is sufficient; if naturalized, the certifi-
cate of naturalization must be forwarded to the Department, and will
be returned with the passport."
Mr. Webster, Sec. of State, to Mr. Patterson. Feb. 10, 184.*?, .S3 MS. Dom.
Let. 71.
To the same effect is Mr. Webster, Sec. of State, to Mr. Ducassel, April 1,
184.3, 33 MS. Dom. Let. 131.
"All applications for passports must be accompanied by evidence
of citizenship. If a native citizen of the United States, an affidavit
made by yourself before a notary public, and one other citizen to
whom he is personally known, will be sufficient; and if a naturalized
citizen, his certificate of naturalization must be transmitted for in-
spection. I refer you to the annexed circular for further particulars."
Mr. Buchanan. Sec. of State, to Mr. Wilkens, Oct. 1<5, 1845, 3,~) MS. Dom.
Let. 291.
Mr. Buchanan seems to have been the first Secretary of State to issue a
circular of instructions, giving particulars as to passiwrt applications.
The circular in question, dated July, 1845, is in Hunt's Am. Passix>rt,
4(5. See, also, in the same publications, p. 47. a reference to a yet
fuller circular issued by Mr. Buchanan, as Secretary of State, in
May, 1S4G.
902 PASSPORTS. [§ 503.
" A person wlio is entitled to receive a passport, if within the
United States, must make a written application, in the form of an
affidavit, to the Secretary of State.
'' The affidavit must be attested by an officer authorized to admin-
ister oaths, and if he has an official seal it must be affixed. If he has
no seal, his official character must be authenticated by certificate of
the proper legal officer.
" If the applicant signs by mark, two attesting witnesses to his
signature are required.
" The applicant is required to state the date and place of his birth,
his occupation, and the place of his permanent residence, and within
what length of time he intends to return to the United States with the
purpose of residing and performing the duties of citizenship therein.
" The applicant must take the oath of allegiance to the Government
of the United States.
" The application must be accompanied by a description of the per-
son applying, and should state the following particulars, viz: Age,
; stature, feet inches (English measure) ; forehead,
; eyes, ; nose, -; mouth, ; chin, ;
hair, ; complexion, ; face, .
" The application must be accompanied Iw a certificate from at
least one credible witness that the applicant is the person he repre-
sents himself to be, and that the facts stated in the affidavit are true
to the best of the witness's knowledge and belief."
Rules governing the granting and issuing of passports in the United
States, Sept. 12, 1903.
" 14. Blank foniif! of application. — They will be furnished by the De-
partment to persons who desire to apply for passports, but are not
furnished, except as samples, to those who make a biisines.s of pro-
curing passports.
" ir». Address. — Communications should be addressed to the Department
of State, Passport Bureau, and each communication should give the
post-office address of the i)erson to whom the answer is to he directed.
" 10. Rejection of application. — The Secretary of State has the right in
his discretion to refuse to issue a passjwrt, and will exercise this
right towards anyone who. he has reason to believe, desires a i)ass-
port to further an unlawful or improper purpose." (Ibid.)
As to rules governing applications prior to 1898, see Hunt's Am. Pass-
port, 48-C4.
See a circular of Mr. Bayard, Sec. of State, to diplomatic officers abroad,
Feb. 2.3, 1887, printed in For. Rel. 1887, 1134; also, what purport to
be revised regulations of May 1, 188(5, in relation to passports, as
printed in Wharton's Int. Law Digest. II. 409-471, but apparently
not now of record in the Department of State.
"WTiere the object is to obtain a passport for an insane person, the
application may be made and ])roper papers presented by the guard-
ian or nearest friend of the person in (piestion. " Even were this not
§ 504.] APPLICATIONS FOR PASSPORTS. 903
the case, the regulations in regard to issuing passports arc not imposed
by Congress, but are discretionary with the Executive, and may at
any time be interpreted or modified by the Department of State.
They should certainly not be applied in such a way as to exclude from
a passport persons by whom it may be most needed, as in the present
case."
Mr. Porter, Acting Sec. of State, to Mr. Winchester, niin. to Switzerland,
Xo. 4. .July 11, 188."), P'or. Rel. 188,'i, 807.
The action of the legation of the United States at St. Petersburg in
declining to comply with the request of the public prosecutor of the
Moscow district for the evidence on which a passport was issued to a
naturalized citizen of the United States was approved by the Depart-
ment of State, especially as it was presumed that the information was
sought for the purjjose of sustaining a charge of naturalization
abroad without the permission of the Russian Government.
For. Rel. 189G, 522.
Although the restrictions upon the issuance of passports are some-
times evaded by applying first to one legation and then to another, it
lias not been found to be practicable to apply a remedy by notifying
all other missions of the rejection of an application by one of them.
The circular of the Department of State of February ^5, 1897, re-
quires applicants to declare whether they have applied elsewhere and
been refused a passport. The good judgment of each envoy is trusted
to scrutinize passport applications presented to him, with a view of
eliciting the facts and acting accordingly.
Mr. Hay, Sec. of State, to Mr. Storer, niin. to Relginni. Feb. 4, 1809. For.
Rel. 1899, 84, 85.
" Believing, as I do, that, under the statute governing the issuance
of passports, declarations of identity, made by applicants for pass-
ports before a consular officer charged for the time being with the
care of American interests, should be entitled to full faith and credit
by the officials or agents of this Government, I have instructed Mr.
Straus, at Constantinople, in this sense."
Mr. Hay, Sec. of State, to Mr. Elliot, Jan. 12, 1900, 170 MS. Inst. Consuls,
476.
2. Native Citize.ns.
^ § 504.
Appropriate forms of applications are furnished for the use of
(1) native citizens, (2) naturalized citizens, (8) persons claiuiing
citizenship through the naturalization of parent or husband, and (4)
residents of the insular possessions of the United States.
904 PASSPORTS. [§ 505.
An application, containing the information indicated in the extract
given in the foregoing i-iection from the rules of 1903, suffices in the
case of native citizens.
Persons horn in the United States of alien parents are not required
to produce j^roofs of the subsequent naturalization of their parents,
since their citizenship is derived not from their parents' naturaliza-
tion, but from the fact of their American birth, the Constitution of
the United States providing that " all jiersons born or naturalized
in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside."
Mr. Hill, Act. See. of State, to Mr. White, ambass. to Germany, May 21,
1901, For. Kel. 1901, 178,
See, also, Mr. Wharton, Act. Sec. of State, to Mr. Phelps, min. to Germany,
No. 276, July 22, 1891. For. Rel. 1891. .51.5.
But a person born abroad, whose father was a native citizen of
the United States, nuist show that his father was born in the United
States, and resided therein, and was a citizen at the time of the
applicant's birth. The affidavit to this effect may be required to be
supported by the affidavit of one other citizen acquainted with the
facts.
Rules governing: the Granting and Issuing of Passports in the United
State.s, Sept. 12, 1908.
3. Naturalized Citizens.
§ 505.
"A naturalized citizen must transmit his certificate of naturaliza-
tion, or a duly certified copy of the court record thereof, Avith liis
application. It will.be returned to him after inspection. He uuist
state in his affidavit when and from what port he emigrated to this
country, w^hat ship he sailed in, where he has lived since his arrival
in the United States, when and before what court he was naturalized,
and that he is the identical person described in the certificate of nat-
uralization. The signature to the application should conform in
orthography to the applicant's name as written in his certificate of
naturalization, or an explanation of the difference should be sub-
mitted."
Rules Governing the Granting and Issuance of Passports, in the United
States, Sept. 12, 1903.
y
The wife or widow of a naturalized citizen, if she claims citizenship
by virtue of her husband's naturalization, '' nnist transmit for in.spec-
tion her husband's certificate of naturalization, must state that she
§ 505.] APPLICATIONS FOR PASSPORTS 905
is the Avife (or widoAv) of the person described therein, and must set
forth the facts of his emigration, naturalization, and residence, as
required in the rule governing the application of a naturalized
citizen." . '
Ibid.
" I have to state that, in relation to the party who has lost his
naturalization papers obtained in a State now in insurrection against
the Government of the United States, it will be sufficient in order to
obtain a passport from this Department if he shall make affidavit
of the facts in the case, joined with that of a person who has some
[seen] such papers in his possession."
Mr. Seward, Sec. of State, to Mr. Latham. July 2:?, ISGl. r>4 MS. Doui.
Let. 331.
W. E. B. applied to the United States legation at Buenos Ayres
for a passport, alleging that he was a naturalized American citizen
of (lerman birth, but that he had lost his ciM-tificate of naturalization.
As he was unal)le to furnish })roof of such loss, the legation at first
declined to issue a passport, but afterwards granted one on his pro-
ducing the affidavits of two American sea captains, said to be known
lo the United States consul as " good and true men," 'which declared
that the affiants knew that W. E. B. Avas " a naturalized citizen
under the laws of the State of New York." and that his representa-
tions Avere true. With reference to the case as thus stated, and with-
out having before it the original documents, the Department of State
said that the action of the legation api)eared to have l)een imjirovident.
Mr. Bayard, Sec. of State, to Mr. Ilaiina, luin. to Argentine Kei)ul)lic, No.
01, March 27, 18S8. For. Kel. 1888, I. 11.
"(1) Is a passport to be refused to the Avife or Avidow of n nat-
uralized citizen Avho has not the naturalization papers of her
husband?
"(2) Is a passport to be refused to a naturalized citizen Avho has
left his naturalization i)a})ers at home, oi' who has lost them?
"The k'gation should recjuire the original certificate or a duly cer-
tified copy tliereof to be produced as the best evidence of citizenship.
If the api^licant shall be unable to produce a certificate of naturali-
zation or a certified copy thereof, then the naturalization certificate,
like all other records, may be ])roA-ed by parol, but to admit parol
jwoof of it the following conditions nnist exist:
"(«) The prior existence of the certificate nnist be shown.
"(6) If burned or otherwise destroyed, such destruction of the cer-
tificate must be proved.
906 PASSPORTS. [§ 505.
"(c) If lost, dilifjent but inetfectual search for it must be shown.
"(c?) Parol proof of a lost or destroyed certificate should not be re-
ceived if the ori«jinal record of naturalization, of which a certified
copy could be ])rocured, is attaiiuible. A party who can not produce
his naturalization certificate can not su^Dply it by parol proof unless
he also prove that the original record of naturalization is unattain-
able and can not be reproduced by a certified copy."
Mr. Bayard, Soo. of State, to M. Vifrnaxid, ohargt' at Paris, No. .343, .Tuno
13, 188S, For. Kel. 1888, I. .->42.
This instruetion was reaflirinod l).vMi-. Rives, Act. Sec. of State, to Mr.
McLane, .Tune 30, 1888, For. Rel. 1888, I. 547.
" You suggest that a discrimination is made, under the instructions
recently given to you, between natives and naturalized citizens of the
United States, or at least that applicants for passports may allege
the existence of such a discrimination. The answer to this suggestion
seems to me plain. The rule of proof applied to each class of citizens
is the same; and it is the well-known legal rule, universally adopted,
that in all cases the proof to be submitted of the existence of a fact
must be the best proof of which the case is in its nature susceptible.
In the case of native citizens of the United States, as there is no
system in existence of individual registration, such as exists in some
other countries, the best j)roof is by affidavit and personal identifica-
tion to the satisfaction of the legation. But in the case of naturalized
citizens additional and other facts essentially different must be
established.
" By the laws of the United States naturalization of a foreign-born
person to be an American citizen is intrusted to the courts of record,
both of the several States and of the United States. By the rules of
evidence, as universally administered here, the record of such court
can be proved either by an inspection of the records themselves or by
a certified copy under the seal of the court; and such evidence is the
conclusive and sole proof of the action of the court.
" Whenever the question of citizenship is brought in issue within
the United States the certified abstract from the record of the court
is required to establish the fact of naturalization. In cases of loss or
destruction of the original records an exception is made, but then the
ground for the introduction of secondary evidence must be laid by
proofs in the usual mode.
" It is not perceived how a less stringent rule could properly be laid
down for the guidance of the agents of the Government residing in
foreign countries. The expediency of increased strictness is rather
apparent, when the serious nature and consequences of the guarantees
of nati(mal protection which are to accompany the issue of a passport
are taken into consideration. At the j^resent time, questions of
§505.] APPLICATIONS FOR PASSPORTS. 907
allegiance aiid citizenship are undergoing unusually serious examina-
tion in Europe, especially in the provinces of Alsace and Lorraine,
lately part of the territory of France, but in which German power is
now maintained in consequence of cession under the duress of war.
The obligations of the Government to its citizens are of the most far-
reaching nature, and the United States expect to perform their full
duty in protecting their citizens abroad, but the fact of such citizen-
ship must be established before our intervention can be appealed to.
It is not competent for this Department to alter the law which makes
naturalization the act of a judicial court of record, and for that reason
to be proven like other records,
" The hardships of the enforcement of the rule here insisted upon,
and which is not, as you seem to suppose, of recent origin, are more
apparent than real. The procurement of a certificate of naturaliza-
tion under the seal of the court is easy and inexpensive, and dupli-
cates can always be obtained before going abroad, or Avithin a fort-
night, by telegraphing, by anyone now in P^urope.
"The instructions heretofore given (No. 343) have thus been
reviewed in the light of 3^our recent representations, and it is not
perceived how this Department, consistently with public interests or
duty, can dispense w^th the customary and reasonable proof of Ameri-
can naturalized citizenship.
" The present time appears opportune to inform that portion of
the public who propose in their residence in foreign countries to enjoy
all the privileges of American citizenship, that at least thej^ must
establish their right to do so by the usual and easily acquired proofs."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, July 20, 1888,
For. Rel. 1888, I. r>r)2.
" I have to acknowledge the receipt of your No. 045, of the 23d ultimo,
in which you inform the Department of your issuance of a pass-
port to Mr. Max Hellman, a naturalized citizen of the United States,
without the exhibition by him of his certificate of naturalization, as
required by the rules of this Department. You state that lie is well
known to you personally, that he has been a naturalized citizen of the
United States for thirty years, and that while he failed to produce a
certificate of naturalization, he exhibited passports heretofore issued
to him by this Department, and also by the American legation at
Paris.
" Upon these facts, and especially in view of your ])ersonal knowl-
edge of the applicant, your action is approved. The personal
knowlege of a minister of the United States necessarily obviates the
necessity of more formal proof.''
Mr. Bayard. Sec. of State, to Mr. McLane, niin. to France, Aug. 10, 1888.
For. Uel. 1888, L G5o.
908 PASSPORTS. f § 505.
" In cases recently presented at Paris and elsewhere, in which per-
sons ot good rei)ute and widely knoAvn have alleged that they had left
their certificates of naturalization at home, and were, consequently,
unable to produce them to the legation, the Department has held
tliat the certificate of the minister as to his personal knowledge of
the status of the applicant would suffice to permit the issuance of a
passport."
Mr. Blaine, See. of State, to Mr, Grant, June 0, 1889, MS. Inst, to Austria
III. 495.
•• Only under exceptional circumstances should a passport be issued
to a naturalized citizen without a previous inspection of his natural-
ization certificate. Occasionally, when the good faith of the applicant
is palpable and the refusal to issue the passport might work hardship,
the fact that he has lost or left behind him his certificate may not
operate to cause the minister to refuse him his passport, but the cir-
cumstances of the case should be always set forth and the applicant's
sAvorn statement of them should be required.''
Mr. Adee, Act. Sec. of State, to Mr. Storer, min. to Belgium, July 23, 1897,
For. Rel. 1897, 25.
" You state that your predecessor issued a passport on January 11,
1875, to Mr. Hennessy, wife, and son, and that he now applies to a^ou
for a new passport, but that he is unable to present his certificate of
naturalization, being of alien birth, alleging that it has been destroyed
l)y fire. You ask for instructions as to your duty in this case and in
similar applications which may come before you. In reply you are
informed that the requirement that a person of alien birth should
])roduce his certificate of naturalization when making application
for a passport is of long standing and should be carefully enforced ;
but sometimes, through the loss or destruction of the document, it is
necessary to make an exception to the rule when the issuing official
is satisfied of the good faith of the application and when its rejection
might result in serious inconvenience or hardship. The nature of
the secondary evidence which may be required is governed by the cir-
cumstances surrounding each case, but the general rule laid down in
Mr. Bayard's instruction to Mr. Vignaud, June 13, 1888 (Foreign
Relations, 1888, p. 542), appears to be applicable to the case under,
consideration :
" '(«) The prior existence of the certificate must be shown.
"'(^) If burned or otherwise destroyed, such destruction of the
certificate must be proved. ...
" 'A party who can not produce his naturalization certificate can
not supply it by parole proof unless he also proves that the original
record of the naturalization is unattainable and can not be repro-
duced by a certified copy.'
§ 505,] APPLICATIONS FOR PASSPORTS. 909
" In issuing Mr. Hennessy a passport under the conditions set
forth above it would be well to advise him that for his future protec-
tion and convenience he should make an effort to have the record of
his naturalization restored. As it was, according to his statement,
recorded in a Chicago court, it is thought he may be al^le to accom-
plish its restoration under the ' burnt record act ' passed by the Illi-
nois legislature some years since for the relief of persons in Mr.
Hennessy 's situation."'
Mr. Sherman, Sec. of State, to Mr. Storer, uiiii. to Belgium, Sept. 1, 1897,
For. Rel. 1897, 26.
A passport was issued by the United States embassy in London to a
person who stated in his application that he was born in England
and emigrated to the United States, and that he was naturalized
before " a court at Boston on or about the year 1874." He produced
no certificate of naturalization, nor apparently any other proof of
citizenship, but the embassy seemed to have issued the passport on
the strength of the fact that he bore a circular letter of introduction
from the Department of State. The Department ruled that such a
letter was not evidence of citizenship.
Mr. Day, Acting Sec. of State, to Mr. White, charge d'affaires ad interiiu,
Feb. 17, 1898, For. Rel. 1898, 363.
Application was made to the United States legation in Paris for a
passport in the name of Stephen Emil Heidenheimer, Avbo claimed
to be a naturalized citizen of the United States, It subsequently
transpired that he was naturalized in 1871, six months before he had
completed the requisite term of five years' residence. It was there-
fore held that he was not a citizen, and that under sec. 4076, li, S.,
he was not entitled to a passport.
Mr, Bayard, Sec. of State, to Mr. McLaiie, min. to France, Dec, 8, 1888,
For, Rel. 1888, I. 565.
" Does a certificate of naturalization, if properly attested, justify,
ipso facto, the issue of a passport, provided identity of applicant be
established?"
"A properly authenticated certificate of naturalization, issued by
a court having jurisdiction, is conclusive evidence that the person
named therein has been admitted to citizenship, and can only be set
aside by direct proceedings to that end. Still, if it is made to appear
that the naturalization of the applicant was fraudulently obtained,
the Secretary of State, in the exercise of his discretion with respect
to the granting of passports even to citizens, which is given him by
section 4075, R. S,, will refuse the applicant a passport, without refer-
ence to his rights otherwise as a citizen, until his naturalization be
910 PASSPORTS. [§ 500.
regularly annulled by the courts. Every applicant, however, whether
native born or naturalized, in addition to his citizenship, is to be
required to comply with the other regulations governing the issuance
of passports."'
Mr. Blaine, Sec. of State, to Mr. Kyan, luin. to Mexico, April 9, 1892, MS.
Inst. Mexico, XXIII. 203. See supra, §§422-425.
Where an applicant for a passport stated that he was 22 years old
when he arrived in the United States, and that he was 25 when natur-
alized, it was held that his witnesses " nuist in some way have misled
the court '' as to his age and the duration of his residence, and that
unless the matter could be cleared up he could not receive a passport.
Mr. Foster, Sec. of State, to Mr. Newberry, No. 355, July 18, 1892, MS.
Inst. 'Turkey, V. 307.
4. CiTIZBNSHIP THROUGH PARENT'S NATURALIZATION.
§ 506.
The applicant, when claiming citizenship through a parent's natu-
ralization, " must state that he or she is the son or daughter, as the
case may be, of the person described in the certificate of naturalization,
which nuist be submitted for inspection, and must set forth the facts
of emigration, naturalization, and residence, as required in the rule
governing the application of a naturalized citizen."
Rules Governing the Granting and Issuance of Passports in the United
States, Sept. 12, 1903.
AVhere a person born abroad of an alien father claims citizenship
through the subsequent naturalization of his father, it may be neces-
sary for him to produce '" evidence that he himself resided in the
United States at some time during minority," since " naturalization
of the parent here does not confer citizenship on his minor children
born abroad before that event and continuing to reside and attain
their majority abroad."
Mr. Foster, Sec. of State, to Mr. Lincoln, niin. at London, Aug. 10, 1892,
For. Rel. 1892. 2;i3.
See, also, Mr. Bayard. Sec. of State, to Mr. Thompson, niin. to Hayti, No.
26, July 0, 1888, For. Kel. 1888. 11. 1422.
" It not infrequently happens that the son of a naturalized citizen of
the United States secures naturalization in his own right because of
the difficulty of proving his father's naturalization."
Mr. Sherman, Sec. of State, to :Mr. Storei-, min. to Belgium. Sept. 18, 1897.
For. Kel. 1897. 27.
Persons claiming citizenship through the naturalization of their
parents are required, when applying to the Department of State
§507.] APPLICATIONS FOR PASSPORTS. 911
for passports, to lorocliice the parent's certificate of naturalization.
Paragraph 154 of the Instructions to Diplomatic Officers of the
United States authorizes diplomatic agents abroad to accept as
evidence of citizenship a passport issued by the Department of
State, if presented before its expiration. It is not in any case " in-
tended that secondary j^roof may not on rare occasions be accepted
in lieu of the naturalization certificate. The question is fully dis-
cussed in the Department's publication. The American Passport,
page 155 et seq. In Mr. Baj^ard's instruction to Mr. Vignaud, June
13, 1888, quoted oii page IGl, the general nature of the secondary
proof acceptable is set forth. In a few words, it must establish
that the father was actually naturalized before the son reached his
majority.
" It may be added that the existing requirement of production of
the naturalization certificate has prevailed since 1878; and experi-
ence has shown it to be necessary in order to prevent the Department
or its agents from granting passports to those who are not legally
citizens of the United States."
Mr. Hay, Sec. of State, to yiv. Cboate, amb. to England, Feb. 5, 1901,
For. Kel. ]!X)1, 207.
5. Evidence of Previox'S Passport.
§ 507.
" It is not thought . . . that, under ordinary circumstances, if
the bona fides of the original passport be in no ways impeached,
it is necessary that the papers of naturalization, or a new affidavit
of allegiance, should be jiroduced in order to obtain a new passport.
The case may be likened to a i)roceeding for the revival of a judg-
ment, on which the original cause of action need not be proved."
Mr. Bayard, Sec. of State, to Mr. I.ee, charge, No. 11, Oct. 2, 1885, MS.
Inst. Aust.-IIiuig. III. 303.
The foi'egohig statement referred to an a]>iilication made to the American
legation in Vienna for a passport, in i)lace of an expired passport
issued four years ])reviously by the Department of State.
In 1888 a person claiming to be a naturalized citizen of the United
States applied to the American legation in Paris for a passport,
presenting as evidence of citizenship a passport issued by the Dej^art-
ment of State in 1871). The legation having declined to issue a jiass-
port, he addressed the Department of State, which replied :
'' By a regulation of this Department, in force for many years,
passports are good only for two years, on or before the ex])iration
of which period they are required to be renewed. This regulation
has the double effect of enabling tlie Government to keep trace of
912 PASSPORTS. [§507.
those claiming: its protection abroad and of rc(juiring from them a
small contribution to the expenses of the Government whose pro-
tection they enjoy.
"■ It is for these reasons, and Iwcause of the re^^ulation fixing tno
years as the period of vitality of a passport, that diplomatic officers
have contemporaneously been forbidden to accept a passport more
than two years old as sufficient evidence of citizenship to warrant
the issuance of a new passport. This rule applies to native and natu-
ralized citizens of the United States impartially, and where a citizen
of the United States presents himself to a legation for the renewal
of a passport more than two years old he is required, whether a native
or naturalized citizen, to present the same sort of evidence of citizen-
ship as that upon which his passport was originally obtained."
Mr. Adee, Second Asst. Sec. of State, to Mr. Twyeffort, July l.S, 1888.
For. Rel. 1888, I. 551.
" ' Does a passport less than two years' old entitle its holder to a
new passport, even if he be unable to make definite and satisfactory
declaration under any or all of the heads in the prescribed form of
l)assport applications? '
"A person presenting an application for a passport should fully
comply with all of the rules and regulations in force at the time with
respect thereto, independently of any previous passport which may
liaA'e been issued to him. Such a previous passport, although less
than two years old, is simply of value as pAma facie evidence of the
applicant's citizenship. If it appears to have been issued upon an
identical state Of facts, it might also to a certain extent afford a
precedent, though not necessarily controlling. Since a passport is
good for two years, an applicant for a new one within that period
should satisfactorily explain why the new passport is sought."
]Mr. Blaine. Sec. of State, to Mr. Ryan, uiin. to Mexico, April 9, 1892,
MS. Inst. Mex. XXIII. 203.
Where a person applied to the legation of the United States at
St. Petersburg as a naturalized citizen and explained his failure to
produce his certificate of naturalization by stating that it had been
stolen, it seems to have been intimated by the Department of State
that the issuance to him by the legation of a passport ten years pre-
viously might be treated as evidence that satisfactory proof of the
fact of naturalization was then made, it being alleged that the loss of
the certificate occurred prior to that time. It does not appear, how-
ever, that the second application was ultimately granted.
For. Rel. 189.3, 537.
A passport was issued by the United States legation at St. Peters-
burg to one Hugo Sundel in 1882. It was granted on the sole evi-
dence of a passport issued to him by the* Department of State,
§ 507.] APPLICATIONS FOR PASSPORTS. 918
Sept. 7, 1876, on his sworn statement that he was a native of the
United States. In 1896, being under arrest at Moscow, he declared
to the United States consul that he was born in Russian Poland,
where he was known as Hugo Sundolovitch, and that between 1869
and 1872 he emigrated without permission to the United States,
where he was naturalized. Under the circumstances, no evidence of
his naturalization having ever been produced, it was held that he
must, in the absence of such evidence, " be deemed a Russian subject."
Mr. Roekhill, acting Sec. of State, to Mr. Breckinridge, luin. to Russia,
Sept. 19, 189G, For. Rel. 1896, 522.
" It is usually expected that a person claiming citizenship through
the naturalization of parents should, on each occasion of applying for
a passport, produce the evidence by way of corroboration. The pos-
session of a Department passport is, however, prima facie evidence
of the applicant's having previously produced to the Department the
proof of the parents' naturalization; and inability to produce that
evidence at each subsequent application for a passport need not
occasion refusal to grant one unless the circumstances of the case
should raise such reasonable doubt in the mind of the envoy as to
cause him to make further inquiry of the Department."
Mr. Hay, Sec. of State, to Mr. Storer, min. to Belgium, Feb. 4, 1899, For.
Rel. 1899, 84, 85.
^ Paragraphs Nos. 153 and 154 of the Instructions to the Diplo-
matic Officers of the United States and the same numbered para-
graphs of the Regulations Prescribed for the Use of the Consular
Service of the United States provide that when a person applies to a
diplomatic or consular officer for a new passport his old passport
may be accepted in lieu of his naturalization certificate, if it was
issued at the mission or consulate to which the new application is
made, and that such an old passport, if issued by the Department of
State, may be so accepted for the same jjurpose if the application
is made before the old passport has expired — that is, within two
years of the date of its issuance.
" There api)earing to be no good reason why an old passport, with-
out regard to the time or place of its issuance, should not be ac-
cepted as evidence prima facie that the person it describes properly
established his citizenship when the old passport was granted him,
and as our citizens who fail to carry with them in their travels the
proof of citizenship Avhich they once produced to this Department
or its agents abroad sometimes experience great inconvenience
because they are refused passports under the regulations cited above,
it has been deemed desirable to remedy the difficulty by rescinding
these regidations and adding to the paragraph Avhich precedes them
H. Doc. 551— vol 3 58
914 PASSPORTS. [§ 507.
(No. 152) a clause permitting, in an application for a new passport,
the acceptance of the old passport as evidence prima facie that the
applicant established • his citizenship when he made the application
upon which the old passport was granted.
" To this end an Executive order was issued on the 31st ultimo, a
copy of which is appended."
Mr. Hill, Act. Sec. of State, to U. S. Dip. and Consular officers, circular,
Feb. 8, 1901, MS. Circulars, V.
The Executive oi'der, signed by President McKinley, Jan. 31, 1901, reads
as follows :
" Paragraphs Nos. 153 and 154 of the Instructions to the Diplomatic Offi-
cers of the United States, prescribed January 4, 1897, and paragraphs
Nos. 153 and 154 of the Regulations I'rescribed for the Use of the
Consular Service of the United States, December 31, 1890, are hereby
repealed, and it is ordered that paragraph No. 152 of the aforesaid
instructions and No. 152 of the aforesaid regulations be so amended
as to read :
" 152. Expiration of passport. — A passport expires two years after the
date of its issuance, and cannot be removed. A new passport may be
issued upon a new application in accordance with the provisions of
paragi-aph 151, but an old passport will be accepted as prima facie
evidence that the citizenship of the applicant was properly proved
when the old passport was granted, and a naturalized citizen need
not, therefore, be required to produce the naturalization certificate
through which he acquired his citizenship again.. The old passi)()rt
should be retained and sent to the Department of State with the
application in making the report required in paragraph 163. If
there is any doubt, however, surrounding the case, the applicant
should be required to produce the same evidence that would be re-
quired of him if lie were making his first application for a passix)rt."
(MS. Circulars, V.)
See correspondence in For. Rel. 1901, 207.
A passport issued by the Department of State should always be
accepted by a legation abroad as prima facie proof of the citizenship
of the person to whom it was issued, should he apply to such legation
for a new passport.
Mr. Hay. Sec. of State, to Mr. Hardy, min. to Switzerland, Apr. 23, 1901,
For. Rel. 1901, 508.
In an exceptional case, where the certificate of naturalization was not
produced, and the passport, issued by the Department of State, was
alleged to have been taken and lost by the Turkish police, a passport
was issued by the legation at Constantinople. The Department of
State was " disposed to conclude that this was an exceptional case,
where the issuance of the passjKirt without the i)rimary ]>roof of
citizenship was permissible ; but in every case of this kind the lega-
tion should affix to the application an explanatory statement justify-
ing the ai)parent departure from those rules which experience has
shown must be carefully observed to protect this Government from
imposition." (Mr. Hay, Sec. of State, to Mr. Griscom, charge at
Constantinople, No. 350, March 0, 1901, MS. Inst. Turkey, VII. 521.)
§ 508.] APPLICATIONS FOR PASSPORTS. 915
6. Oath of Allegiance.
§ 508.
"A passport cannot be issued to any citizen, claiming the protection
of this Government, who is unwilling, at a time of peril like the pres-
ent, to make known his loyalty by taking the oath of allfegiance."
Mr. Seward, Sec. of State, to Mr. Ilillin, Aug. 23, 18G1, 54 MS. Dom. Let.
527.
" No oath of allegiance had previously beeu required of persons applying
for passports.
" It has been deemed proper to require of all persons, who may,
hereafter apply for passports, that they shall take the oath of alle-
giance, as prescribed by law, a copy of which is herewith enclosed,
and the regulation will be strictly enforced in all cases. Your course
in declining to receive applications of persons who sjanpathised with
those in insurrection against the Government, meets the approval
of this Department."
Mr. F. W. Seward, Assist. Sec. of State, to Mr. Corey, notary public,
New York, Aug. 2G, 18G1, 54 MS. Doui. Let. 545.
The law here referred to is the act of August (>, 18(51, 12 Stat. .326.
As is elsewhere shown, a I'egulation adopted in 18t>l required " the loyalty
of all Americans applying for passports or vises to be tested under
oath." (Infra, § 5.32.)
The form of oath of allegiance was changed by the act of May 13, 1884,
23 Stat. 21.
" Mr. E 's refusal to take the prescribed oath of allegiance is
. . . of itself a sufficient ground for declining to issue a passport
to him. He may, in fact, be a citizen of the United States and that
fact appear by competent proof, but his right to protection as a
citizen abroad will depend on his purpose to fulfil the obligations of
good citizenship, whereof allegiance is the highest. This requisite
cannot be waived in any case, native born or otherwise. In the case
of an applicant born abroad, as Mr. E was, it is especially im-
perative, particularly if he were born prior to his father's naturali-
zation, for in such a case the son is not constrained by his father's
act to be a citizen. The father's naturalization is no proof of the
son's loyalty; he must evidence that by his own acts. In this rela-
tion it may be remarked that Mr. E could not have served [as
he said he had done] in the Army of the United States without taking
the oath of allegiance. If he has done so once, it is not easy to
fathom his present scruples."
Mr. P^oster, Sec. of State, to Mr. Newberry. No. 357, .July 21. 1802, MS.
Inst. Turkey, V. 309.
916 PASSPORTS. [§ 508.
" This Government has no disposition to deny any loyal citiz<m
traveling or sojourning abroad in lawful pursuit of his business or
pleasure the protection of a passport ; nor does it desire to place upon
him any requirements of application for a passport repugnant to his
conscience or the free exercise of his religious belief. But it is mani-
festly proper- that before issuing a passport the government should
exact from the person who applies for it a promise that he will on
his part support and defend the government whose protection he
solicits.
" The oath of allegiance is, therefore, required from all persons
before they are granted passports, and to this regulation the Depart-
ment adheres; nor will it accept an oath which contains any altera-
tion or addition tending to invalidate it. The words added by Mr.
D amount to a protest against the Constitution of the United
States, and it is understood that such is the intention of their mean-
ing. The Department cannot accept this oath, and so far declines
to recede from the position set forth in the letter of September 30.
" It is not doubted, however, that Mr. D is a citizen of the
United States, and the antecedents of the sect to which he belongs
have tended to demonstrate the loyalty of its members to the Govern-
ment of the United States. In order, therefore, that no hardships
may be visited upon any loyal citizens because they follow the dic-
tates of conscience, the Department is willing to reconsider so much
of the letter of September 30 as refuses to accept any modification
of the form of the oath as now prescribed, and Mr. D may sub-
mit another application, containing the oath of allegiance in the form
now used, except that the word ' Government ' may be inserted for
the word ' Constitution,' and the statement added ^ that I acknowl-
edge allegiance to no other government,' so that the oath shall read:
" ' Further, I do solemnly swear that I w ill support and defend the
Government of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same;
that I owe allegiance to no other government, and that I take this
obligation freely, without any mental reservation or purpose of
evasion. So help me God.' "
Mr. Day, Assist. Sec. of State, to Mr. Morrison, Octolier 7, 1897, 221 MS,
Dom. Let. 362.
The usual oath reads : " Further, I do solemnly swear that I will support
and defend the Constitution of the United States against all eiuv
mies, foreign and domestic; that I will bear true faith and allegiance
to the same ; and that I take this obligation freely," etc., as above.
§§509,510.] APPLICATIONS FOE PASSPORTS. 917
7. Name of Applicant.
§ 509.
" This Department cannot issue a passport containing a name dif-
ferent from that set out in the naturalization certificate upon which
the application is based.
" It is suggested that the proper procedure would be to apply to
the court for a correction of the certificate of naturalization."
Mr. Greshani, Sec. of State, to Mr. Raine, June 4, 1804, 197 MS. Dom.
Let. 245.
A similar ruling of the Department of State of Aug. 20, 1872, is given in
Hunt's Am. Passport, 154.
A person naturalized as Juda Osiel asked for a passport as Leon
Osiel, saying that he had changed his name since his naturalization.
The Department said that if he would produce proper affidavits as to
the change of his name and establishing the identity of Juda Osiel
with Leon Osiel, the Department would issue a passport to " Juda
Osiel, commonly known as I^on Osiel," but it could not omit the
name by which he was naturalized.
Mr. Wharton, Act. Sec. of State, to Mr. Osiel, July 8, 1889, 173 MS. Dom.
Let. 547.
" The Department has received your letter of October 5, stating
that you came to this country when nine years of age, that your father
was naturalized as an American citizen, and that he had changed his
name from Redicker to Ritter. . . . The Department will issue
a passport in your favor upon receiving a satisfactory application
accompanied by the proof of your citizenship as indicated by the en-
closed form and niles. It will be necessary, however, that you should
also submit competent proof that your father legally effected a change
of his name. This proof should be a duly certified copy of the legal
record of the change. If such a record cannot be produced, after
that fact shall have been established, the Department will consider
secondary evidence coming from credible witnesses having personal
knowledge of the facts as set forth by you."
Mr. Day, Assist. Sec. of State, to Mr. Ritter. October 0, 1897. 221 MS.
Dom. Let. 348.
See a similar ruling of April 10, 1892, in Hunt's Am. Passport, 1.54.
8. Titles, Personal or Official.
§510.
Neither official nor professional titles, nor statements of the holder's
business or occupation, are inserted in the passport granted by the
Government of the United States.
Rules Governing the Granting and Issuing of Passports in the United
States, Sept. 12, 1903; Hunt, Am. Passport, 216.
918 PASSPORTS. [§ 511.
As the natiiralizalion laws rcMjiiiiv renunciation of any title or order
of nobility, a passport will not be issued to a naturalized citizen under
such a title or designation, nor will a passport be issued on an appli-
cation containing it.
Mr. Il.'iy, Sec. of State, to ;Mr. Porter, anib. to Franco, No. 745, March 15,
IIKX), MS. Inst. France, XXIV. 273, in relation to the case of Baron
Seilliere, supra, § 401 ; infra, § 513.
0. Fees.
§511.
" Passports arc granted by the Department gratis."
Mr. Dickins, Act. Sec. of State, to Mr. Ashley, Oct. 20, 18,30, 28 MS. Doin.
Let. 444.
" The postage on letters to the Department relative to i^assports should
be prepaid, and that accruing on the transmission of passports must
also he defraj'ed by the individuals for whom they are Intended."
(Mr. Trist, Act. Sec. of State, to Mr. Gifford, Oct. 1, 1845, 35 MS.
Dom. Let. 280.)
The act of Aug. 18, 1850, while providing, in accordance with the previous
practice, that no fee should be charged for passiwrts issued in the
United States, permitted a charge of not more than a dollar on those
issued abroad. ( 1 1 Stat. 00. )
See Mr. Evarts, Sec. of State, to Mr. Christiancy, No. 92, July 22, 1880,
MS. Inst. Peru, XVI. 450.
By the internal revenue act of July 1, 18G2, 12 Stat. 472, a charge
of three dollars was prescribed for every passport issued in the United
States or abroad. In giving notice of this enactment, Mr. Seward
stated that so much of the Personal Instructions to Ministers as
directed the issuance of passports by them " free of charge," and
so much of the Consular Regulations as authorized a fee of a dollar
for a passport issued by a consul general or consul, w^as annidled.
Mr. Seward, Sec. of State, to U. S. min. and consuls, circular. No. 15.
July 5, 1802, MS. Circulars, I. 201.
" The consular fee for issuing a passport is one dollar, paj^able in
coin, and by act of Congress of June 30, 1SG4, an additional sum of
$5.00 is imposed as an ' internal revenue ' fee, which, in the opinion
of this Department, is payable in the currency of the United States
in coterminous British provinces."
Mr. Seward, Sec. of State, to Mr. Fessendon, Sec. of Treas., Jan. 18, 1805,
07 MS. Dom. Lot. 575.
By sec. 8 of the act of July 14, 1870, 10 Stat. 250, the tax of $5.00
on each passport was abolished on and after Oct. 1, 1870; but consuls
continued " to collect the fee of one dollar for viseing a passport."
Mr. J. C. B. Davis, Act. Sec. of State, to IT. S. mins. & consuls, circular,
Aug. 27, 1870, MS. Circulars, I. 418.
■-§512.] DISCRETION AS TO ISSUANCE. 919
" In pursuance of the authority conferred upon me by the IGth
section of the act entitled 'An act to reguhite the diplomatic and
consular systems of the United States,' approved August 18, 1856,
I do hereby prescribe, in addition to the fees heretofore prescribed,
that the sum of five dollars shall be charged for the granting or issu-
ing of each passport granted or issued in anj'^ foreign country, by
any diplomatic or consular officer of the United States."
President Grant, Executive order, Oct. 13. 1871, MS. Circulars, I. 448.
A passport can not be issued free of charge. (Mr. Fish, Sec. of State,
to Mr. Rublee, No. 210, April 11, 187G, MS. Inst. Switzerland, I. 382.)
" By act of Congress, approved June 20, 1874, a fee of $5.00 is
required to be collected for every citizen's passport. ... A pass-
port is good for two years from its date and no longer. A new one
may be obtained by . . , paying the fee of five dollars," etc.
Instructions in regard to passsports. Department of State. May 1, 1886,
Wharton's Int. Law Dig. II. 470. As to this citation see comment
supra, § 503. ■
By the act of Congress of March 23, 1888, a fee of one dollar is
exacted for every citizen's passport.
25 Stat. 45.
Under Executive order, the same fee is charged abroad.
The number of " travelling passports " called for " by xVmericans
in Japan in 1891-1892 was 1,()45; and the expense of messenger and
postal service involved was $97.39. To meet these outlays you sug-
gest the imposition of fees. In reply to your inquiry, I have to refer
you to the provisions of sec. 1745 of the Revised Statutes of the
United States, by which you will see that an imposition of foes, such
as you suggest, would require the special authorization of the Presi-
dent. It does not appear to me that such interposition is at present
necessary."
Mr. Foster, Sec. of State, to Mr. Coombs, No. 22, Aug. 17, 1892, MS. Inst.
Japan, IV. G2.
V. OROijyns OF refusal.
1. Discretion as to Issuance.
§ 512.
Passports " may be refused even to citizens of the United States,
who have so far expatriated themselves as to have become bound in
allegiance to other nations, or who in any other manner have for-
feited the protection of their own."
Mr. A€lams. Sec. of State, to Mr. Nelson, niin. to Spain. No. 2, April 28,
1823, MS. Inst. U. States ministers, IX. 175.
920 PASSPORTS. [§ 512.
" Insurrectionary assemblages avow the fact that they are sending
agents to Europe on errands hostile and injurious to the peace of the
country and dangerous to the Union. Such agents ought not to be
allowed to pervert the authority of the Government so as to sanction
their proceedings. You are therefore strictly enjoined to grant no
passport whatever to any person of whose loyalty to the Union you
have not the most complete and satisfactory evidence. You will
further immediately make report to this Department in every in-
stance of the passport granted, and the evidences on which the grant
is made."
Mr. Seward, Sec. of State, circular. May G, 1861, MS. Circulars, I. 179.
" I am of the opinion that any citizen of the United States has a
right to be furnished with such evidence of citizenship, and of his
right to the protection of his Government, as has been adopted for
that purpose, upon complying with the usual regulations, and that
the necessity therefor is a matter for the judgment of the party him-
self. A passport duly issued is the usual evidence of citizenship in
a foreign land.
" It would therefore seem that the desire of a naturalized citizen to
be supplied with the usual evidence of his nationality, in case he be
called upon for military service, is natural and entirely allowable."
Mr. Fish, Sec. of State, to Mr. Davis, Jan. 14, 1875, MS. Inst. Germ. XVI. 6.
" The issuing of passports is at the discretion of the Secretary
(Rev. Stat., § 4075), and they will not be granted to persons engaged
in violation of the laws of the United States."
Mr. Bayard, Sec. of State, general instructions in regard to passports.
May 1, 188G, Wharton's Int. Law Dig. II. 469, 471. As to this cita-
tion, see comment supra, § 503.
" Determination of the fact of citizenship is not an executive func-
tion. AVhat is reserved to the executive is the use of its proper
discretion as to the protection of a person abroad when the facts
prima facie establish his citizenship by origin or naturalization, and
the issuance of a passport is part of the exercise of that discretion."
Mr. Sherman, Sec. of State, to Mr. Storer, min. to Belgium, Nov. 8, 1897,
For. Rel. 1897, 29.
" The Secretary of State has the right in his discretion to refuse to
issue a passport, and will exercise this right towards anyone who he
has reason to believe desires a passport to further an unlawful or
improper purpose."
Rules Governing the Granting and Issuing of Passjwrts in the Unitetl
States, Sept. 12, 190.^
See, to the same effect, Mr. Hill, Assist. Sec. of State, to Mr. Clarke, Nov.
4, 1898, For. Rel. 1899, 88.
§ 512.] DISCRETION AS TO ISSUANCE. 921
"As a general statement, passports are issued to all law-abiding
American citizens who apply for them and comply with the rules
prescribed ; but it is not obligatory to issue one to every citizen who
desires it, and the rejection of an application is not to l)e construed
as per se a denial b}^ this Department or its agents of the American
citizenship of a person Avhose application is so rejected."
Mr. Hay, Sec. of State, to dip. & cous. officers, circular, Marcli 27,
1899, For. Rel. 1902, 1.
Sees» 4075 and 407G, Rev. Stat., which confer on the Secretary of
State authority to issue passports to citizens of the United States,
are not in terms mandatory, but authorize the exercise of discretion
in the discharge of the function so conferred,
Knox, At.-Gen., Aug. 20, 1901, 2.3 Op. 509, citing tlie opinion of Hoar,
At.-Gen., .June 12, 1809, 13 Op. 89, 92, and distinguishing tlie opinion
of Taft, At.-Gen., 15 Op. 117.
Attorney-General Knox, in the course of his opinion, says : " Circum-
stances are conceivable which would make it most inexpedient for
the public interests for this country to grant a passport to a citizen
of the United States. For example, if one of the criminal class, an
avowed anarchist for instance, were to make such application, the
public interests might require that his application be denied."
(23 Op. 511.)
"As your archives will show, and as you are doubtless aware, in
August, 1879, this Government sent circular instructions to all our
ministers abroad to request all proper assistance from the Govern-
ments to which they were accredited in suppressing the proselyting
for the Mormon church. In the face of such a circular it would
seem to be inconsistent to issue passports to persons who are undoubt-
edly Mormon emissaries, even if they are American citizens. The
law as to issuing passports is permissory, not obligatory, and the
decision is left with the Secretary of State, under section 4075 of
the Revised Statutes. Inasmuch as polygamy is a statutory crune,
proselytism wdth intent that the emigrants should live here in open
violation of our laws would seem to be sufficient warrant for refus-
ing a passport. But it would be well to have the fact of the appli-
cant for the passport being a Mormon emissary, and actively engaged
in proselyting, conclusively proved to your satisfaction by some kind
of evidence which can be put on the files of your legation and this
Department. This might be obtained, perhaps, from the police
authorities or the public press in case any meetings were held for
the object of inciting to emigration. It is noticed that in your
report of the case you did not give the api)licant's name. It would
be as well to obtain in all such cases of refusal of passport applica-
tion, a detailed statement from the applicant, duly signed and sworn
922 PASSPORTS. [§ 512.
to, in support of his application, a copy of which can then be for-
warded to this Department for its action and to refer to in case the
application is renewed here."
Mr. Bayard, Sec. of State, to Mr. Magee, Nov. 3, 1885, MS. Inst.
Sweden, XV. 125.
See, to the same efifect, Mr. Bayard, Sec. of State, to Mr. Winchester,
min. to Switz., No. 52, June 9, 1880, For. Rel. 1886, 847.
In a later instruction to Mr. Winchester, No. 59, July 20, 188G, Mr. Bayard
said: "My previous instruction is not to be understood as obliging
you to issue a passport in any case in which you have strong and
reasonable suspicions that the person applying for the same is a
Mormon emissary." (For. Rel. 188G, 851, 852.)
For the text of the circular of 1879, see For. Rel. 1879, 11.
It IS to be observed that by reason of the renunciation by the Mormon
church of the piTictice of polygamy, the position of the Government
of the United States toward the Mormons is now changed. See
infra, § 550. The previous instructions are, however, highly impor-
tant as illustrating the application of the principle of discretion.
" A passport, which is the primary form and evidence of pro-
tection given to a citizen by his government, has frequently been
denied to persons residing in a foreign land, in contumacy or viola-
tion of the laws of the United States. Were Winslow [Ezra D.,
who, when discharged on habeas corpus in England, in 1876, fled,
apparently to the Argentine Republic, and thus escaped extradition]
merely an applicant for a passport, the fact that he is a contuma-
cious fugitive from the justice of Massachusetts would be a sufficient
reason for denying to him that evidence of the reciprocal duty of
the law-abiding citizen and the obligation of his government."
Mr. Bayard, Sec. of State, to Mr. Hanna, min. to Arg. Rep., No. 22,
June 25, 1880, MS. Inst. Arg. Rep. XVI. 385.
In June, 1899, two women in Port Arthur wrote to Mr. Fowler,
United States consul at Chefoo, requesting him to send them pass-
ports and stating that they were " tourists, stay in Port Arthur
indefinite." Mr. Fowler replied that in order to secure a passport
the applicant must appear in person. Subsequently, on learning
that the applicants were disreputable characters who desired pass-
ports in order to remain in Port Arthur, Mr. Fowler sought instruc-
tions from the United States legation at Pekin. The legation replied
that while, " as a general rule, it Avould hardly do to make moral
character a basis for the issuance of passports," yet, in Eastern
countries where certificates of citizenship stand for so much, it would
not furnish passports to persons of the class to which the applicants
belonged, and that when the facts were clear the consul might refuse
to forward the application as well as to give travel certificates.
§ 512.J DISCRETION AS TO ISSUANCE. 923
From this view the Department of State dissented, saying that,
while the issuance of passports was discretionary, the conduct or
deportment of applicants had not been made the subject of regula-
tion; that their acts, if wrongful, were matters to be dealt with under
the law of the place of sojourn ; that a citizen of the United States,
even when accused of crime in a foreign country, would be entitled
in case of need to such certification of his status as a passport affords;
that the cases, such as those of the emissaries of polygamous Mor-
mons, in which passports were directed to be refused, were rare and
related to persons whose conduct in another country was violative
of the laws of the United States; that, while the Federal statutes
took cognizance of questions of morality in the case of aliens immi-
grating or applying for citizenship, they did not reach the case of
citizens returning to the United States; and that a passport should
not be withheld from a bona fide citizen, unless mider authority of
law or of instructions and regulations made pursuant to law. The
legation was therefore instructed to issue the desired passports in
case the persons in question should make a proper application for
them either through the consul or directly.
Mr. Conger, min. to China, to Mr. Fowler, consul at Chefoo, ,TuIy 3, 1899;
Mr. Adee, Act. Sec. of State, to Mr. Conger, uiin. to China, Aug. 24,
1899 : For. Ilel. 1899, 185, 186.
See, contra, Mr. Cridler, Third Assist. Sec. of State, to Mr. Fowler,
No. 100, Feh. 12, 1900, withdrawn by Department's No. 112, July 9.
1900, as stated in Mr. Hay, See. of State, to Mr. Conger, No. 299,
Nov. 22, 1900, MS. Inst. China, VI. 132.
In the case of Francis W. Putnam, a native citizen of the United
States, residing in Colombia, who had served a sentence for felony on
conviction by a Colombian court, it was held that a foreign convic-
tion of crime Avas not a bar to an application by the party convicted
for a passport, " because foreign convictions of crime are not to be
regarded as extraterritorial in their operation."
Mr. Bayard, Sec. of State, to Mr. Walker, charge, March 29, 1888, For. Rel.
1888, I. 420.
It may he observed that this technical rule with regard to the effect of
foreign convictions of crime has been the subject of variant judicial
decisions with reference to the credibility of witnesses. The grant-
ing of i)ass])()rts is, as has been seen, e.\|)ressly made, by the statutes,
a matter of discretion. It is to l)e observed that in Putnam's case
the legation, although instructed as above, was not directed to issue
a passport, but was directed to incjuire whether the applicant had not
by continuous foreigu resideuce lost his claim to a passport.
924 PASSPORTS. [§ 513.
2. Renunciation of Allegiance.
§ 513.
I>r. Alberto Lacaj^o, a native of Nicaragua, born in 1857, came to
the United States in 1872, and was naturalized in 1879. In the same
year he obtained a passport from the Department of State and went
to Nicaragua, where he resumed his residence and entered into busi-
ness as a druggist. He afterwards paid several visits to the United
States, and in 1886 obtained a new passport from the Department of
State. His last visit to the United States was in 1891. In January,
1893, he applied to the United States legation at Managua for a new
passport. He filled up the printed form of application only partly,
l)eing unable to state that he was " domiciled in the United States "
and had a " permanent residence therein." He informed the legation
that he was residing with his parents in Nicaragua and intended to
remain with them as long as they lived, although it Avas his purpose
after their death to go to the United States and reside there perma-
nently. It also appeared that during three months in 1890 he filled
the office of alcalde of Granada, in Nicaragua. He stated that he
was elected to this office " against his will," His application was
referred to the Department of State. It appeared that by the con-
stitution of Nicaragua every public official, on assuming the duties
of his office, is required to take an oath " to obey and cause to be
obeyed the constitution and laws;" that an alcalde, being a pub-
lic official, takes that oath ; that when the office of prefect of depart-
ment suddenly becomes vacant the first alcalde assumes the duties of
that office; that alcaldes are members of the municipal corporation,
and that by the laws of Nicaragua " those who are not citizens can-
not be municipal officers." The Department of State held: "The
nature of the oath taken by Dr. Lacayo, when accepting the office of
alcalde of Granada, appears to be conclusive against the issuance of a
passport."
Mr. Gresham, Sec. of State, to Mr. Baker, min. to Nicaragua, May 17,
1893, For. Rel. 1893, 185. See, also, itl. ISO, 18;J, 184.
" I have to acknowledge the receipt of your despatch No. 633, of the
21st ultimo, relative to the application of Baron Seilliere for a pass-
port, and to inform you in reply that Marie Nicolas Raymond Seil-
ilere received j)assport No. 33952, November 25, 1891; that he was
born in France, naturalized as an American citizen before the com-
mon pleas court of New York, November 23, 1891, immediately after
which he returned to his native country,
" The question for the Department to decide is as to Mr. Seilliere's
bona fides in renouncing his title of nobility and acquiring American
citizenship, and further as to the fixity of his purpose to make this
§513.] RENUNCIATION OF ALLEGIANCE. 925
country his home and here fulfil the duties of good citizenship. The
circumstance of his naturalization, issuance of a passport and return
to France having followed in rapid succession, coupled with the loss
of the documentary evidence of his citizenship, may be weighed by
you in connection with such evidence as he may adduce of continued
assertion of his American status during the nine years he has resided
in France. As Mr. Seilliere's application to you seems to have been
made under the style of ' Baron,' it may be well for you to remind
him that in becoming a citizen of the United States and as an indi-
spensable condition of acquiring American nationality he had to re-
nounce his nobiliary title, in conformity with the fourth provision of
section 2165, Revised Statutes, which reads :
"Fourth. In case the alien applying to be admitted to citizenship has borne
any hereditary title, or been of any of the orders of nobility in the kingdom or
btate from which he came, he shall, in addition to the above requisites, make an
express renunciation of his title or order of nobility in the court to which his
application is made, and his renunciation shall be recorded in the court.
" You should inform him that this Government recognizes the
entire liberty of a naturalized alien to resume his original status, and
that the intention to resume it may be inferred from the individual's
voluntary acts, such as withdrawal from the jurisdiction of the
United States, resumption for many years of domicil in the land of
origin, and renewed use of any hereditary title or order of nobility
he may have formerly possessed."
Mr. Hay, Sec. of State, to Mr. Porter, amb. to France, No. 745, March 15,
1900, MS. Inst. France XXIV. 273. See supra, pp. 850-853.
Frederick Knochtenhofer was born in Switzerland in 1873, came
to the United States in 1893, and was naturalized in September 1899.
A month afterwards he returned to his native land and took up his
residence with his father. On applying for a passport as a citizen
of the United States, he admitted ( 1 ) that he had not renounced his
Swiss citizenship and did not intend to do so, and (2) that he
intended to remain with his father and help him work the farm.
The legation at Berne declined to issue a passport, and its action was
approved.
Mr. Hay. Sec. of State, to Mr. Leishman, min. to Switzerland, Dec. 12,
18J)9, For. Uel. 18t>9, 704.
Where a native of Turkey, naturalized in the United States, re-
entered his native land as a Turk, and accepted a teskereh as a Turk-
ish subject, and on this ground the United States consul-general at
Constantinople refused to vise the passport which he had before
leaving America obtained from the Department of State, the De-
partment said : "The circumstances of his return to Turkey l)ring
926 PASSPORTS. [§ 514.
his case within the rule laid down by Mr. Fish (Consular Regula-
tions, 1874, section 110) : ' For a naturalized citizen may . . .
by concealing . . . the fact of his naturalization and passing him-
self as a citizen or subject of his native country until occasion may
make it his interest to ask the intervention of the country of his
adoption ... so far resume his original allegiance as to absolve
the Government of his adopted country from the obligation to pro-
tect him as a citizen while he remains in his native land.'
" The Department has on several occasions held that a person
naturalized here, who returns to the country of origin and passes
himself as a citizen or subject of that country, has by his own act
testified his renunciation of his acquired status, as he has a perfect
right to do."
Mr. Adee, Second Assist. Sec. of State, to Mr. Dickinson, No. 29, Sept. 3,
1898, 1G3 MS. Inst. Consuls, 508.
The United States legation at Constantinople having reported that
many naturalized citizens of Turkish origin returned to Turkey
with Ottoman passports, and having inquired whether such persons
should be regarded as having abandoned their American citizenship
and as no longer entitled to American passports, the Department of
State replied " that a person receiving a Turkish passport is not en-
titled to receive a passport from the United States;" and that the
legation " should refuse passports to all persons of Turkish origin
who do not present an American passport or authenticated naturali-
zation papers," and " should regard the possession of a Turkish pass-
port as sufficient evidence that the holder should not receive one from
the United States."
Mr. Hay, Sec. of State, to Mr. Griscom, charge at Constantinople, Jan. 11,
1900, For. Rel. 1900, 937.
A passport will be refused to a person applying therefor while
abroad when the circumstances show a purpose to reside indefinitely
in a foreign country or fail to show a reasonable intention to return to
the United States. It may happen that a person, to whom a passport
is so refused, may, upon return to the United States, establish his
right thereto in the absence of any judicial impugnment of his status.
Mr. Rockhill, Acting Sec. of State, to Mr. Terrell, min. to Turkey, April
27, 1897, For. Rel. 1897, 584.
3. Effect of Foreign Domicil, ob Residence.
§ 514.
" In all cases where indubitable evidence of citizenship, either na-
tive or naturalized, is presented to the legation by persons tempora-
rily domiciled in the countries to which you are accredited, or in
§514.] GEOUNDS FOR REFUSAL. 927
transit through them, either a certificate of citizenship or a passport,
as the circumstances may require, may be furnished to them by the
legation. . . .
" Instances have occurred, and it is not improbable that they may
again be presented, in which citizens of the United States who had
resided abroad for so long a time, and had formed connections, either
of a commercial or family nature, so intimate and binding as to ren-
der them, as far as they could be without a formal renunciation of
their allegiance to the United States, citizens or subjects of the coun-
try in which they have been domiciled, have sought the protection of
this Government, and claimed the privileges of its citizens when
danger has threatened or when violence has attacked their persons
or their interests. Such claims would, of course, be entitled to con-
sideration, but the Government would require to be fully satisfied
that citizenship had not at any time been disclaimed or abandoned for
selfish purposes before it would feel bound to demand redress for
such claimants. Interposition in such cases would be extended as a
matter of grace, and not of right."
Mr. Marcy, Sec. of State, to Mr. Peden, min. to Arg. Rep., April 10, 1856,
MS. Inst. Arg. Rep. XV. 91.
A passport will not be granted to a naturalized citizen who may be
inferred, from long residence abroad and other circumstances, to have
abandoned his nationality.
Mr. Fish, Sec. of State, to Messrs. Lockwood & Post, Oct. 27, 1874, 105
MS. Dom. Let. 3.
H. G., a naturalized citizen of the United States, had resided, at
least since 1870, in Nicaragua, where he had married, had reared a
family, and apparently intended to remain. In 1881 he solicited a
passport for himself and his family from the American legation, as
well as its interposition in a matter between him and the Nicaraguan
Government concerning the duties on some imported goods. It was
held that, without regard to the question of his " actual citizenship,"
concerning which no opinion was expressed, his requests should not be
complied with.
Mr. Blaine, Sec. of State, to Mr. Logan, No. 132, March 9, 1881, MS. Inst.
Cent. Am. XVIII. 159.
Karl Klingenmeyer applied to the United States legation in Ber-
lin in 1884 for a passport. He was born in Wiirtemberg in 1862.
His father, Avho was also a native of that country, had boon natural-
ized in the United States, but it was doubtful whether ho had not at
the time of Karl's birth renounced his American nationality. It
appeared, however, that Karl Klingenmeyer had not, until the filing
928 PASSPORTS. [§514.
of his application for a passport, claimed American citizenship ; that
lie had no intention of making his home in the United States, and
that he desired a passj)ort in aid of his marriage in Germany. On
these facts it was decided that his application should be denied.
Mr. Frelinghuysen, See. of State, to Mr. Kassou, miu. to Germany, Jan,
15, 1885, For. Rel. 1885, 396.
" The burden of proof is always on the applicant for the passport,
and here there is no evidence to prove either his father's non-aban-
donment of his United States citizenship or his own election of such
citizenship, save the applications of father and son for passports."
Mr. Porter, Act. Sec. of State, to Mr. Winchester, min. to Switz., Sept 14,
1885, For. Rel. 1885, 811.
" Your dispatch, No. 68, of the 24th ultimo, has been received. . . .
You formulate six points, upon which you ask the views of the De-
partment :
"(1) For how many years may a citizen of the United States reside
abroad without losing his American domicil ?
" (2) Would any limit of time in this regard apply to native as well
as naturalized citizens, or only to the latter ?
"(3) Applicants for passports being required to state under oath
the time within which they intend returning to the United States,
what is the longest period of time they may fix ?
"(4) If an applicant refuses to swear that he will return to the
United States within a fixed time, should a passport be refused him?
"(5) Does the limit of time referred to in questions 3 and 4 apply
equally to native-born and naturalized citizens ?
"(6) If application is made to you for the renewal of a passport,
and it appears on examination that the time has expired within
which the bearer of the old passport stated his purpose of returning
to the United States, and that, nevertheless, he has not been to Amer-
ica to resume the duties of citizenship, should a renewal of his pass-
port be declined ?
" In reply to your first question, I have to say that there is no fixed
term of foreign residence by which the loss of American domicil is
decided. The domicil of a person depends upon his intention, which
is to be determined upon all the facts in the case. In the determina-
tion of this question no distinction is made between native and nat-
uralized citizens, but the comparative periods of residence in this and
in foreign countries are to be considered in arriving at the real inten-
tion of the individual.
" This observation answers your second question.
" From what has been said, it results that the Department is unable
to fix a certain and constant period within which a person must return
§514.] GROUNDS FOR REFUSAL. 929
to the United States. This answers your third and fourth questions,
and the reply made to your second question applies also to your fifth.
" In answer to your sixth question, I have to say that where, in his
application for a passport, a person makes oath that he intends to
return to the United States within a certain time, and afterwards,
when he applies for a renewal of his passport, it appears that he has
not fulfilled that intention, this circumstance raises a doubt as to his
real purposes and motives, which he may be called upon to dispel.
The imfavorable presumption which he has by his own act created is
not conclusive against him, but he should be asked for explanation.
"As has been stated, no distinction is made between native and nat-
uralized citizens. But certain elements of fact may exist in the case
of the latter which do not arise in the case of native citizens. For
example, we will take the case of a native-born subject of a foreign
power, who, having grown up under its protection and owing it
allegiance, comes to the United States and immediately after acquir-
ing naturalization returns to his country of origin to reside, claiming
exemption from the burdens of its citizenship, but performing none
of the duties of citizenship in the United States. To permit such a
thing to be done for the purpose of evading the obligations of alle-
giance would be to promote a fraud under the guise of expatriation.
To meet such a case we find that it has generally been provided in our
treaties of naturalizaiton that, where a citizen of one of the contract-
ing parties, naturalized under the laws of the other, returns to his
original .country and resides there for two years, he may be held to
have renounced his naturalization. The adverse presumption thus
created may be rebutted. In deciding Avhether it has been, all the
facts in the case must be considered together, but these facts must not
be inconsistent with his resolve and his practical ability to return
hither and fulfill the obligations of citizenship."
Mr. Blaine, See. of State, to Mr. Grant, min. to Austria-Hungary, March
25, 1890, E^or. Rel. 1890, 11.
That intention of permanent residence abroad deprives one of tlie right to
a passport, see the case of Theodore Rosenberg, For. Rel. 1892, 230, 233.
S., who was " domiciled in Mexico City," where he had resided for
fourteen years and followed the occupation of a jeweler, applied to
the United States legation for a passport, for himself and his wife, for
the purpose of a visit to Hamburg, Germany. He had obtained a
passport from the legation in 1886, and in 1888 secured a Mexican cer-
tificate of American nationality. He was born in Hamburg in 1858,
and claimed United States citizenship through his father, Avho was
alleged to have been a native citizen, but who, '" when a young
man," left the United States and settled in Germany, of which his
father, who was " thought to have been a naturalized citizen of the
H. Doc. 551— vol 3 59
930 PASSPORTS. [§ 514.
United States," was a native. No evidence, however, was produced
of the grandfather's naturalization or of the father's place of birth
or the age when he went to Germany to live. S. himself had never
resided in the United States, having been in the country only two or
three times, on brief visits ; and he stated " that he intended to reside
in Mexico City permanently for the future." Held, that in view of
the " total absence of American residence, covering the whole paSt
and future life of the applicant and the whole life of his father from
early manhood," of the fact that for " two generations neither father
nor son has evinced a purpose to fulfill the duties of good citizenship,''
and of the failure to exhibit any " purpose of residence in the United
States " in his sworn application, S. was not entitled to a passport.
Mr. Gresham, Sec. of State, to Mr. Gray, min. to Mexico, May 13, 1893,
For. Rel. 1893, 423.
Exceptions to the rule that the applicant for a passport must
produce evidence of intention to return to and reside in the United
States have occasionally been made on grounds of public policy.
Thus the issuance of passports has been authorized in the case of
missionaries in foreign lands whose residence there was continuous
and practically permanent and who could not allege any definite
intention of returning to and residing in the United States. An
exception has also been made in the case of agents of American
business houses who are engaged in foreign lands in promoting trade
with the United States.
Mr. Gresham, Sec. of State, to Mr. Runyon, ambassador to Germany,
Nov. 1, 1894, For, Rel. 1894, 245, citing Wharton's Int. Law Digest,
II. 369, 370.
" The language of the Porto Eican law is to be construed in its
general legal sense, in which continual personal jiresence is not nec-
essary to constitute continuous residence. The native of Porto Rico
who makes it the place of his permanent domicil does not, th«n"efore,
lose the benefits of the act because he was temporarily abiding else-
where when it went into effect."
Mr. Hill, Act. Sec. of State, to Mr. Lenderink, charge in Chile, April 29,
1901, For. Rel. 1901, 32.
" Reasons of health that render travel and return [to the United
States I impossible or inexpedient are given in the circular instruction
of March 27, 1899, ... as one of the facts that may influence a
favorable conclusion " on a passport application, made to a legation,
by an American citizen residing abroad.
Mr. Ilay, Sec. of State, to Mr. Hardy, min. to Switzerland, No. 11, June 7,
1901, MS. Inst. Switz. III. 203.
§514.] .GROUNDS FOR REFUSAL. 931
See, also, Mr. Ilay, Sec. of State, to Mr. Leishman, min. to Switz., No.
214, J'eb. 4, 1901, id. 254; Mr. Hay, Sec. of State, to Mr. Fletcher,
Feb. 4, 1901, 250 MS. Dom. Let. 528.
It has been shown elsewhere that continuous residence for reasons of
health in one i)lace is not incompatible with the preservation of a
domicil in another place. (Supi'a, § § 477, 487.)
Emile Stoltz, a native of Alsace, after obtaining naturalization in
the United States, went to Switzerland, where he married and reared
a family. After residing there 14 years, the United States legation
at Berne refused to renew his passport and the Swiss Government
threatened to expel him. It appeared that he had endeavored to
acquire Swiss nationality, but was unable to find any commune that
would accept him as a burgher, because of his scanty means and
large family. The Swiss Government, through its minister at Wash-
ington, inquired whether the legation at Berne might not be author-
ized to issue him a passport. With this request the Department of
State declared that it was unable to comply on the ground that
" where an American citizen goes to a foreign country and settles
!;here aniuio ?nancndi, ... he thereby forfeits the right to the
protection of this Government and is to be considered as having
ixpatriated himself."
Mr. Hill, Act. Sec. of State, to Mr. Pioda, Swiss min., June 14, 1901, For.
liel. 1901, 511.
Applications for passports were made to the United States legation
in Japan by Alexander and Basil Powers, sons of Philip H. Powers,
a native citizen of the ITnited States, who had resided in Russia for
thirty years, as agent of the firm of Walsh, Hall & Co., of Osaka and
Hiogo, Japan. Alexander was 21 years old; Basil, IJ). Both were
born in Russia ; neither of them had been in the United States.
Their native language apparently was Russian, the elder not speaking
English, and the younger inqierfectly. They desired passports " for
purposes of business " in Russia. By the Russian law persons born
in Russia of alien i)arents may, within a year after attaining their
majority, be admitted to Russian allegiance if they desire it, but in
case they do not exercise the i)rivilege they renuiin aliens. In the
present cases, therefore, no conflict of allegiance arose, but the lega-
tion refused to grant the passports on the ground of a want of con-
nection of the applicants with the United States. A passport was,
however, issued to Philip II. l*owers, which included the minor son,
Basil, and two other minor children.
" Between the legal status of citizenship and the right to continued
protection during indefinitely prolonged sojourn abroad, the executive
authority of the United States draw's a clear distinction in exercising
its statutory discretion to issue passports as evidence of the right to
932 PASSPORTS. [§ 514.
protection. The relation of the citizen (o the state heinj^ reciprocal,
embracing the duties of (he individual, no less Ihan his rights, the
essential thing to he determined is the good faith with which the obli-
gations of ci(izenshij) are fulfilled.
" The best evidence of the intention of the party to discharge the
duties of a good citizen is to make the United States his home; the
next best is to shape his plans so as to indicate a tolerable certainty of
his returning to the United States within a reasonable time. If the
declared intent to return be conspicuously negatived by the circum-
stances of sojourn abroad a passport may be withheld.
"Alexander Powers being now sul juris, his case is to be treated
precisely as any other where the conduct of the applicant suggests a
voluntary evasion of the obligations of American citizenship and
abandonment of the conditions under which protection is properly to
be granted.
" Basil Powers, the younger brother, is now 19 years of age, and
therefore under jDarental control. It appears that it is his father's
purpose to send him to Vladivostock for business purposes, thus in-
volving his separate resMence in Russia. If the facts in your knowl-
edge indicate reasonable bona fides, there is no objection to your
granting a passport to Basil during minority. On his attaining his
majority his case will fall in the same category as that of his brother
Alexander.
" The status of the father, Philip H. Powers, is questionable as to
the continuance of a bona fide claim to protection as a native-born cit-
izen. He appears to have resided constantly in foreign parts for at
least twenty-one years; how much longer is not stated. He merely
alleges a vague purpose to return to the United States with his chil-
dren ' as soon as convenient to do so,' or ' when business circumstances
would allow.' More positive evidence of intention to return is cer-
tainly requisite ; but the facts of his business employment abroad may
importantly modify this aspect of his case if the firm he serves,
Walsh, Hall & Co., of Osaka and Hiogo, be the foreign branch of a
business concern having its headquarters in the United States.''
Mr. Adee, Acting Sec. of State, to Mr. Coombs, min. to Japan, April 28.
1893, For. Rel. 1893, 401, 402.
Two persons, father and son, applied to the legation of the United
States at St. Petersburg for passports. The father went to the
United States forty-two years before, and after five years' residence
was naturalized. He left the United States in 1864, and afterwards
resided nearly thirty years in Poland, where he evidently intended to
remain. The son, who was born in Poland in 1872, had never been
in the United States, although he swore in his application that ho
intended to " return " to the United States within two years. He
§ 514.] GEOUNDS FOR REFUSAL, 933
was educated at a German university and could not speak English,
It was held that the father, by resuming- and maintaining his domicil
in the country of his original allegiance, had " conspicuously nega-
tived " all presumption that he had preserved a right to continuous
protection as a naturalized citizen. As to the son, it was held that if
he should make clear his intention on attaining majority to come to
the United States, he might have a passport, but not otherwise. As
to other and younger children it was held that they should as
minors " have the benefit of the doubt, and be secured recognition
of the status of American citizenship under section 1993, Revised
Statutes, until they come of age and become competent to exercise the
option of domicil which belongs to them."
Mr. Gresliam, Sec. of State, to Mr. White, min. to Russia, June 6, 1893,
For. Rel. 189.3, 5iPi.
With this instruction Mr. Gresham annexed a copy of his No. 84, of April
28, 1893, supra, to the United States minister at Tolcio, in regard to
the passports application of Alexander and Basil Powers.
In the foregoing case, as in various other cases, where a passport
has been refused to a citizen of the United States, and also to his wife,
if he had one, on the ground of apparently permanent residence
abroad, passports have at the same time been directed to be issued to
his foreign-born children on the ground of their citizenship of the
United States under § 1993, R. S,
Mr. Sherman, Sec. of State, to Mr. Breckinridge, min. to Russia, No. 403,
April 20, 1897, MS. Inst. Russia, XVII. .507 ; same to same. No. 408,
May 3, 1897, id. 571 ; Mr. Hay, Sec. of State, to Mr. Harris, min. to
Aust.-Hung., No. 73, March 27, 1900, MS. Inst. Austria, IV. 405.
These cases are cited as types of a numerous class.
In the first one the api)licant for a i)assi>ort was a native citizen of the
United States who had lived continuously in Russia since 18<)7 — a
term of thirty years. It was expressly declared that " the refusal
to gi'ant a passport does not necessarily depiMve the man of his citi-
zenship," hut the children were held to he entitled to passports as
" natural-horn American minors," i. e., as American citizens. Their
domicil, it is needless to say, was the same as their father's.
In the second case the api)licant was a naturalized citizen of German
origin, who had resided twenty-two years in Russia. In the third
case the ai)plicant was a widow who had lived twenty-three years
ahroad, and declared that she desired a passport for purposes of
sojourning in Austria.
J, W. S,, a native of Germany, was naturalized in the United
States in 1848. In November of the same year he obtained a passport
from the Department of State and went to Eiiroi)e, Avhere he appar-
ently continued to reside, making only occasional visits to the United
States. He finally settled in Berlin in 18()r), and died there in 1870,
During his residence in Europe he married a Prussian woman, who,
934 PASSPORTS. [§^14.
in 188fi,' api)lie(l to the American legfation in Brussels for a passport.
She resided with hei- luisband in the United States on one occasion
for six or seven months, but, when she applied for the passport, was
residing in Europe, and had no intention of returning to the United
States, It w^as held that, " under such statement of facts, and the
treaty of 18G8 witli (jermany," she was not entitled to a passport.
Mr. Freliiigluiysen, Sec. of State, to Mr. Fish, No. .35, April 23, 188.3,
MS. Inst. Belg. II. 323.
In 1887 an application for a passport was made to the American
legation at Vienna by Mrs. Antonia Munde, a widow\ She stated
in her application that she was temporarily residing at Goritz, and
that she intended to return to the United States " in about fifteen
years." It appeared that her husband was a native of Saxony, who
was naturalized in Massachusetts in 18.54; that he went in 18GG to
Bavaria and afterwards to Wiirtemberg, and that still later he
established his residence in Switzerland, where he married the appli-
cant. Before his death he went to Goritz and in 1885 obtained a
passport from the American legation at Vienna as a citizen of the
United States. On these facts the legation refused to issue Mrs.
Munde a passport. In approving this decision the Department of
State remarked that it was not necessary to determine the effect of
Mr. Munde's long residence abroad upon his acquired citizenship.
Assuming that he always retained the animum revertendi, his widow,
who had never been in America, did not exhibit such evidence of an
intention to come to and reside in the United States as would warrant
the Department in saying that she had retained the alleged American
domicil of her late husband. This was, however, the Department
added, a question of evidence to be determined upon the proofs sub-
mitted, and it was not thought that those before the Department
were sufficient to warrant a final decision, although, as they pointed
to an Austrian rather than an American domicil, they justified the
withholding of a passport without prejudice to any rights to which
Mrs. Munde might afterwards show herself to be entitled.
Mr. Bayard, Sec. of State, to Mr. Lawton, min. to Austria, July 28, 1887,
For, Rel. 1887, 23-24. See, also, pp. 20-22.
The foreign-born wife of an American citizen, who has never been
in the United States, can claim the protection of the United States
only through her husband, and if, by continuous residence abroad,
he abandons his right to protection and to a passport, the wife also
loses her right to protection.
Mr. Sherman, Sec. of State, to Mr. Storer, mIn. to Belgium, Nov. 10, 1897,
For. Rel. 1897, 31, 32,
§514,] GROUNDS FOR REFUSAL. 935
In 1848 a native of Bohemia, named Eisenschimmel, emigrated to
the United States, and in 18G8 was naturalized under the name of E.
Alexander. In 1872 he returned to Austria, where he resumed his
original name, and where in 1874 he married an Austrian subject.
He thereafter resided continuously in Vienna, engaged in business as
a photographer, till 1888, when he died, leaving a widow and three
children, none of whom had ever been in America. In 1890 his widow
applied to the United States legation at Vienna for a passport and
exhibited one which had been issued to her in ISOO. It appeared that
in obtaining this passport she stated that she would within tAvo years
proceed to the United States, and she gave no substantial reason for
failing to do so except that she did not want to take her children, who
were then respectively aged 22, 20, and 19, from their schools in
Vienna. The legation refused to issue the passj)ort, and its action
was approved.
For. Rel. 1899, 75-77.
" I have to acknowledge the receipt of your No. 499, of the 20th
ultimo, inclosing a copy of a letter from Mrs. L. Lassonne, appealing
for a United States passport.
" You refer to the Department's No. 379, of March 15, 1897, to Mr.
Breckinridge, in which the Department declined to issue a passport to
Mrs. Lassonne.
" The opinion of the Department that Mrs. Lassonne was not en-
titled to a passport Avas not based on the hypothesis that she Avould he
claimed as a S^viss citizen by Switzerland. This was merely men-
tioned as a suggestion that she might possibly secure a Swiss passj^ort.
The decision of the Department was based upon her abandonment of
the citizenship which she acquired by her marriage to a citizen of the
United States.
" I quote from the instruction :
" ' It appears that the applicant, being a native of Switzerland, Avas
married in St. Petersburg in 1874 to Mr. Charles Lassonne. . . .
She is now a AvidoAv. She has never been in the United States, and
has no apparent intention of coming hither. . . . ^The only ques-
tion for the Department to consider is Avhether, under the circum-
stances, Mrs. Lassonne is entitled to protection as a citizen of tlu-
United States. Mrs. Lassonne's claim can, of course, be no better than
her husband's Avould be Avere he aliA^e; and it Avould seem that at some
time in or i)rior to 1871 he A'irtually abandoned his American resi-
dence for a European domicil. The AvidoAv's case is CA-en Aveaker,
for, during nearly a quarter of a century since her nuirriage, she has
never enjoyed an American donucil.'
936 PASSPORTS. [§ 515.
" AMiilc the Department V sympathies are Avith Mrs. Lassonne, it
thinks that she is not entitled to a passport as an American citizen.''
Mr. Hay. Sec. of State, to Mr. Tower, ainb. to Russia, Dec. (J, 1901, For.
Rel. 1901, 44G.
4. Foreign Residence of Citizens nv Bibth.
(1) persons bobn in the united states.
§515.
" Rau, born of naturalized parentage, in Kansas, is taken to Europe
while a minor, marries, and establishes himself in Switzerland ; not
in the country (Wiirtemberg) whence his father emigrated. Upon
his applying to you for a passport as an American citizen, you
required his definite declaration of intention to return to the United
States within some certain time, basing your requirement on the
ground that, under the circumstances of Rau's birth and residence
during minority, his indefinite residence abroad, without evident
intent to return, amounts to self-expatriation.
" The proper officers of the Department have given every attention
to the case, both as reported by you, and upon the appeal and docu-
mentary evidence submitted by Mr. Rau.
" It is conceived that, in applying to his case the doctrines of repa-
triation as tantamount under the circumstances to 6^a?patriation, 3'ou
have extended the thesis you advance of Rau's citizenship being due
to his father's naturalization beyond the point where it should right-
fully rest. For, while there may be rational doubt as to whether
Rau is a good citizen of the United States, sharing alike the burdens
and privileges of his fellow-citizens, he is still undoubtedly a citizen.
Having been born here, of a naturalized father, the question of
repatriation would not obtain in his case, even if he Mere permanently
domiciled in Wiirtemberg, his father's place of nativity. The De-
partment holds thqt for a native American to put off his national
character he should put on another. Continued residence of a native
American abroad is not expatriation, unless he performs acts incon-
sistent with his American nationality and consistent only with the
formal acquirement of another nationality, and the same rule holds
equally good in the case of a naturalized citizen of the United States
who may reside abroad otherwhere than in the country of his original
allegiance. Existing statutes confirm the princii)le by providing that
citizenship shall flow to the children of American citizens born
abroad, the birthright ceasing only with the gi-andchildren whose
fathers have never resided in the United States. Foreign residence,
even for two generations, is, therefore, not necessarily e.»patriation,
in the sense of renouncing original allegiance, nor is it necessarily
§ 515,] GROUNDS FOR REFUSAL. 937
repatriation unless through the conflict of hnvs of the respective
countries and the conclusion of conventional agreements between
them.
" If, therefore, Mr. Rau shall make application in the usual form,
fortified by affidavit and documentary evidence of his American birth,
and shall show that he has not forfeited his native allegiance by
assuming another, the Department conceives that he is entitled to a
passport for himself and wife.
" The application of Mr. Rau to this Department, through the Hon.
J. W. Stone, M. C, of Michigan, was in the nature of an appeal from
your action in his regard, coupled with a request that a passport
should issue to him directly from the Department. The rule which
has been enforced for some years is that ' citizens of the United
States desiring to obtain passports whilq in a foreign country must
apply to the chief diplomatic representative of the United States in
that country.' There is no good reason why that rule should not be
applicable now, or why action should be taken here which might
imply reversal of 3'our decision. The Department prefers to regard
you as not having refused a passport to Mr. Rau, but, rather, as hav-
ing, through connnendable zeal in the furtherance of true American
interests abroad, required of the applicant a declaration not techni-
cally necessary, either in view of his birthplace or present country
of residence."
Mr. Evarts, Sec. of State, to Mr. Fish, Oct. 19, 1880. For. Rel. 1880, 960.
A. J. was born in New York, in 1847, of alien parents, his father
having, however, in 1843, made a declaration of intention to become
a citizen. In 1850 the father removed with his family to New
Granada, but in 1859 completed his naturalization in the United
States, though there was nothing to show that his Nev/ Granadian
residence was interrupted. In 1866 the father removed with his
family to Mexico, where A. J. continued to live and was still living
when, in 1880, being then ^>\ years old. he sought a passport from the
United States legation. He declared that he had since attaining
his majority done nothing inconsistent with his native allegiance
as an iVmerican citizen. The Department of State held that, while
passports were issued only to citizens, there Avere cases in which a
passport would be refused to a citizen; that the case of A. J. was one
of these. '' He has,'' said the Department of State, '' resided out of
the United States the greater part of his life, and according to his
oAvn statement there do not exist in regard to him now any special
circumstances that render his possession of a passport any more
necessary now than during any other period of his long residence
abroad."
Mr. Hay. Act. Sec. of Stale, to Mr. Morgan. Xo. 8C.. Dee. 22, 1880, MS.
Inst. Mex. XX. 214.
938 PASSPORTS. [§ 515.
It appeared that S. B. O., who was the son of a native American
residing in Liverpool, and who was registered at the United States
consuhite there as a citizen of the United States, was born in New
Orleans, La., August 14, 1855; that he left the United States when
a child and had never since been domiciled there; that for 10
years he had been in business in Brazil and had, so far as appeared,
been in the United States only once, and then as a visitor, in 1889;
that he held a passport issued by the United States consul at Rio de
Janeiro, October 9, 1878; that he had lately sojourned temporarily
in Liverpool, having no occupation there, and had since gone to seek
business in Portugal ; and it was stated that, " although hoping and
intending ultimately to reside in the United States, the time for his
return thither can not be stated even approximately." Mr. Lincoln,
American minister in London, refused, Feb. 14, 1890, to issue to him
a passport. Mr. Blaine, March 19, 1890, approved Mr. Lincoln's
views, but instructed him that the Department of State, before ren-
dering a decision in the case, would consider any application and
statement which S. B. O. might desire to make with reference to his
departure from the United States and his residence abroad.
For. Rel. 1890. .323, 331.
" I have received your dispatch No. 125, of the 21st ultimo, in
relation to the a^jplication of Mr. Rudolph Nejedly for a passport as
a citizen of the United States.
" The facts of the case appear as follows : The applicant was born
in New York July 18, 1854, of a father whose national origin is not
stated, but wdio, having emigrated to the United States in 1852, was
naturalized October 10, 1800. The father returned to Europe in 1801,
and has since resided there, doing, as far as you can learn, nothing to
retain his American citizenship. It is to be inferred that Rudolph
Nejedly, being then 0 years old, was taken to Europe with his father,
and he declares that he has since 1801 resided in Vienna. ^^Hien 18
years old, in 1872 — and liable to conscription — a passport was granted
to him by your predecessor, Mr. Jay. Since then the applicant has
done nothing until now that would indicate a desire on his part to
maintain his American citizenship. He is employed in the Savings
Bank of Vienna, and you gather from his statements that he has no
intention of ever returning to this country to reside. His sworn
declaration is that he intends to return to the United States ' when
circumstances will permit.'
" This declaration, when considered in connection with the circum-
stances detailed in your dispatch, is far from constituting an expres-
sion of a purpose ever to return to the United States, and is altogether
unsatisfactory.
§ 515.] GEOUNDS FOR REFUSAL,. 939
" Moreover, as ISfr. Xejedly was born in the United States of a for-
eign father, it is probal)le that the most that could inider an\' circum-
stances be claimed for him is that he was born with a double alle-
giance. But double allegiance does not always continue when the
person so endowed reaches his majority; he must make an election
by taking up his residence and performing the duties of citizenship
in the one country or the other. This requirement would apply with
peculiar force to Mr. Nejedly, who is living in Austria, the country
of which at the time of his birth his father is supposed to have been
a subject.
" This supposition the Department bases upon your statement that
the circumstances indicate that Mr. Nejedly has sought the protection
of the United States only for the purpose of evading the performance
of the duties of citizenship in Austria and without any intention to
assume the duties of citizenship in this country. However this may
be, birth in this country of a foreign father, a residence of six or seven
years thereafter, followed by departure Avith the father (who aban-
dons the country immediately after his naturalization) and by a
continuous residence abroad up to the thirty-seventh year without
having returned to this country, without any identification with its
interests, and without any apparent intention to come hither and
assume the duties of citizenship, must be held to constitute a very
slender basis for a claim to the protection of the United States. For
a government, without any exj^lanation of circumstances, to sustain a
claim to protection might seem to indicate a readiness to submit to
imposition upon itself, practiced for the purpose of imposition upon
another government.
" The Department can not, as at present advised, direct the issuanc<>
of a passport to Mr. Nejedly."
Mr. Blaine, Sec. of State, to Mr. Grant, niin. to Anst.-IIung., No. 110, Feb.
20, 1891, For. Kol. 1891, 10.
See a similar decision in the case of U. G. W. Tippitt. wiio claimed Amer-
ican citizenship under § 199.3, R. S. (Mr. Rhiino. Sec. of State, to :\Ir.
Grant, min. to Anst.-IInnK.. No. 179. Jan. 2"). 1892, For. Kel. 1892, 0.)
See, as to the case of Rudolph F^rnest Briinnow. Mr. Adee. Act. Se<*. of
State, to Mr. Lincoln, min. to England. No. 70, Aug. .'U. 1889, For.
Rel. 1889, 400.
In 1894 Mr. Thompson, the American minister at liio do Janeiro,
declined to issue passports to six native American citizens, on tl)e
ground that they had continuously resided twenty-seven years in
Brazil, and had no apparent intention of returning to the Uniteil
States. The action of Mr, Thomj)son was approved.
Mr. Tlhl, Act. Sec. of State, to Mr. 'riK)mi>son, min. to Brazil. No. \'.i7,
May 31, 1894, MS. Inst. Brazil, XVIII. 58.
940 PASSPORTS. [§ 515.
It iippoiired that of tlie six pcrsoiiK in (luostioii two wore natiw»s nf Ala-
hamu and two of Georsi'i, while one was a native of Louisiana and one
of Teiniessee. In approving tlie refusal to issnt' tlieni p:issiK>iis,
Mr. Uhl said: "The refusal of the j)assiH)rt would not ne<essarily
imply a refusal to intervene in case of their heinj? drafted into the
Brazilian army. Each case should, in such contingency, be decided
on its special merit."
" The Department has received your No. 10 of July 10, 1901, sub-
mitting the application for a passport of Carl Schimaneck, and a
presentation of his case by Consid Donzelman at Prague, who thinks
the applicant is not entitled to protection as a citizen of the United
States. It appears that he was born here; that his father had de-
clared his intention of becoming a citizen of the United States before
the son's birth, but died before he secured naturalization; that the
mother never secured naturalization as a citizen of the United States,
and returned to Bohemia with the applicant when he was four years
of age, and that he has himself never been in the United States since.
He does not speak English, has married a Bohemian, is engaged in
local business, and, as it would seem, is permanently settled in Bo-
hemia. In considering the case, the question of the citizenship of
the applicant's parents is not material, as Consid Donzelman seems
to think it is, because birth in the United States of itself confers
United States citizenship under the provisions of our laws. In con-
struing these provisions the legation has correctly followed the nu-
merous ridings on the subject by this Department (see The American
Passport, pp. 102, 104, 105), and the rulings are themselves in full
consonance with the decisions of the Federal courts. (See notably
35 Fed. Rep., 354, and 169 U. S., 649.) If, therefore, the applicant
were still in his minority, or were only temporarily abroad, there
would be no doubt of his being entitled to the protection of a passport
as a native citizen of the United States. The question really in-
volved, however, is whether or not he has abandoned his right to that
protection. The Department's circular instruction of March '27,
1899, on the subject of ' Passports for persons residing or sojourning
abroad,' contained the following quotation from Jpecretary Fish :
" ' When a person who has attained his majority removes to another
country and settles himself there, he is stamped with the national
character of his new domicil ; and this is so, notwithstanding he may
entertain a floating intention of returning to his original residence or
citizenshiji at some future period, and the presumption of law witli
respect to residence in a foreign country, esjiecially if it be protracted,
is that the party is there animo manendi^ and it lies with him to ex-
plain it.'
§ 516,] GROUNDS FOR REFUSAL.. 941
" Obviously, these remarks apply with equal force to one who re-
mains in a foreign country after he has attained his majority. The
circular further says :
" ' Wlien an applicant has completely severed his relations with
the United States ; has neither kindred nor property here ; has. mar-
ried and established a home in a foreign land; has engaged in busi-
ness or professional pursuits wholly in foreign countries; has so
shaped his plans as to make it impossible or improbable that they
will ever include a domicil in this country — these and similar cir-
cumstances should exercise an adverse influence in determining the
question whether or not a passport should issue.'
" Each circumstance quoted above appears to be applicable to Mr.
Schimaneck, with the additional fact that in applying for the pass-
port issued him by your legation August 4, 1894, he swore that he in-
tended to return to the United States, which he has not done, and in
his pending application he makes the same promise, which there is
strong reason for believing he will not keep. The circvdar also says:
" ' If, in making application for a passport, he (the applicant)
swears that he intends to return to the United States within a given
period, and afterwards, in applying for a renewal of his passport, it
appears that he did not fulfill his intention, this circumstance awakens
a doubt as to his real purpose which he must dispel.'
" So far from the doubt having been dispelled in this case, it ap-
pears to have been confirmed. The Department is therefore of the
opinion that, there being no additional facts to change the aspect of
the case, Mr. Schimaneck's application for a passport should not be
gi'anted and the applicant informed that he must renew his residence
in the United States which was abandoned in his infancy, before he
can expect to receive the protection of this Government while he is
abroad."
Mr. Hay, See. of State, to Mr. Herdliska, charge at Vienna, Aug. 20 1901,
For. Rel. 1901. 13.
See, also, Mr. Adee, Acting Sec. of State, to Mr. Combs, uiin. to Guatemala,
No. 71, Sept. 15. 1903. For. Uel. 1!K>3. 59.").
For further quotations from the circular of ^Nlarch 27, 1899, see infra,
§ 517.
(2) PERSONS BORN ABROAD.
§ 51G.
John Pepin, a Frenchman by birth, emigrated when a young man
to the United States, and became a naturalized citizen. In 1850 he
returned to France, where he married a French woman, by whom he
had two children, a daughter and a son. Tie never returned to the
United States to live. At his death he left some property at New
Orleans, which his family continued to hold. In 1873 the widow ap-
942 PASSPORTS. [§510.
plied to the American legation in Paris for a passport for her son,
who was then eighteen years of age. It appeared that she had
visited the United States two years before with her daughter, and had
obtained a passport from the I)ei)artment of Stat<i as an American
citizen ; and she stated that her son had once obtained a passport from
the American legation in London, but had lost it. He had never been
in the United States. It was held that he exhibited none of the
" indicia necessary to show an intent on his part to assume the duties
of citizenship as well as the privileges granted by the act of 1855 "
{\Q Stat. G04) ; that were it not for his desire to avoid the perform-
ance of duties required by French law, he probably Avould not have
asserted American citizenship ; and that there was a presumption of a
purpose of expatriation so strong that, unless it could be rebutted to
the legation's satisfaction, he would not be entitled to the legation's
protection against the operation of the laws of the country.
Mr. Fish, Sec. of State, to Mr. Washburue, min. to France, June 28, 1873,
For. Rel. 1873, 1. 25G, 260-261.
H. K. was born in Mexico in 1855, after his father, a naturalized
citizen of the United States, had removed to that country. H. K., so
far as he could recollect, had never been in the United States. His
permanent abode was London, England ; he had no connection with
any American interest, and he had no intention to settle in the United
States or to assume the duties and responsibilities of American citi-
zenship. He had once obtained a passport as a citizen of the United
States, but it was cancelled by the legation of the United States in
London because it was over two years old. The Department of State
refused to instruct the legation to issue a new passport.
Mr. Bayard, Sec of State, to Mr. White, charge, March 5, 1880, For. Rel.
1889, 449 ; Mr. Wharton, Assist. Sec. of State, to Mr. Keller, May 3,
1889, 172 MS. Dom. Let. 650.
" I have to acknowledge the receipt of your No. 10 of October 3d
last, in which you transmit an application of Dr. Julius Altschul for
a passport, together with affidavits of the applicant and other i)er-
sons in regard to the good faith of his residence abroad and of his
intention to come to the United States upon the completion of the
studies which he is now pursuing in a chemical laboratory at Grumau
near Berlin.
" In this relation it is proper to recapitulate the facts in the case.
Julius Altschul was born in London, Nov. 3, 1864. His father, Sig-
mund Altschul, an Austrian subject by birth, came to the United
States in 1848, In 1854 he was naturalized and went abroad and
never afterwards returned to the United States. Up to March, 1889,
he was from time to time granted passports as a citizen of the United
§ 516.] GKOUNDS FOR REFUSAL. 943
States by various legations, and in April last he died, while an appli-
cation to your legation for another passport was still pending.
" It is clear, therefore, that when Julius Altschul was born his
father was regarded by this Government as one of its citizens. Sec-
tion 2172 of the Revised Statutes provides that ' the children of
persons who are now, or have been, citizens of the United States,
shall, though born out of the limits and jurisdiction of the United
States, be considered as citizens thereof.' Under this provision
Julius Altschul was born with a title to American citizenship. Being
born out of the United States, he might also have been subject to the
claims of another government, if his birth within its jurisdiction
made him a citizen under its laws. But no such claim has been made
and consequently no conflict of allegiance is presented. Nor does
there appear to be any ground whatever for any claim of allegiance
by the German Government, within whose jurisdiction Julius Alt-
schul now is, and in which he proposes to remain until he comes to
the United States.
" Under these circumstances, it is thought that the papers and
affidavits now presented to the Department disclose a reasonable
explanation of Julius Altschul's present residence in Germany and
of his proposed temporary residence there for the next few years
consistent with his declaration of continued allegiance to this country.
" You are therefore instructed to grant him a passport, but to make
such a record as will bring the circumstances of the case before the
legation, should an application be made by him for another passport
in the future."
Mr. Blaine, Sec. of State, to Mr. Phelps, niiii. to Germany, No. 32, Dec.
14, 1889, MS. Inst. Germany, XVIII. 275.
" I have to acknowledge the receipt of your No. 35 of the 14th
ultimo, in which you transmit an application of Arthur Altschul for
a passport.
" He was born at Dresden, Saxony, June IG, 18G6, and is now
twenty-three years of age. His father, Sigmund Altschul, an Aus-
trian subject by birth, came to the United States in 1848. . . .
Arthur Altschul still resides in Dresden, though he is at present tem-
porarily in Berlin. In 1887, just after attaining his majority, he re-
ceived a passport as a citizen of the United States from the legation at
Berlin. Two years having expired, he wishes this passport renewed,
for the purpose of enabling him to reside as an American citizen in
Germany in order that he may complete certain philological studies,
which he is pursuing with reference to teaching in the United States.
In support of his aj^plication he submits affidavits of himself and
other persons to show that he is acting in good faith, and })r<)poses to
come to the United States upon the completion of his studies. Ho
944 PASSPORTS. [§ 51().
slates that he has hitel}' taken the degree of Ph. I), at the University
of Ijeipzifj. Section 2172 of the Revised Statutes provides that ' the
chiklren of persons who now are or have been citizens of the United
States shall, though born out of the limits and jurisdiction of the
United States, be considered as citizens thereof.' Under this section,
Arthur Altschul was born with a title to American citizenship. Hut
it by no means follows that he may not, by reason of having been
born out of the limits and jurisdiction of the United States, or by
reason of subsequent acts of himself or of his parents, have iM'come
subject to the claims of another government. In such case it is the
doctrine of this Government that a person may be possessed of a
double allegiance, and that upon attaining his majority it is neces-
sary for him to elect which he will exclusively adopt. He is not
permitted to retain both, and by so doing to use one for the purpose
of evading his duties to the other, or to both. It has been sug-
gested to the Department that, unless this (lovernment recognizes
the American citizenship of Arthur Altschul, he may be liable to the
claims of the German Government, within whose jurisdiction he was
born and still lives. It has, however, repeatedly been held, upon
the maturest consideration of the law, that the protection of this
Government can not bc employed for the purpose of enabling a
person to escape his obligations to a government to which he owes
valid allegiance, and that, in the case of double allegiance, a passport
should not be granted by one of the governments to which allegiance
is due in order that the a|)plicant may, while continuing to reside
within the jurisdiction of the other, be exempt from its claims. This
principle Avas laid down in 18G9 in the case of certain persons residing
in Curasao (13 Op. Att. Genl. p. 89; Hoar, Attorney General) and
again in 1875 in the case of one Steinkauler, in Prussia (15 Op. Att.
Genl. p. 15, Williams," At. Genl.) and has since been uniformly fol-
lowed.
" In the present case, however, it is stated that under the laws of
Germany that Government has no claim upon the ai)plicant. This
statement is sustained by the fact that no such claim has ever been
made. This being so, the granting of a passport would merely
serve the purpose of enabling the applicant to reside in Germany as
an American citizen until the accomplishment of his studies and of
his design to come to the United States. Under these circumstances
it is proper to issue the passport. But in so doing it is to be under-
stood that it is not granted and can not be permitted to be used either
for escaping [claims] on the part of the (ierman Government or for
permanent residence abroad."
Mr. Blninc, Sof. of State, to Mr. Pliolps. iniii. to (Joniiany. No. ?,:^, Dec. 14,
LSSl), MS. Inst. Germany, XVIII. 277.
oThe opinion here cited was given by Attorney -General Pierrepont.
§ 516.] GROUNDS FOR REFUSAL. 945
" Your despatch No. 445, of the 12th instant, in relation to the
applications for passports made by Mr. Camilo Ponce de Leon and his
two sisters, has been received.
" The applicants are stated to be children of J. M. Ponce de Leon,
who it is said was of Cuban origin, and was naturalized as a citizen
of the United States prior to the birth of the children. It is pre-
sumed that their father is Mr. Jose Manuel Ponce de Leon, a natural-
ized Cuban, well known to the Department by reason of the claims
advanced by him against the Government of Spain for injuries dur-
ing the Cuban insurrection. This Mr. Ponce de Leon is of record
here as having been naturalized before the court of common pleas
of New York City on May 25, 1855. Several passports have been
issued to him from time to time, and no doubt has arisen here as to
his bona fide retention of American citizenship. Assuming the
point of identity, there is no question that the three applicants were
born citizens of the United States. They all appear to have been
born at Cardenas, in the island of Cuba: Eugenia, on November 5,
1859; Maria de los Angeles, on August 13, 1863; and Camilo on
December 11, 1864. They are therefore, respectively now, 31, 28,
and 26 years old. How much of their minority was passed in the
United States does not appear. They aver having left the United
States in April, 1870, and since then would appear to have resided
in France. The present applications for passports would seem to
be the first made by them — a fact perhaps to be accounted for by
the circumstance of living in a country other than that of paternal
origin, and the absence of ground for allegation of any claim to
their allegiance on the part of France.
" The Department has recently had occasion to instruct you in
regard to somewhat analogous cases, where a minor, who, by birth
in a place or of a certain parentage, in the regular way of gaining
citizenship, is invested with the status of an American citizen, attains
legal age in a foreign country. The present cases, however, differ
from that of John Maurice Hubbard, which formed the subject of
the Department's No. 353, of the 30th ultimo, in that these three per-
sons, not having been born in France, appear not to have been called
upon to declare their option of American citizenship within the year
succeeding their coming of age. As regards their relation to the
Government whose citizenship they claim, the similarity is sufficient
to cause their cases to be gauged by the same rule of reciprocal per-
formance of the duties of citizenship and obligation of protection
while the parties remain abroad. Their cases are, therefore, to be
determined on precisely the same footing as those of native citizens
whose long domicil abroad and absence of definite intention to return,
create a presumption of voluntary abandonment o'f claim to pro-
tection.
H. Doc. 551— vol 3 60
946 PASSPORTS. [§ 51G.
" Your course in respect to these applications is judicious. The
future intention of the applicants should distinctly appear, and not
be evidently negatived by the circumstances of their continued so-
journ abroad, before you would be justified in granting passports to
them."
Mr. Blaine, Sec. of State, to Mr. Reid, mln. to France, No. 369, Nov. 27,
i 1891, MS. Inst. France, XXII. 255.
For the case of John Maurice Hubbard, see supra, § 501.
" Mrs. Emily Jane Smith . . . was born at Vladivostok, Rus-
sia, in November, 18G4, and was married in 1884, before the U. S.
consul at Nagasaki, Japan, to Mr. Oscar Fitzallen Smith, a citizen
of the United States, who died at Vladivostok in 1889. Her father,
born in New York in 1835, is now dead, as is also her mother. Mrs.
Smith states that since her marriage in 1884 she has resided at
Vladivostok and at Yokohama, Japan, and that she desires a passport
for use in traveling in Europe. She is about to marry a Russian at
Marseilles.
" It thus appears that this lady, born abroad of a native Ameri-
can father, who appears to have permanently abandoned the United
States, and married to another native citizen who seems likewise to
have relinquished his original domicil, and who has herself never
been in the country of which she claims protection as a citizen, has
no intention of ever coming to the United States, and her object in
asking the passport is to enable her to go to France, there to marry
a Russian subject.
" Under these circumstances Mrs. Smith's claim to protection as
one who bona fide conserves x\.merican citizenship is too intangible
to warrant the issuance of a passport."
Mr. Adee, Acting Sec. of State, to Mr. Dun, uiin. to Japan, July 2(5, 1893,
For. Ilel. 1893, 405.
To the same effect, in relation to the same case, is Mr. Adee, Act. Sec. of
State, to Miss Crosby, July 27, 1893, 193 MS. Dom. Let. 16.
" The applicants, Antoine Phelps and Emanuel Phelps, are stated
by you to be, respectively, 34 and 30 years of age, both having been
born in Hayti of American parents who went thither in 1824. Neither
of them was registered at the time of birth, or has at any time been
in the United States, or has shown since attaining majority any
purpose to come hither. The only evidence they present of tlieir
American character is a certificate, given by your predecessor, Mr.
Hollister, in 1809, to one Pierre Phelps, whose relationship to the
applicants is not stated, while their present application appears to
be for some fornv of permit which will enable them to continue to
reside in Hayti exempt from all burdens of such residence. Under
§ 517.] GROUNDS FOR REFUSAL. 947
the reported circumstances yon are not authorized to grant to the
persons named a passport, which, as you correctly suggest, is the only
certificate of citizenship which you are authorized to grant in anj^
case."
Mr. Hay, Sec. of State, to Mr. I'owell, min. to Ilaytl, Sept. 2, 1899, For.
Rel. 1899, 400.
.5. FoKEiGN Residence of Natukalizeu Citizens,
(1) IN COUNTRY OE OKICIN.
§ 517.
" You complain of the action of Mr. Czopkay, U. S. consul at
Bucharest, in taking aAvay the passport of yourself and son. The true
intent of our iuituralizati(m laws is that the rights and duties of nat-
uralized citizens should be reciprocal. This Government can not con-
tinue its protection to those who have sought naturalization in the
United States for the purpose, by an immediate return after naturali-
zation to their native country, of evading their obligations both to
this Government and that of their former allegiance. While confer-
ring its protection, the Government should not be deprived of the
services and industry of its citizens, and it would be unjust to the Gov-
ernment under which such citizens have taken up a permanent resi-
dence to deprive it of the same. A long continued and permanent
residence abroad, especially of naturalized citizens in the land of
their nativity, is prima facie evidence of an intention on their ])art
to relinquish the rights as well as the obligations of American
citizens.
"Our representatives abroad are instructed to inquire into the cir-
cumstances of each case of this character, and to use their best discre-
tion in the action taken by them."
Mr. Seward, Sec. of State, to Dr. Cliernhuck (Hospital Coltea, Bucharest,
Turkey), Au}?. 25, 18G8, 79 MS. Doni. Let. 2()L
A naturalized citizen of the United States who returns to his coun-
try of origin, and there marries, settles, and remains twenty years, is
not entitled to a passport as a citizen of the United States.
Mr. Rlaiue, Sec. of State, to Mr. Kasson, Mar. 31, 1881, MS. Inst. Aus-
tria, III. 145.
Wlien an Austrian subject, after being naturalized in the United
States, returns to his country of origin on a passport dated Jurie l7,
1881, and there resides four years, and then applies for a new pass-
port, such passport " ought not to be granted without proof that this
residence was meant by him to be temporary and exceptional," and in
048 PASSPORTS. [§ 517.
such case it would be jji-oper that the applicant should he personally
examined.
Mr. Bayard, Sot-, of State, to Mr. Lee, charKr, No. 11, Oct. 2, 1885, MS.
Inst. Austria-IIiniK. III. .30.3.
L., a Hunofarian by birth, emijrrated to the United States durinjj:
the political disturbances in Hungary in 1849-1850, and was duly
naturalized. He lived in the United States sixteen years, and then
returned to Hungary, where, after tAventy years of uninterrupted
residence, with apparently permanent employment, he aj^plied for a
passport as a citizen of the United States. His domestic relations
were established in Hungary and his children WHU'e born there. On
these facts, it was held that he presumptively was domiciled in Hun-
gary, and that, so long as this presumption was not rebutted, he
could not obtain a passport averring him to be entitled to the immu-
nities of a citizen of the United States.
Mr. Bayard, Sec. of State, to Mr. Lee, charge at Vienna, July 12, 1887,
For Rel. 1887, 23.
Sigismund Lowinsohn was born in Pressburg, Hungary, in 1851.
In 18()() he came to the United States, and, in 1872, on the day on
which he attained his majority, was naturalized. In the same month
he left the United States, and a few weeks later settled in Vienna,
where he continued to reside, Avhere he married and reared a family,
and where he was engaged in a lucrative business. In 1887, being
desirous of " registering the birth of a child," he applied to the
American legation for a passport, but refused to make any definite
statement as to the time of his return to the United States. Held,
that a passport was properly refused.
Mr. Bayard, Sec. of State, to Mr. Lawton, uiin. to Aust.-IIung., No. 14,
Deo. rt, 1887, For. Rel. 1888, I. 20.
" In the case of Mv. Felix Poyard, re})ortcd in your No. 083 of the
fith instant, a settled and continuous residence of thirty years in
France, the country of his origin, to which he had voluntarily re-
turned, and where he had made his domicil, would seem in all reason
to have indicated his abandomnent of his acquired American citizen-
ship, unless satisfactorily rebutted by 2)roof of special countervailing
circumstances. In that long period it does not appear that he had
performed any duty of an American citizen, although during a por-
tion of the time the resources of the (-ountry were strained to the
utmost; and yet, by a vague oral declaration of his intention at some
future time to return here, he is to be held entitled to all the privi-
leges and protection for which he has not rendered the slightest
equivalent.
§ 517.] • GROUNDS FOR REFUSAL, 949
" In all such cases I hold that very strict inquiry shall be instituted,
and if the French doniicil has been established, and the usual evi-
dence of a continuing intent to live and die in that country is found,
then there can be no pretext for certifying, by means of an American
passport, a correlative allegiance and protection which do not
exist. . . .
" It must not be forgotten that in such cases it is always in the
power of the api^licant, by a return to the United States, or by the
performance of some act affirmative of citizenship in this country, to
relieve his case of doubt.
" Neglect of rights and duties often involves loss, but the maxim
applies in respect of rights of citizenship as much as to other rights —
' vigilantihus non (lormfientihus suhven/ent jura.'' "
Mr. BayiU-d. Sec. of State, to Mr. Mol.ane, iiiin. to France, .Tuly 20, 1888,
For. Kel. 1888. I. r,rA.
Solomon IT. Ulmer, a native of Bavaria, came to the United States
in 184G, wdien 27 years of age. He was naturalized in 1853. In 1858
he returned to Bavaria, where he thereafter continued to reside. In
1888 he ap})lied for a passport to include his son, a native of Ger-
many, then 19 years of age, and subject to call for military service,
who, it was alleged, proposed to come to the United States " in the
course of one or two years." It was held that upon the facts stated
Mr, Ulmer had long since renounced his naturalization, imder the
terms of the treaty with Bavaria, and that he Avas not entitled to a
passport.
Mr. Bayard, Sec. of State, to .Mr. Coleman, cliarf;;e at Berlin. December 4,
1888, For. Bel. 1888, I. r,r,1.
J W , a native of Russia, came to the ITnitcd States in
1875, was naturalized in 1881, and throe months later returned to
Russia, Avhere he settled down as a farmer. Referring to the possi-
bility of his applying for a renewal of his passport, the Dej)artment
of State said: "He resided in the United States only a little more
than the period required for completing his naturalization. Out of
a life of 55 years he has spent only a little over 5 in this country.
Already the period of his residence in Russia since he returned
thither amounts to almost twice the whole aggregate of his residence
in the United States, In an opinion given by the Attorney-(ieneral
of the United States on August 20, 1873, there is the folhnving
passage: 'Naturalization eilVcted in the United States without an
intent to reside permanently therein, but with a view of i-esiding in
another country, and using such naturalization to evade duties and
responsibilities that would otherwise attach to the naturalized person,
ought to be treated by the Government of the United States as fraud-
950 PASSPORTS. [§ 517.
ulent, and as imposing upon it no ol)ligation to protect such person,
and as to this, tlie exocutive must judge from all the circumstances
of the case.' This opini(m seems to be directly applicable to the case
of J W ."
Mr. Blaine, Sec-, of State, to Mr. Smith, rain, to Russia, No. 79, Feb. 28,
1891, MS. Inst. Russia, XVI. r)9<J.
The fact that a person lived but a short time in the United States
after his naturalization, and that he had since resided for a period
of twenty years in the~counti-y of his origin, " seems to require proof
of bona fide conservation of his American status beyond his general
statement of an intent to return to this country within two years for
the purpose of fulfilling the obligations assumed by his naturaliza-
tion."
Mr. Wharton, Acting Sec. of State, to Mr. White, min. to Russia, March
2, 1893, For. Rel. 1893, 537.
" This Government does not discriminate between native-bom and
naturalized citizens in according them protection while they are
abroad, .equality of treatment being required by the laws of the
United States (Sees. 1999 and 2000 R. S.). But in determining the
question of conservation of American citizenship and the right to
receive a passport, it is only reasonable to take into account the pur-
pose for which the citizenship is obtained. A naturalized citizen who
returns to the country of his origin and there resides Avithout 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. His naturalization in the
United States can not be used as a cloak to protect him from obliga-
tions to the country of his origin while he performs none of the duties
of citizenship to the country which naturalized him. The statements
of loyalty to this Government which he may make are contradicted
by the circumstance of his residence, and are open to the suspicion of
being influenced by the advantages he derives by avoiding the per-
formance of the duties of citizenship to any country. It is not to be
understood by this that naturalized American citizens returning to
the country of their origin are to be refused the protection of a pass-
port. On the contrary, full protection should be accorded to them,
until they manifest an effectual abandonment of their residence and
domicil in the United States."
Mr. Hay, Sec. of State, to IT. S. dip. & cons, officers. Circular, March 27,
1899, Vov. Rel. 1902, 1.
§ 518.] GROUNDS FOR REFUS.\1,. 95l
(2) IN THIRD COUNTHY.
§518.
With regard to the passport application of a naturalized citizen
of the United States who went abroad immediately after his naturali-
zation and had resided in Russia for fifteen years, the Department
of State said : " There are tAvo points in Mr. W 's favor. Being
a Prussian by origin, the Government of Russia has no claim to
his natural allegiance, and the presumption of bad faith which
would spring from his immediate return to and indefinite residence
in the country of his nativity is wanting." The Dej)artment of
State, hoAvever, declined to direct the issuance to him of a passport
upon his statement that he desired it for further residence in Russia
and intended to return to the United States " as soon as circum-
stances will allow."
Mr. Blaine, Sec. of State, to Mr. Smith, min. to Russia, No. G3, Dec. 3,
1890, MS. Inst. Russia, XVI. (>75. See, also, same to same, No. 85,
March 19, 1891, id. 700, below.
M. F. W. was born in Prussia in 1847, came to the United States
in 1869, and was naturalized in 1874. He immediately afterwards
left the United States and appeared to have taken up his residence
in Russia, where he had resided since 1875. In 1890 he applied to
the American legation for a passport, stating that he desired it for
the purpose of further residence in Russia, and that it was his in-
tention to return to the United States " as soon as circumstances
allow," It appeared that he was cashier and bookkeeper to a Ger-
man firm and was a single man. It was held that on the facts stated
he was not entitled to a passport, and that he should communicate
to the Department of State the reasons, if any, Avhy a new passport
should be issued to him. In the course of its iiifitructions, the De-
partment of State said : " The laws of the United States unques-
tionably contemplate a permanent residence of the naturalized per-
son in this country. It is true that circumstances may require his
absence, precisely as they may require the absence of a native-born
citizen. On the other hand, naturalization acquired with a view to
live permanently abroad under the protection of the United States
is not hona fde and should not be treated as valid. The requirement
of a five years' uninterrupted residence in this country, prior to the
act of naturalization, is not understood to constitute a complete dis-
charge of all obligations to this country, and to absolve the person
who has so resided from the performance of any subsequent act of
allegiance."
Mr. Blaine, Sec. of State, to ^Ir. Smith, min. to Russia. No. 8."), March
19, 1891. MS. Inst. Russia. XVI. 700. See, also, same to same. No. 03,
Dec. 3, 1800, hi. G7.J, supra.
952 J>ASSPORts. t§Sl^-
L., a native of Hamburg, emigrated to the United States in 1862,
when 17 years of age, and resided there till 1868, when, having
become naturalized, he went to Russia where he had since uninter-
ruptedly resided. As to his future residence, he merely stated that
he intended to return to the United States " when able to." It was
held that this statement was " altogether too indefinite to be entitled
to serious consideration," and that when his alleged intention to
come to the United States was " corroborated by the fact of his
acquiring a residence or domicil here, which shall appear to be in
good faith," it would " then be proper to consider his claims for the
issuance of a passport."
Mr. Gresham, Sec. of State, to Mr. White, min. to Russia, March 24, 1893,
For. Rel. 1893, 538.
A. G., a native of Russia, emigrated to the United States in 1889.
He was naturalized July 24, 1894, and four months later left the
United States, taking with him a passport issued by the Depart-
ment of State. He apparently went directly to Hamburg, where he
entered his brother's bank, in which he was still employed. His
purpose of " continued indefinite residence " in Hamburg being stated
in his application, it was held that a passport was properly denied
him.
Mr. Olney, Sec. of State, to Mr. Silberman, Nov. 6, 1896, 213 MS. Dom.
Let. 595.
6. Statement as to Intention to Retuen.
§ 519.
In the general instructions in regard to passports, issued by the
Department of State May 1, 1886," it was directed that a naturalized
citizen applying abroad for a passport must state under oath that his
absence since his naturalization had been " such as not to work an
abandonment of his nationality " and that he expected " to return to
the United States as his domicil and final abode." The statement of
a definite intention as to return to the United States soon began to be
exacted of all applicants for passports — of native as well as of natu-
ralized citizens, and of applicants for passports in the United States
as well as abroad ; and a clause was inserted in the forms of applica-
tion to the effect that " I [the applicant] intend to return to the
« As has heretofore been pointed out, supra, § .503, these instructions are
printed in Wharton's Int. Law Dig. II. 469, but do not appear to be now of
record in the Department of State.
§ 519.] GROUNDS FOR REFUSAL, 953
United States , with the purpose of residing and performing
the duties of citizenship therein." «
This addition to previous requirements perhaps may be ascribed
to the temjiorary influence, which has heretofore been noticed,'' of the
suggestion that the conception of domicil might be so enhirged as to
comprehend political as well as civil relations and supplement if not
overshadow citizenship as the test of nationality. But, although the
suggestion itself soon fell into desuetude, it produced certain indirect
results, some of which, even if perpetuated by force of citation, may
be supported on other grounds. Since the requirement of a definite
statement as to return was established, it has naturally formed the
pivot on which the question of the effect of foreign residence has
turned.
Moritz Philipp Emden was born in Germany in 1820, emigrated to
the United States in 1849, and was naturalized in June, 1854. In the
following October he obtained a passport from the Department of
State, and in November sailed for Europe. He returned to the United
States in 185G and remained till January, 1859, when he again went
to Europe, where, with the exception of a few" brief visits, all prior to
1863, he afterwards resided. In 1881 Mr. Nicholas Fish, then Ameri-
can charge d'affaires at Berne, declined to renew his passport, and his
action was approved by Mr. Blaine, who was then Secretary of State.
The case continued to form the subject of correspondence till January,
1883, when instructions were obtained from Mr. Frelinghuysen to
Mr. Cramer, then American charge d'affaires at Berne, directing the
issuance of a passport to Mr. Emden, to embrace both him and his
wife and his two minor children. Mr. Cramer renewed this passport
in February, 1885, but declined to include in it Mr. Emden's two sons,
who had then attained their nuijority. In 1887 Mr. Winchester, then
American minister at lierne, declined to grant another renewal of
Mr. Emden's passport. Mr. Winchester's action was based largely
upon the ground that the only declaration made by Mr. P^mden with
regard to his return was that he intended to return " whenever busi-
ness requires my presence." In approving Mr. Winchester's action,
the Department of State said: "The Department expects that its
agents abroad, to whose discretion the issuance of passports is con-
fided, will exact unequivocal declaration of a ])ositive intent to return
to the United States, there to continue the domicil contemplated by
the statute and regulations. Business visits to the United States are
not evidence of domiciliary intent any more than business trips of
a See passport circular of Aug. 20, 1888, and the accompanying forms and
regulations. For. Rel. 1888, II. 1GG2.
6 Supra, § 491.
954 PASSPORTS. [§ 519.
American citizens to foreign countries evince an intent to reside
there."
Mr. Blaine, Sec. of State, to Mr. Fish, No. 203, April 1, 1881, MS. Inst
Switzerland, II. 84 ; Mr. Frelinghuysen, Sec. of State, to Mr. Cramer,
charge at Berne, No. 19, Jan. 12, 188.*i, id. 102; Mr. Winchester to
Mr. Bayard, April 21, 1887, For. Rel. 1887, 1003 ; Mr. Bayard to Mr.
Winchester, May 7, 1887, id. 1065.
A. C. A.Cranz applied to the American legation at Brussels, in 1886,
for a passport. It appeared that he was born in Germany in April,
1860; that he emigrated to America in September, 1877; that he
was naturalized in Boston in 1882 ; that he last left the United States
in December, 1883, and that in 1884 he was temporarily residing at
Brussels. His father lived in Austria, of which country he was a
subject, and the son w as associated with him in business. In his pass-
port application Mr. Cranz declared that he had no intention to re-
turn to the United States to reside, though possibly he might at some
time make a visit there, and that he desired the passport for the pur-
pose of residing in Europe. The refusal to issue him a passport was
approved.
Mr. Bayard, Sec. of State, to Mr. Tree, min. to Brussels, April 9, 1886,
For. Rel. 1886, 27.
A native of Prussia, born about 1820, emigrated to the United
States in 1857, and was naturalized in 1865. He returned to Euroj)e
in 1871 and was still residing there when, in 1887, he applied to the
American legation at Brussels for a passport. In his application he
declared that he was temporarily residing at Brussels, but that he
had " no fixed intention " of returning to the United States; that his
return would " depend on circumstances." The legation declined to
issue a passport and its action was approved, on the ground that the
applicant had been absent from the United States for .sixteen years
and had no fixed intention of returning at any time in the future.
Mr. Bayard, Sec. of State, to Mr. Tree, min. to Belgium, April 13, 1887, in
reply to Mr. Tree's No. 224, of March 28, 1887, For. Rel. 1887, 34, 38.
As to the abuse of American naturalization by persons maintaining a per-
manent foreign residence, see Mr. Tree to Mr. Bayard, April 8, 1887,
For. Rel. 1887, 37.
A passport should be " refused to a naturalized citizen residing
abroad who has no intention at present of returning to the United
States, and who is unable to state whether he will do so or not, or
when he may do so."
Mr. Bayard, Sec. of State, to Mr. Vignaud, charge at Paris, June 13, 1888,
For. Rel. 1888, I. 542.
§ '^l^.] GROUNDS FOR REFUSAL. 955
" Persons who have no intention of ever returning to the United
States, or, what is the same thing, who do not know their own minds
on the subject, are not, as you have been ah-eady instructed, entitled to
the evidence of protection by the United States which is afforded by a
}>assport. On the other hand, those who can not name a precise date
for their return are not necessarily to be denied the possession of such
evidence, for a distinction, w^hich should be carefully borne in mind,
exists between a fixed intention to return and an intention to return
at a fixed date. The existence of* the former state of mind must be
established by competent evidence, to your satisfaction, before you
may issue a passport; the existence of the latter intention is merely
cumulative evidence on the point. ...
" It is not to be understood that the Department in so instructing
you intends to introduce any novel doctrines or to extend its instruc-
tions in any respect beyond the precise point involved — the issuance
of passports by our legations abroad. While resolute in claiming
for domicil all the rights attached to it by the law of nations, this
Department is equally resolute in insisting that the term ' domicil '
should not be enlarged so as to make it convertible Avith ' residence.'
Important reasons may be assigned for this, which will at once sug-
gest themselves to you."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Oct. 29, 188S,
For. Rel. 1888, I. 5G1.
Mr. Frank R. Blackinton, a native citizen of the United States,
applied to the American legation in I^aris for a passport. He Avas
born in 1851, and left the United States in 1871, since which time he
had generally resided abroad. It appeared, however, that he had in
eighteen years been nine times in the United States, remaining for a
few months at a time; and he deposed that his domicil was in the
United States, and his legal residence in Massachusetts, where he had
always paid real and personal taxes. So far as these facts were con-
cerned, they Avere declared by the Department of State to indicate
that he was entitled to a passport, but, when required to fill up that
part of the application declaring an intention to return to the United
States with the purpose of residing and performing the duties of
citizenship therein, Mr. Blackinton replied " that at present I have
no plan, intention, or desire to do so." In view of this declaration,
the Department of State said: "The Department finds itself unable
to direct favorable action upon Mr. Blackinton's application. If the
Department had been left to gather this intention from antecedent
facts, it would have come to a different conclusion, although no posi-
tive statement as to his future residence in the United States had
been made; but it is superfluous to say that it is not admissible to
resort to such inference to attribute to a person an intention to per-
950 PASSPORTS. [§ 519.
form the duties of citizenship in the future, when he declares that
he has neither intention nor (h'sire to <h) so."
Mr. Blaine, Sec. of State, to Mr. Ueid, iniii. to France, No. 7(5, Dec. 2, 1889,
For. Rel. 1889, 1<».
See the similar case of II. C. Quinby, For. Rel. 1890, 3.*{5, 342.
"It is not the purpose of the Department to recpiire in all eases a
certain statement as to the time at which an applicant for a passport
intends to return to the United States. Various cases are conceivable
in which it would be impossible to make sui'h a statement in ^ood
faith, but in which the residence abroad would be entirely compatible
with the retention of allegiance to the United States. The important
object is, so far as possible, to ascertain the actual intention of the ap-
plicant, and for this i)urpose the statement made by him on the sub-
ject of return is not the only — and often not the most satisfactory —
source of information. It is not difficult to conceive of cases the cir-
cumstances of wdiich w^ould clearly forbid the extension of protection
to an applicant, although his declarations of allegiance and of inten-
tion to perform the duties of citizenship were strong and unquali-
fied. His whole previous course of conduct might conclusively
negative such a pretension. On the other hand, the good faith of
the applicant and his right to protection might be clear, notw^ith-
standing that he was unable to say that he would return to the United
States at a certain day. But, where no such statement is made, the
reasons for the omission should appear. The omission is one that
requires explanation, and under some circumstances the excuse would
have to be established by stronger evidence than under others. For
example, a youth approaching the age when he will be liable to per-
form military service, leaves his native country and comes to the
United States and is naturalized. Immediately after his naturaliza-
tion he returns to the country of his origin, and, wdien asked to de-
clare his intention in respect to return to the country of his adoption,
is unable to make any definite statement. Such a case would, upon
its face, require evidence of good faith of a very cogent character."
Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, No. ,50, Jan. 10,
1890, For. Rel. 1890, 300.
For instructions to investigate, in the ease of Bela Washington Foruet, the
question of intent to return, see Mr. Blaine, Sec. of State, to Mr.
Grant, min. to Austria-Hungary, March 2;"), 1890, For. Rel. 1890, 11.
H. L. B. applied to the American legation at The Hague in 1891
for a passport for himself and his son, a youth less than nineteen years
of age. It appeared that H. L. B. was born in the Netherlands in
1848, and that his father was naturalized as a citizen of the United
States in 1868. It also appeared that II. L. B. lived in the United
§ 519.] GROUNDS FOR REFUSAL. 957
States till he reached his majority, and that a year later he went to
Belgium, where, after residing there eighteen months, he married. He
then returned alone to the United States, remaining about a year, when
he went to Rotterdam, " where he established himself in business and
has continued to reside ever since." He had no i^roperty interests in
the United States, and with the exception of two brief visits had not
been there since he took up his residence in Rotterdam, No member
of his family had ever been outside of Europe. A\niile stating that
it was and ever had been his intention to return to the United States,
he admitted that he could not fix any definite time for so doing, but
indicated that his action would be governed by his business interests.
It appeared that he had had two passports, one in 1870 from the
American minister at Brussels, and the other in 1888 from the
American minister at The Hague. It was held that he was not
entitled on these facts to a passport.
Mr. Blaine, Sec. of State, to Mr. Thayer, uiin. to the Netherlands, No. 134,
Feb. G, 1892, MS. Inst. Netherlands, XVI. 109; INIr. Wharton, Act.
Sec. of State, to Mr. Thayer, No. 143, March 21, 1892, id. 118.
Julius C. Eversmann applied to the American legation in Berlin
in 1891 for a passport. He Avas born in Kentucky in 1842, of a
German father who lived in the United States from 1839 to 1846,
and who was said to have been naturalized, but of whose naturalization
no evidence was presented. In 1846 Julius, being then four years
old, was taken to Germany, where he lived for eighteen years. Ib
1864 he went to Mexico, where he resided fifteen years. In 1879 he
returned to Germany, where he had since lived. From 1886 to 1889
he held the office of vice-consul of the United States at Diisseldorf.
It was stated, with regard to his passport application, thfft, Avhile he
was willing to take the oath of allegiance, he frankly declared that
he could not comi)ly with the requirement as to stating an intention
to return to the United States, since as he had no purpose whatever
of doing so. It was held that, under the uniform ruHng of the
Department of State, this affirmation itself precluded the issuance to
him of a i)assport.
Mr. lilaine. Sec. of State, to Mr. Coleman, charge at Berlin, No. 3G6,
Feb. 17, 1892, For. Bel. 1892. 179.
See, also, Mr. Ilhl, Act. Sec. of State, to Mr. Ih-ersmauu, Dec. 1, 1893,
194 MS. Doni. Let. 429.
'Sigmund Ehrenbacher, the native American son of a naturalized
citizen of the United States, went abroad in 1879, at the age of twenty,
and settled in London, where he permanently engaged in business as
a hop merchant. In 1892 he applied to the American legation in
958 PASSPORTS. [§ 519.
London for a passport. When, in filling up his application, he came
to the point of declaring his intention as to returning to the United
States, he remarked that he intended to go back when he had made
money enough, which he hoped would be within ten years; but, w^hen
it was suggested that that time was remote, he said that he might
perhaps do it in five years, and asked that that time be inserted. In
a previous passport application, made in 1889, he stated that he in-
tended to return to the United States within " a few months." It
appeared that the hop business was established in I^ndon by the
father, w'ho left the United States ten years before the son and after-
wards took the latter into the business. On all the circumstances,
Mr. Lincoln, then American minister at London, expressed the opin-
ion that Sigmund Ehrenbacher had no definite intention of returning
to the United States, and that he was as " firmly settled in business "
in London " as any one ; " and the Department of State held that he
was not entitled to a passport. Subsequently, however, he made an
affidavit that he intended to open an office in New York during the
next year, and stated that this would make it necessary for him to
reside there frequently and for considerable periods, although, as he
did not contemplate closing his London office, he w^ould probably be
obliged often to return to London. In view^ of this affidavit and of
the fact that he was born in the United States and that his business
was the sale of American hops, the legation decided to issue him a
passport, declaring, however, at the same time, that its renewal two
years later would depend upon his having then " established his per-
manent home in the United States."
Mr. Lincoln, min. to England, to Mr. Blaine, Sec. of State, April 29, 1892 ;
Mr. Blaine to Mr. Lincoln, May 12, 1892 ; Mr. White, charge, to Mr.
Foster, Oct. 19, 1892 : For. Rel. 1892, 226, 227, 235.
" These requirements [as to the declaration of an inteut-ion to
return to the United States], while generally applicable to the cases
of native-born citizens indefinitely sojourning abroad under cir-
cumstances creating a presumption of abandonment of their Ameri-
can domicil and status, are particularly necessary in respect to
naturalized citizens quitting this country after acquiring citizenship,
and especially to such as take up residence in the land of their
original allegiance."
Mr. Foster, Sec. of State, to Mr. Denby, min. to China, No. 737, July 18,
1892, For. Rel. 1892, 124.
Fielder J. Hiss was born in the United States in 1851, of American
parentage. In 1898 he applied to the American legation in London
for a passport. He stated that his domicil was in London, where
§ 519.] GROUNDS FOR REFUSAL, 959
had resided with his family since April 1892 ; that he was engaged
in business there as treasurer and general manager of an English
company ; and that he had no intention to return to the United States
to reside or perform the duties of citizenship. It was held that he
was not entitled to a passport.
Mr. Greshain, Sec. of State, to Mr. Bayard, ambass. to England, No. 154,
Oct. 9, 1893, For. Rel. 1893, 329.
In the case of a minor, fourteen years old, a citizen of the United
States, who had gone abroad as a servant to a Russian, with an in-
tention of remaining five years, it w as said : " In the case of a minor
satisfactory proof of intent to return to the United States before or
on obtaining majority may be accepted, even though the intended
sojourn abroad may exceed two years."
Mr. Uhl, Act. Sec. of State, to Mr. White, amb. to Russia, No. 160, Feb.
7, 1894, For. Rel. 1894, 5G1, 502.
H., a native of the United States, who was born in Texas in Febru-
ary 18G1, left the United States with his father in 18G6 and there-
after continued to reside in Mexico. He stated that his residence
there was temporary, but made no declaration of intention to return
to the United States. Held, that as he had permitted eleven years to
elapse since he came of age without taking steps to resume his original
domicil, and as he gave no satisfactory f)roof of his intention and
ability to do so at any future time, a passport should not be issued.
Mr. Gresbam, Sec. of State, to Mr. Gray, miu. to Mexico, Feb. 10, 1894,
For. Rel. 1894, 411.
On the ground that F. had resided continuously in Germany since
he was five years of age, a period of twenty-six years; that he did
not elect American nationality when he became of age ; and that the
intention expressed in a passport application in 1891, that he in-
tended to return to the United States within two years, was not ful-
filled, it was held that he was not entitled to a passport.
Mr. Gresbam, Sec. of State, to Mr. Harris, June 2, 1894, 197 MS. Doni.
Let. 223.
See Mr. Adee, Acting Secretary of State, to Mr. Thompson, minis-
ter to Brazil, August 8, 1895, briefly discussing various cases, in some
of which passports had been issued and in others of which passports
had been declined, the question involved being that of an intention to
return to the United States.
For. Rel. 1895, I. 71-72,
960 PASSPORTS. [§ 519.
Solomon Faden, born in Hungary in 1870, went to the United
States at the age of sixteen, remained there five and a half years,
and was naturalized September 17, 1891. He obtained a passport
from the Department of State, September 30, 1891, upon an applica-
tion declaring an intention to return to the United States in two
years, there to reside and to perform the duties ^f citizenship, and
went back to his native country. Two years later, in October 1893,
he obtained a new passport from the United States legation at
Vienna upon an application containing a similar declaration. Two
years later, his passport having again expired, he applied for a
renewal of it. It appeared that he had never voted in the United
States, nor paid taxes there, nor had any connection with it in
business. Since he obtained the second passport in 1893, he had
married a native girl with some money, had purchased a business in
his native town, and had apparently settled there to rear a family.
With regard to returning to the United States, he said that " if his
business does not go, he may try his luck in America." The lega-
tion declined to issue another passport. Its action was approved,
the Department of State saying that as the application on which a
new passport was obtained in 1893 " contained a positive declaration
to return to the United States within two years to perform the duties
of citizenship, it would require now very conclusive proof of his de-
termination to so return in order to issue him a third passport. The
facts you state, however, conspicuously negative any such purpose
of return." In conclusion, the Department of State said:
" For some years the Department has in special cases, upon the
repeated application for renewal of passports, directed that the ap-
plicant be warned that the declaration of intention to return to the
United States is not an empty phrase, and that in the case of a
further renewal being sought withholdment of a passport would
probably follow. You do not state whether any such warning was
given to Mr. Faden, but his case does not seem sufficiently meritorious
to invite the Department to stretch its custom in this regard. Both
on the presumption and the facts he may be deemed to have volun-
tarily repatriated himself, and if he has not actually resumed Aus-
trian allegiance in conformity with the laws of that country, he has
at least voluntarily abandoned practical allegiance to the Govern-
ment of his acquired nationality to such an extent as to absolve it
in return from the duty of protecting him while he maintains in-
definite and apparently permanent domicil in the land of his birth."
Mr. Olney, Sec. of State, to Mr. Towusend. cliai-ge at Vienna. Oct. 31,
1805, replying to a despatch of Mr. Towusend of Oct. 14, 1895, For.
Rel. 1895, I. 22-24.
§ 519.] GROUNDS FOR REFUSAL. 961
Two persons, natives of the United States, applied to the legation
at Buenos Ayres for passports. It appeared that they still owned
property in California, which they occasionally visited, but that
their property interests in the Argentine Republic were so much
greater that they admitted that they could not reside permanently in
the United States nor could make any statement of a definite character
regarding their intention to return to that country. They were not
engaged in trade with the United States. It was held that they were
not entitled to passports.
Mr. Olney, Sec. of State, to Mr. Buchanan, min. to the Argentine Repub.,
No. 101, Nov. 8, 1895, MS. Inst. Argentine Repub. XVII. 143.
The declaration of intention to return " does not require a state-
ment of a fixed date of return, but the manifestation of a fixed inten-
tion to return within some reasonable time, which intention shall not
be conspicuously negatived by the circumstances of the foreign domi-
cil of the declarant."
Mr. Olney, Sec. of State, to Mr. Thompson, min. to Brazil, Nov. 12, 1895,
For. Rel. 1895, I. 74.
" The action of the Department in regard to the issuance of pass-
ports, and the limitation which its rules impose on such issuance in
a foreign country or by the Department, do not rest on any precise
inhibition by legislation, but are in the exercise of the discretion
which the statute confers upon the Secretary of State, who ' may '
issue such passports to citizens of the United States.
" In naturalization treaties between governments, a provision is
commonly found to the effect that the return of a naturalized person
to his native country and residence therein for two years may be
taken as creating a presumption of intention not to return to the
country of adoption. It is also a very general principle of interna-
tional law, applied in practice by many states, that withdrawal from
the country of allegiance, for a number of years or indefinitely, oper-
ates as a renunciation of citizenship or of the right to protection as a
citizen while so failing to perform the duties of citizenship.
"For these reasons it has been found necessary to require of all
ai^plicants for passports a formal declaration of intention to return
to the United States here to reside and perform the duties of citizen-
ship, and the validity of a passport issued is limited to two years.
If, upon applying for its renewal, the party, being still abroad, is
unable to satisfy the issuing authority of his or her purpose to return
to the United States, the question of issuing a passport for indefinite
residence abroad necessarily arises, to be determined according to the
facts of each case. ... In issuing passports to parties in the
H. Doc. 551— vol 3 61
962 PASSPORTS. [§ 519.
United States for purposes of foreign travel, the Department does not
exact a declaration of intention to return within a definite term, but a
declaration of definite intention to return within some reasonable
time."
Mr. Olney, Sec. of State, to Mr. Anderson, Nov. 21, 1896, 214 MS. Dom.
Let. 95. " The authority for requirhig from an applicant for a pass-
port a dechiration of intent to return to the United States is found
in section 4075, Revised Statutes, which gives the President author-
ity, acting through the Secretary of State, to designate and prescribe
the rules governing the issuance of passports." (Mr. Rockhill, Assist.
Sec. of State, to Mr. Ward, Jan. 27, 1897, 215 MS. Dom. Let. 430.)
A. A. W. applied to the American legation in St. Petersburg in
1897 for a new passport for himself, his wife, and four minor chil-
dren. He was a native of the United States, but had been continu-
ously absent from the country since 1867. He had previously ob-
tained a passport from the legation in 1895, and on that occasion
declared his intention to return to the United States. AVlien asked
in 1897 why this intention had not been carried into effect, he stated
that he had been prevented from so doing by illness, and that he was
" now saving money for the trip." Under the circumstances, the
good faith pf this declaration was questioned, and it was held that he
was not entitled to a passport.
Mr. Sherman, Sec. of State, to Mr. Breckinridge, min. to Russia, No.
403, April 20, 1897, MS. Inst. Russia, XVI L 5(57.
Where a naturalized citizen of the United States had withdrawn
himself for 26 years from the country of his adoption and resided for
most of that time in the country of the origin of his wife, and had ob-
tained previous passports on declarations of intention to return to
the United States, which had not been fulfilled, it was held that
" very positive proof " of an actual intention to return to the United
States would be required to overcome the presumption that he had
" long abandoned the right to protection while residing abroad."
:Mr. Sherman, Sec. of State, to Mr. Storer, min. to Belgium, Nov. 10, 1897,
For. Rel. 1897, 31, 32.
Henry Louis Becker, a native of Holland, emigrated with his
father in 1858 to the United States, where, during his minority, his
father was naturalized. In May, 1893, being then thirty-five years of
age, the son obtained a passport and went to Belgium. In March,
1896, he obtained a new passport from the United States legation at
Brussels. In January, 1899, he applied for yet another passport, his
previous one having expired in ISIaroh, 1898. In obtaining the pass-
j)ort in 1896 he signed the usual application containing a declaration
of intention to return to the United States within two years. A
§ 519.] GROUNDS FOR REFUSAl.. 963
question having been raised by Mr. Storer, American minister at
Brussels, as to whether a new passport should be issued, the Depart-
ment of State said : " It does not appear . . . that Mr. Becker was
warned by your predecessor at the time of the issuance of the lega-
tion passport, March 19, 189G, that failure to return within the
declared term of two years might bar renewal of the passport.
T/nder the circumstances, if Mr. Becker shall satisfactorily explain
ihe causes preventing the execution of the purpose declared by him
in 1896, and shall satisfy you of the bona fides of his intention now
to return within two years hence, here to dwell and perform the
duties of good citizenshii), you would be warranted in issuing him a
passport accompanied by a distinct warning that failure to carry out
that intention would prejudice, and probably bar, the granting of
any future passport to him while he continues to dwell abroad."
Mr. Hay, Sec. of State, to Mr. Storer, inin. to Belgium, Feb. 4, 1899, For.
Rel. 1899, 84, 85.
In reply, Mr. Storer made a renewed presentation of the case, call-
ing attention to a letter of the Department of State Avhich was widely
noticed in the journals in Europe in November, 1898, and which
seemed to lay dowm the rule that where the individual had failed to
give effect to the declaration made in his application of an intention
to return to the United States within two years, a satisfactory expla-
nation must be given of his failure to do so, as well as satisfactory
evidence of a bona fide intention not again to be chargeable with a
similar omission. Mr. Storer further said : " The precise point in
the present case ^. . . Avas whether, having in view this statute,
§ 2172 [R. S.], anyone made American citizen solely by the naturali-
zation of his father, continuously living in Europe since his return
thither with his family, who has founded a manufacturing association
under the laws of a foreign country, in the name of which he carries
on business, could for himself and his family continue to renew the
protection of a United States passport ? . . . The remark of your
instruction, that it nowhere appears the applicant Avas warned by my
predecessor in March, 1896, that a failure to carry out his sworn
intention might bar a renewal of his passport, is absolutely correct,
but I submit that two years hence, when he again ap})lies for protec-
tion from the operation of the laws of Belgium, it will nowhere
appear that this Avarning Avas given him by me in 1899, and precisely
the same responsibility and doubt Avill then be throAvn on this lega-
tion then that is now sought to be settled once for all by Dei^art-
mental instruction." MeauAvhile a ncAv passport Avas not issued.
Mr. storer, inin. to Beljriuin, to Mr. Hay, Sec. of State, Feb. 21, 1899,
For. Rel. 1899, 80.
9G4 PASSPORTS. [§ 519.
In a further instruction the Department of State said : " The con-
flicting statements as to Mr. Becker's domicil in the United States
which you rc^jort, the hick of evidence of his purpose to return here
to dwell, and the apparent inconsistency of the conditions of his
indefinite residence abroad, and of his founding a manufacturing
establishment under foreign laws with the holding of a bona fide and
I'ealizable i:)urpose on his part so to return and discharge the duties
of citizenship, seem to warrant your withholding the renewal to him
of a passport." It was further stated that the letter to which the
legation referred was one addressed to Mr. F. Clarke, in Paris, under
date of November 4, 1898, in which it was stated that " the best evi-
dence of the intention of an applicant for a passport to discharge the
duties of a good citizen is to make the United States his home; the
next best is to shape his plans so as to indicate a tolerable certainty of
his returning to the United States within a reasonable time. If the
declared intention to return be conspicuously negatived by the circum-
stances of sojourn abroad a passport may be w^ithheld."
Mr. Hay, Sec. of State, to Mr. Storer, ruin, to Belgium, March G, 1899, aud
Mr. Hill, Assist. Sec. of State, to Mr. Clarke, Nov. 4, 1898, For. Kel.
1899, 87, 88.
" It has been the consistent ruling of the Department that the dec-
laration by an applicant for a jjassport of intention to return to the
United States does not require a statement of a fixed date of return,
but the manifestation of a fixed intention to return within some rea-
sonable time, which intention shall not be conspicuously negatived by
the circumstances of the foreign domicil of the claimant. The domicil
of a person depends upon his intention, which is to be determined upon
all the facts of the case. The Department is alwaj^s well disposed
toward those Americans, whether by birth or naturalization, who
sojourn abroad in representation of American commercial interests."
Mr. Hay, Sec. of State, to Mr. White, charge at Londou, Feb. 23, 1899, For.
Kel. 1899, 340.
This was a reply to a dispatch from ^Ir. White, euciosiug a letter from ]Mr.
Van Duzer, secretary of the American Society in London, suggesting
that Americans sojoui'ning abroad" be not compelled to declare in
applications for passports an intention to return to the United States
to take up the duties of citizenship within two years. Mr. White
added that the declaration to that effect, embodied in the form which
applicants for a passport are compelled to sign, undoubtedly operated
occasionally to prevent the issuance of passi)orts to bona fide native-
born Americans who paid taxes often to a large amount at home, but
who, on account of Imsiness, healtli, or other cause, wei'e unable to
remain in the United States. (For. Rel. 1899, .339.)
Edward Klipfel, a naturalized citizen of the United States, de-
clared in his application for a passport that he had " no idea of
§ 519.] GROUNDS FOR REFUSAL. 965
returning to the United States.'' It appeared that he left the United
States in June, 1898, after residing there 10 years, and that he had
three minor children who were born in the United States. It was
held that Mr. Klipfel could not " expect to receive the protection that
a passport affords when he manifests no intention of performing the
duties of a citizen of the United States ;" but that this did "not deprive
his children, who were born in this country, and have been taken
aw^ay by him, of their right to our protection until they reach their
majority and may elect an allegiance of their own;" and that the
legation should, if called upon to do so, " recognize them as citizens
of the United States."
Mr. Hay, Sec. of State, to Mr. Leishman, mln. to Switzerland, July 3,
1899, For Rel. 1899, 761.
"A condition precedent to the granting of a passport is, under the
law and the rules prescribed by authority of the hiAv, that the citi-
zenship of the applicant and his domicil in the United States and
intention to return to it with the purpose of residing and performing
the duties of citizenship shall be satisfactorily established. One wdio
has expatriated himself can not, therfore, receive a passport. [Here
follows Mr. Fish's definition of expatriation, supra, p. 712.] But
even where expatriation ma}' not be established, a person who is
permanently resident and domiciled outside of the United States
can not receive a passport. ' When a person icho has attained his
inajority removes to another country and settles himself there, he is
stamped with the national character of his new domicil; and this is
so, notwithstanding he may entertain a floating intention of return-
ing to his original residence or citizenship at some future period, and
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' (Mr. Fish to the President, For.
Ivels. 1873, IISC), et seq.). If, in making application for a passport,
he swears that he intends to return to the United States within a
given period, and afterwards, in applying for a renewal of his pass-
port, it appears that he did not fulfill his intention, this circumstance
awakens a doubt as to his real purposes, which he must dispel (For.
Kels. 1890, 11).
" The treatment of the individual cases as they arise must depend
largely upon attendant circumstances. When an applicant has com-
pletely severed his relations with the United States; has neither
kindred nor projierty here; has nuirried and established a home in
a foreign land ; has engaged in business or professional pursuits
wholly in foreign countries; has so shaped his plans as to make it
impossible or improbable that they will ever include a domicil in this
country — these and similar circumstances should exercise an adverse
•9G6 PASSPORTS. [§519.
influence in determining the question whether or not a passix)rt
should issue. On the other hand, a favorable conclusion may be
influenced by the fact that family and property connections with the
United States have been kept up; that reasons of health render travel
and return impossible or inexpedient; and that pecuniary exigencies
interfere with the desire to return. But the circumstance which is
perhaps the most favorable of all is that the applicant is residing
abroad in representation and extension of legitimate American
enterprises."
Mr. Hay, Sec. of State, to U. S. Dip. & Cons. Officers, Circular, March 27,
1899, For. Rel. 1902, 1.
" Information having reached the Department that some of the
diplomatic and consular officers of the United States have refused to
issue passports to applicants who were unable or unwilling to state
that they intended to return to the United States within two years
from the date of their applications, you are instructed that the De-
partment does not hold that a passport can not be granted to a person
who does not make such a statement. As explained in the Depart-
ment's circular instruction of March 27, 1899, a passport should not be
issued to any person who does not intend to return to the United
States, or whose expressed intention to return is negatived by circum-
f^tances attending his residence abroad ; but it is not intended to fix a
definite period of time beyond which the protection of a passport is to
be refused to a citizen of the United States. A passport is good only
for two years from the date of issuance, but a new one may be granted
wdien a new and satisfactory application is made."
Mr. Hill, Act. Sec. of State, to U. S. Dip. & Cons. Officers, Circular, Sept.
26, 1899, For. Rel. 1902, 4.
In an instruction to diplomatic and consular officers, Jan. 17, 1902,
it is stated that the Department of State " has from time to time re-
ceived complaints from persons sojourning abroad that they have
been refused passports because they were unable to state definitely
when they intended to return to the United States." Kenewed atten-
tion is therefore directed to the circulars of March 27 and Sept. 26,
1899, " so that no one who has effectually expatriated himself from
the United States shall receive the protection which he has forfeited
a right to expect, and, on the other hand, no one shall be denied pro-
tection who is a loyal American citizen not permanently and volun-
tarily absent from this country."
Mr. Hay, Sec. of State, Circular, Jan. 17, 1902, For. Kol. 1902, 1.
The circular of March 27, 1899, is printed in For. Uel. 1902, 1 ; and that of
Sept. 20, 1899, id. 4.
§ 520.] GROUNDS FOR REFUSAL. 967
7. Connection with American Business Interests.
§ 520.
Solomon M. Pollock emigrated to the United States in 1875, was
naturalized in 1882, and left two days afterwards for Switzerland,
where he had since resided as agent for the firm of Leon, Levy &
Brothers, of New York and San Francisco. In 1887, when applying
to the American legation at Berne for a passport, he said that he was
unable to state when he would return to the United States; that his
stay depended on the time when his firm might recall him, and that
they might do so within the next six months, or might not do so for
years. The legation was instructed :
" If you are fully satisfied that Mr. Pollock is actually detained
abroad by his employment as the agent of an American firm trans-
acting business in the United States, and if he declares it to be his
intention upon the termination of such employment and agency to
return to the United States there to reside and take upon himself the
duties of such citizenship, then you can issue to him a passport in
accordance with the principles laid down in this Department's in-
structions to you. No. 102, of the 13th instant."
Mr. Bayard, Sec. of State, to Mr. Winchester, miu. to Swltz., No. 104, Oct.
24, 1887, For. Rel. 1888, II. 1500.
The fact that an applicant for a passport is " engaged in business
in the country of his residence . . . may have importance, in
opposite directions indeed, in connection with all the other facts. An
American, whether by birth or naturalization, residing abroad, in rep-
resentation of an American business, and keeping up an interested
association with this country, is in a different case from an alien who
returns, immediately after naturalization, to his native place, there to
engage in a local calling and, it may be, marrying there and exhibit-
ing every evidence of an intention to make his home among his
kindred. In the latter instance it would require strong proof to
countervail the prima facie presumption that his naturalization was
obtained solely to enable him to dwell thereafter in his native land
without subjection to the duties and burdens of native citizenship."
Mr. Blaine. Sec. of State, to Mr. Grant, niin. to Austria-Hungary, Marcli
25, 1890, For. Kel. 1800, 11, 12.
" I have received your No. 48, of the 19th ultimo, stating that, in
view of the uncertain condition of affairs in the Argentine Republic,
numerous applications for passports will be, in all probability, made
to the legation by citizens of the United States long domiciled in
that country and who are engaged in trade or other occupations.
You further state that these persons have never assumed ^Vrgentine
968 PASSPORTS. [§520.
allegiance, regard themselves as American citizens, and declare it to
be their intention to return at some time to the United States. You
add that the blank forms of application for passports seem to exclude
such cases.
" The Department is of opinion that legitimate association in bus-
iness enterprises connected with commerce between the United States
and the country of residence of the person claiming American citi-
zenship, Avhile entailing protracted and indefinite sojourn abroad, is
not incompatible with an intent to return; but such intent must
satisfactorily appear. The blank forms contemplate the statement
of facts evidencing, of themselves, a retention of United States domicil,
but where those facts do not exist, the intention to return some time
must be satisfactorily established otherwise, and not be obviously
negatived by the circumstances of residence abroad."
Mr. Blaine, Sec. of State, to Mr. Pitkin, min. to Arg. Rep., No. 52, May 26,
1890, For. Rel. 1890, 3.
See, also, Mr. Blaine, Sec. of State, to Mr. Lincoln, min. to England, No.
219, March 24, 1890, For. Rel. 1890, 328.
" By active representation of American business interests abroad,
and identification with affairs in this country, proof of retention of an
American status may exist independently of intention to return hither
at a fixed time."
Mr. Blaine, Sec. of State, to Mr. Smith, min. to Russia, J?o. 63, Dec. 3,
1890, MS. Inst. Russia, XVI. 675.
See, also, Mr. Blaine, Sec. of State, to Mr. Ryan, April 9, 1892, MS. Inst.
Mexico, XXIII. 203.
With regard to Mr. Blaine's instructions to Mr. Pitkin, minister to
the Argentine Republic, of May 26, 1890, supra, it is to be observed
that there is an evident difference between residence abroad in repre-
£?entation of a distinctively American industry or business having its
origin and headquarters in the United States, and the building up of
an industry in Europe which merely seeks an incidental market in
the United States.
Mr. Blaine, Sec. of State, to Mr. Thayer, min. to the Netherlands, No. 134,
Feb. 6, 1892, MS. Inst. Netherlands, XVI. 109; Mr. Wharton, Act.
Sec. of State, to Mr. Thayer, No. 143, March 21, 1892, id. 118.
Being engaged in foreign lands in trade with the United States is
a reason for making an exception to the rule requiring an applicant
for a passport to show his intention to return to and reside in th«
United States.
Mr. Gresham, Sec. of State, to Mr. Ruuyon, November 1, 1894, 19 MS.
Inst, to Germany, 154.
§ 520.] , GROUNDS FOR REFUSAL. 969
" Referring to 17G Appendix to AVharton's Digest of International
Law, it appears to be the policy of the Department to recognize the
claims to protection of agents of American commercial establishments
in foreign countries who, by peculiar qualifications, are useful in pro-
moting our mercantile relations, in spite of long-continued absence
from the United States.
" It is extremely desirable for the extension of our commercial rela-
tions with Russia that the services of American citizens, speaking
the Russian language and familiar with the country, should be avail-
able to promote the interests of our producers at home, as agents, or
in such other capacity as circumstances may require. To require that
the connection of such agents or employees should be limited to two
years, or any other brief term, would seriously impair their usefulness.
" Upon this principle it was the practice of my predecessor to grant
passports to agents for American commercial and industrial enter-
prises in Russia.
" While recognizing the desirability of continuing this practice, and
desiring a distinct ruling of the Department authorizing its continu-
ance, I desire also to call your attention to certain cases, some of
which, while technically coming within this category, are in fact little
more than evasions of the Department's rulings, while, if the volume
of business done is to be a standard, others would at present lie out-
side of the category, although in the near future they might come
well within it. . . .
" With the earnest desire that our j^romising and growing commer-
cial interests with Russia may have the fullest measure possible of
that assistance which bona fide endeavors of American citizens here
can render, and this Avithout applying to infant commercial enter-
prises a test of present volume of business, where that might be
unjust, I still desire to eliminate abuse of the continued protection
accorded to American citizens by persons who use the color of such
occupation to evade the rulings of the Department regarding aban-
donment of citizenship."
Mr. Hitchcock, amb. to Russia, to Mr. Day, Soo. of State, May 10, 1898,
For. Rel. 1898, 53.3.
" You evidently have a correct understanding of the policy of the Depart-
ment with regard to the issuance of passports to persons indefinitely
residing abroad, and the Department feels that it may he safely left
to you to deal with each individual case in your discretion." (Mr.
Day, Sec. of State, to Mr. Hitchcock, amb. to Russia, June 3, 1898,
For. Rel. 1898, 535, 536.)
H., a citizen of the United States, had resided in St. Petersburg
since 1875. He was in the employ of the fii m of W. Ropes & Co., an
American commercial house, and acted as the manager of its business
970 PASSPORTS. [§ 520.
ill Ivussia. Tlie (Miibassy of the United States at St. Peter.sr)iir«r in
1898 granted him a new passport " upon the strength of his connec-
tion with Ropes & Co., and his statement of their real purpose to
reanimate their commercial undertakings between the United States
and Russia," their business with Russia, which was once hirge, having
been allowed to become " little more than a name."
Mr. Hitclieoc-k, iunb. to liussin, to Mr. Day, See. of State, May 10, 1808,
For. Rel. 1898, r.:«, r>:'A, approved by Mr. Day, Sec. of State, to Mr.
Hitchcock, amb. to Rus.sia, June 3, 1898, id. 5.%, 536.
Certain citizens of the United States, apparently permanent resi-
dents of Russia, claimed a renewal of their passj^orts on the ground
that they acted as the agents in Russia of certain German representa-
tives of American manufacturers.
The disposition of the applications was left to the discretion of the
United States embassy at St. Petersburg, with the statement that the
Department of State was " scarcely prepared to recognize " the right
of the persons in question.
Mr. Day, Sec. of State, to Mr. Hitchcock, aiub. to Russia, June 3, 1898,
For. Rel. 1898, 535.
" It has been and should continue to be the policy of the Govern-
ment to foster and promote the manufacturing and commercial inter-
ests of the United States, and to that end, in the case of bona fide
agents and representatives of American interests, the rules usually
applied to our citizens in respect to residences are relaxed. Of course,
mere technical compliance with the requirements in these exceptional
cases is not sufficient. If you feel satisfied that the party ajiplying
for protection is not actually and in good faith representing Ameri-
can interests, then it is your duty to refuse to grant a passport. The
extent of business done, while sometimes an important factor, should
not be considered the sole criterion in judging of the good faith of the
party."
Mr. Day. Sec. of State, to Mr. Hitchcock, amb. to Russia, June 3, 1898,
For. Rel. 1898, 535, .536.
R., a naturalized citizen of the United States, resided at Moscow
fifteen years, practicing as a dentist. During that time he obtained
various passports, in each case upon an application in which he de-
clared his intent to return to the United States, there to perform the
duties of citizenship. The United States embassy at St. Petersburg
having at length refused to renew his passport, he requested protec-
tion for at least six months. The embassy agreed to grant it, only on
condition that he declare on oath his intention to return to the United
States within that time. He claimed to be an agent for the sale of
§ 521.] MISSIONAEIES. 971
American dental instruments in Russia, but it did not appear that he
had made any sales. The decision of the embassy was approved.
Mr. Day, Sec. of State, to Mr. Hitchcock, amb. to Russia, June 23, 1898,
For. Rel. 1898, 540.
M., a citizen of the United States, resided for years in Moscow,
engaged in the practice of dentistry. In time he ostensibly became
the agent of an American gun company and an American clock com-
pany. On the ground that these agencies were a cloak under which
to evade the rule as to the effect of permanent foreign residence, it was
decided not to renew his passport unless he should give " conclusive
evidence of a real intent, supported by acts, to return to the United
States, there to reside and perform the duties of citizenship."
Mr. Day, Sec. of State, to Mr. Ilitclicocli, aml>assador to Russia, June 23,
1898, For. Rel. 1898, 540.
See, in relation to this case, Mr. Adee, Second Assist. Sec. of State, to
Mrs. Siegel, Nov. 8 and Nov. 11, 1897, 222 MS. Dom. Let. 284, 302;
Mr. Sherman, Sec. of State, to Mr. Hitchcock, amb. to Russia, No. 8,
Dee. 22, 1897, 17 MS. Inst. Russ. 052; Mr. Hay, Sec. of State, to Mr.
Tower, amb. to Russia, No. 125, Feb. 12, 1900, 18 MS. Inst. Russia, 252.
The Department of State, in its application of the rule requiring of
an applicant for a passport, not indeed " a statement of a fixed date
of return, but the manifestation of a fixed intention to return,
within some reasonable time, which intention shall not be conspicu-
ously negatived by the circumstances of the foreign domicil of the
claimant," is " always well disposed towards those Americans, whether
by birth or naturalization, who sojourn abroad in representation of
American commercial interests."
Mr. Hay, Sec. of State, to Mr. White, charge at Loudon, No. 1095, Feb. 23,
1899, MS. Inst. Gr. Br. XXXIII. 97.
8. Missionaries.
§ 521.
The Rev. Hugo Praessar was born in Germany in 1833, emigrated
to the United States in 1868, and was naturalized in September, 1876.
Three days later he obtained a passport and went to Europe. He
subsequently paid several visits to the United States, on one occasion
remaining more than two years. He last left the United States in
1883. His occupation was that of a missionary priest. In 1889 he
applied to the American legation in Vienna for a passport, stating
that it was his purpose to take charge of a convent in Roumania for
the larger part of the next two years, and then to return to the Ignited
States. The Department of State said: " It is thought that the ab-
sence of Mr. Praessar from the United States is satisfactorily ex-
plained on grounds consistent with the retention by him of the
972 PASSPORTS. [§ 521.
charactor of an American citizen. The nature of his labors renders
the phice of his residence uncertain and changeable, and tends to
negative the inference Avliich ordinarily might be drawn from a
prolonged absence froni the United States. The Department is,
therefore, pf opinion that it is proi)er to issue him a passport."
Mr. Blaine, Sec. of State, to Mr. Grant, luin. to Austria-Hungary, No. 42,
Jan. 22, 1890, MS. Inst. Austria-Hungary, III. 52r..
" In respect to American-born citizens, residing abroad as mission-
aries in the employ of an American society, the Department is dis-
posed to relax some of the requirements as to domicil and fixity of
intention to return to the United States as defined in the application
blanks."
Mr. Foster, Sec. of State, to Mr. Newberry, No. 357, July 21, 1892, MS.
Inst. Turkey, V. 3G9.
The instructions of the Department of State in relation to the
passport applications of American missionaries in China, as well as
in other countries where the United States exercises extraterritorial
jurisdiction, " have taken the ground that the vocation of the mis-
sionaries employed by societies established in the United States may
not admit of any very positive declarations of intention to return to
the United States," but that " some declaration of a more or less
floating or indefinite character," " displaying the intent to return, is
necessary." The Department " can not authorize the issuance of a
passport upon any declaration tantamount to the expression of an
intention not to return." But it was held that a declaration might
be made in the following form : " I was, before coming to China,
domiciled at , in the United States, and I have not assumed
any other legal domicil, but I have come to China to engage in mis-
sionary work under the auspices of , a society organized and
residing at , in the United States."
With regard to this declaration, for use in China, the following
explanation was made:
" This declaration may be accepted equally well from a naturalized
citizen as from a native. As a Chinaman can not be naturalized in
the United States, the deduction naturally following return to and
continued domicil in the country of origin can not exist within your
jurisdiction."
Mr. Adee, Act. Sec. of State, to Mr. Denby, inin. to China, No. 1470. July
20, 1897, MS. Inst. China, V. 4(50.
See Mr. Foster, Sec. of State, to Mr. Denby, niin. to China, No. 737, July
18, 1892. For. Rel. 1892, 124.
" I have to acknowledge the receipt of your dispatch. No. 283, of
the 28th of November, inclosing passport application of Logan Her-
§ 521.] MISSIONARIES. ^73
bert Hoots and Oliver Tracey Logan, medical missionaries, which you
lifh-e declined to grant on the ground that they do not state intention
to return to the United States, but, on the contrary, expressl}^ state
iheir expectation to remain permanently in China, and also inclosing
correspondence with the United States consul at Hankow on the sub-
ject, showing a difference of views between your legation and the
consulate as to the propriety of issuing the passports in question under
the Department rules,
"A late instruction, which is applicable to the case luider discus-
sion, may be found in that paragraph of the Departmenfs circular
instruction of March 27, 1899, reading:
" ' The status of American citizens resident in a semibarbarous coun-
try or in a country in which the United States exercises extraterrito-
rial jurisdiction is singular. . . . Their residence may be indefi-
nitely prolonged, since obviously they can not become subjects of the
native Government without grave peril to their safety. The Depart-
menfs position with respect to these citizens has imiformly been to
afford them the protection of a passport as long as their pursuits
are legitimate and not prejudicial to the friendly relations of this
Government with the Government within whose limits they are re-
siding.'
" The pursuits of a missionary, properly conducted, are legitimate,
and American missionaries of good standing have always enjoyed
continuous protection from this Government in China. In 1894 Mr.
Gresham said :
" ' Our legations have been authorized to issue passports to mission-
aries in foreign lands whose residence there was continuous and prac-
tically permanent, and who could not allege any definite intention of
returning to, and residing in, the United States.' (The American
Passport, p. 209.)
" These are merely instances of instructions of the same character
which have been often repeated, and which may be found upon con-
sulting the volumes of Foreign Relations. Their substance is ade-
quately compressed in the instruction of Mr. Cridler, the Third
Assistant Secretary of State, to the consul at Hankow, dated Sep-
tember 4, 1899, and (pioted by the consul in the correspondence you
submit. Mr. Cridler said :
" ' Recognizing that such of our citizens who have gone to China
to pursue their religious calling may not return, but continue their
Avork indefinitely abroad, the Department is disposed to sanction
their receiving passj)orts on taking the oath of allegiance.'
" It is true that in the Department's circular instruction of Septem-
ber 20. 1899, on the subject of [)assp()rts and intent to retui'u to the
United States, the words quoted in the legation's letter of November
27, 1899, to the consul at Hankow occur : 'A passport should not issue
974 PASSPORTS. [§522.
to any person who docs not intend to return to the United States.'
This language, however, should be taken in connection with the rest
of the same sentence: Ma' explained in the Departmenfs circular in-
i<truction of J/arch 27\ 1800, w ])assport slioidd not issue to any pei--
son who does not intend to return to the United States,' etc. That
circular (March 27, 1899) fully explained the exceptional position
of American citizens resident in a country like China.
" It is not intended by this instruction that the legation should
issue a passport to anj'one wlio declares that lie neither intends nor
desires to return to this country, or ev'en to anyone who defiantly
announces that he has no intention of returning, for such a statement
would be tantamount to the expression of a desire to expatriate him-
self and absolve himself from allegiance to the United States; but as
long as the loyal attachment to this (jovernment continues and the
legitimate and proper occupation of the applicant in China precludes
his entertaining a definite purpose of return, the protection of a pass-
port should continue. Taking the applications of Messrs. Roots and
Logan as they appear in the legation's dispatch, the Department is of
opinion that they should receive renewed passports."
Mr. Hay, Sec. of State, to Mr. Couger, miii. to China, Jan. 18, 1900, For.
Rel. 1900, 393.
9. Effect of Extraterritoriality.
§ 522.
Henry Asche, who was born in Bassorah, Turkey, in 1866, and who
had resided there, and in Germany and France, but had never been
in the United States, applied to the United States legation in Paris,
in 1888, for a passport. He claimed American citizenship through
his father, a native of German}', who Avas naturalized in the United
States in 1854, but who a few years later settled in Bassorah, w'here
he thereafter continued to live, and Avhere he died in 1870. The
son manifested no intention of ever coming to the United States.
" It is to be doubted," said the Department of State, " whether the
father, under these circumstances of such continuous abandonment
of his American residence and all the duties and responsibilities of
American citizenship, could have been entitled to a passport witli-
out having a well-established intention on his part of returning to
the country whose protection he so sought, and for which he proposed
to render no equivalent. But the son of such a person born abroad,
always living abroad, in Turkey, in Germany, and in France, never
having been in the United States, and having no intention ever to
come here, being of full age, is not entitled to receive the certification
of the citizenship of a country towards whom he sustains none of the
relations of a citizen. . . . Whatever might have been the right
§522.] EFFECTS OF EXTRATERRITORIALITY. ^75
of the Asches, father and son, if their continuous residence in Turkey
as American citizens had been alleged and established, is not neces-
sary to be here considered because no such case is shown, but on the
contrary the voluntary residence of the son in Germany (the country
of his father's origin) and in France, coupled by his election when
upwards of twenty-two years of age there to reside, without any
intention ever to come to the United States, proves abundantly his
abandonment of American citizenship."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, .May 7, 1888,
For. Kel. 1888, I. 534, citing the case of Landau, Wharton's Int. Law
Dig. II. 370.
Mr. Coombs, minister of the United States at Tokio, referring,
in a dispatch of Jidy 14, 1893, to the withholding of passports from
citizens of the United States on account of their continuous and
indefinite foreign residence, said : " I hope I may be able to call your
attention to the practical ojDeration of this rule in the East without
seeming to question its correctness. There are many Americans
in Japan engaged in a variety of occupations who must fall under
the ban of this law; some employed by the Japanese Government,
some in mercantile pursuits, some in the professions, and all in their
different places exercising an influence on civilization and giving
strength to the position of our country.
" Our institutions are upheld, our flag honored, and the national
character exalted. If they are not afforded the ordinary protection
of their country their influence would be destroyed and, I imagine,
their places Avould be filled by other nationals. These men exert
as much good for their country as they could if they were within
its territory.
" They, nevertheless, are called upon to perform jury duties in
consular courts and are otherwise amenable to the jjrocesses thereof.
To suspend their rights means to destroy one of the great national
influences of our people in the East.''
To these observations the following answer was made : " In those
oriental countries where the rule of extraterritoriality prevails, the
test of citizenshi}) found in a continued connection with business
interests having their root in the United States ma}'^ have its weight,
but there are other tests, as Mr. Coombs suggests, having equal
or perhaps greater value in showing a bona fide conservation of
the American character and an effort to uphold the good repute of
our country abroad. It should not be difficult in the light of com-
mon sense to distinguish between merely selfish residence abroad,
under circumstances which involve a practical renunciation of
all home ties and the a(lo]:)tion of a course whicli essentially re-
({uires the individual's uationality to be asserted. Men who . .
are by their employment and conduct * exercising an influence on
976 PASSPORTS. [§ 522.
civilization and giving? strength to the position of our country ' in
Japan, need not fear inquiry into the good faith wherewith they
retain a distinctive American nationality."
Mr. Greshani, Sec. of State, to Mr. Dun, luln. to Japan, Aug. 22, 1893,
For. Kol. 1803, 40.^. For Mr. Coombs' dispatch, see id. 404.
W., who was born in South Africa of American parents, had never
been in the United States, and declared merely that he Avoidd go
thither "' within my lifetime," applied, at the age of 24, to the
American legation at Tokio for a passport. He had obtained an
American i^assport three years previously from the legation in China,
where he then resided. The Department of State instructed the
legation at Tokio that, unless W. should satisfy it " of his intention
to come in the reasonably near future to reside in the United States
and perform the duties pertaining to American citizenship, he w^ould
not appear to be entitled to a passport; " that section 1993, Revised
Statutes, declaring the foreign-born " children " of American citi-
zens to be citizens also, did not entitle one so born " to disregard all
duties of citizenship indefinitely and to live abroad permanently
Avithout imputation of his nationality ; " that as W. was residing, if
not domiciled, in Japan, where the alien privilege of extraterritori-
ality had been abrogated, his status was governed by the same prin-
ciples as if he were residing in a European state; that the point to
be determined was whether " by domicil, occupation, and domestic
ties " he had " so far j^ermanently identified himself with the coun-
try of his residence as to create a presumption of abandonment of
his American status strong enough to outweigh any merely floating
intention he may have of eventually making the United States his
home ; " but that it was, " as a general thing, the Department's de-
sire to deal as broadly as possible Avith questions affecting the rights
of Americans sojourning in the far Orient, and to consider whether,
if the protection of the United States should be withdrawn, the
individual can obtain any other."
Mr. May, Sec. of State, to Mr. Buck, min. to Japan, March 21, 1900, For.
Rel. 1900, 759.
" The status of American citizens resident in a semibarbarous
country or in a country in which the United States exercises extra-
territorial jurisdiction is singular. If they were subjects of such
power before they ac(juired citizenship in the United States, they are
amenable, upon returning, to the same restrictions of residence as are
laid down in the beginning of this instruction, and for the same
reasons; but if they are not in that category, their residence may be
indefinitely prolonged, since obviously they can not become subjects
of the native government Avithout graAc peril to their safety. The
Department's i)OHition Avith respect to these citizens has uniformly
been to afford them the protection of a passport as long as their pur-
§ 523.] DURATION. 977
suits are legitimate and not prejudicial to the friendly relations of
this Government with the government within whose limits they are
residing; and the Department has even held that persons who are
members of a distinctly American community in Turkey and avail
themselves of the extraterritorial rights given by Turkey to such
communities may inherit their rights as American citizens, and that
section 1993 of the Revised Statutes of the United States, which pro-
vides that ' the rights of citizenship shall not descend to children
whose fathers never resided in the United States,' is not applicable,
such descendants being regarded, through their inherited extraterri-
torial rights recognized by Turkey herself, as born and continuing in
the jurisdiction of the United States (For. Rel. 1887, 1125)."
Mr. Hay, Sec. of State, to U. S. dip. & cous. officers, circular, Marcli 27,
1899, For. Rel. 1902, 1, 3.
VI. DURATION OF PASSPORTS.
1. Time Limit.
§ 523.
"A new passport will be expected to be taken out by every person
whenever he or she may leave the United States, and every passport
must be renewed, either at this Department or at a legation or consu-
late abroad, within one year from its date."
Mr. Seward, Sec. of State, to U. S. dip. & consular officers, circular. No.
24, Sept. 25, 1862, MS. Circulars, I. 211.
" It has been brought to the knowledge of this Department that
many of the consuls of foreign governments residing in the United
States are in the habit of attaching their vise to passports of citizens
of the United States which have been is-sued more than a year. As
the regulation of this Department, made pursuant to law, requires
that a new passport shall be taken out by every citizen of the United
States whenever he or she may leave the country, and that every pass-
port to be valid must be renewed, eitlier at this Department or at a
legation or consulate of the United States, at the expiration of one
year from its date, and that a revenue tax of five dollars shall be paid
on each j)assport at the time at which it shall be issued or renewed, it
is essential to the protection of the revenue due from this source that
foreign consuls should abstain from attaching their vise to j)assports
which have been used on a former absence of the holder from the
United States or which are a year or more old when presented for
vise. I will consequently thank you to notify the consuls serving
your Government in this country of this requirement."
Mr. Fish, Sec. of State, to the Members of the Diplomatic Corps, Circular,
May 9, 1870, MS. Circulars, I. 417.
H. Doc. 551— vol 3 G2
978 PASSPORTS. [§ 523.
"As the special tax formerly imposed upon each passport issued to
citizens of the United States has been repealed by Congress, this De-
partment, in pursuance of law, has so modified its regulations that
hereafter any passport issued to a citizen of the United States from
this Department will be considered valid for one year from its date,
though the same may have been used on a former absence of the
holder from the United States. I would therefore thank you to
inform the consuls serving your Government in this country of this
modification of a former regulation of this Department, to the end
that the}' may continue to abstain from attaching their vise to pass-
ports issued by this Department which are a year or more old when
presented for vise, but that they need no longer refrain from attach-
ing the vise to passports which are less than a year old on the ground
that they have been used on a former absence of the holder from the
United States."
Mr. Fish, Sec. of State, to the Members of the Diplomatic Corps, Circular
No. 17, Jan. 30, 1872, MS. Circulars, I. -154.
In his No. 117, of Oct. 15, 1878, Mr. Nicholas Fish, then American
diplomatic representative at Berne, brought to the notice of the De-
partment of State, with an expression of dissent, a letter addressed
to the police of Basle, by the American consul there, April 9, 18TG, in
which the local authorities, besides being informed that citizens oT
the United States residing abroad were " compelled to renew " their
passports every two years, were requested to see to it that citizens of the
United States settled in Basle should "observe the above regulation,
inasmuch as a disregard of the regulation Avill be followed by a loss of
United States citizenship." The Department of State, in approving
Mr. Fish's expression of dissent, remarked: "Paragraph 158 of tha
Consular Regulations, to which you refer, and which ])rovides that
no vise will be attached to any passport after two years from its date,
but that a new one may be issued in its place . . . is a regulation of
this Government for its own convenience and the guidance of its own
officers. The application, interpretation, and administration of these
regulations are matters solely and purely within the province of this
Government, and a subject in regard to which the authorities of
Switzerland or other foreign governments can have nothing to say."
Mr. Evarts, Sec. of State, to Mr. Fish, charge d'affaires to Switz., No. 70,
Dec. 18, 1878. MS. Inst. Switz. I. 475.
' An instruction of Mr. Evarts, Sec. of State, to Mr. Everett, charge at
Berlin, Feb. 5, 1878, as to the object of limiting the duration of pass-
ports, is quoted below in Mr. Bayai'd, Sec. of State, to Mr. \Viuchester,
min. to Switz., No. 80, March 28, 1887.
" I have received your No. 80, of the 80th of November last, and
your No. 105, of the 11th instant, both requesting instructions on the
§ 523.] DURATION. 979
question whether citizens of the United States residing in Switzer-
land may rightfully be required by the local authorities to renew their
passports two years after the date of issue as a condition of the con-
tinuance of their permis de sejoiir^ such passports being, under the
regulations of this Government, invalid after that period. Every
foreigner, as j^ou state, in order to enjoy -the privilege of sojourn
for a specified ])eriod in Switzerland must, according to Swiss law,
deposit with the cant(mal authorities authenticated evidence of his
ciuzenship in the form of a passport viseed by a diplomatic or con-
sular officer of his Government. The validity of this regulation is
unquestionable. Every state has, under international law, the right
to require of persons entering or residing in its territory some evi-
dence of their personal identity and nationality, and the usual
evidence of such nationality is a passport.
" There is nothing in the conventional engagements between the
United States and Switzerland that is inconsistent Avith the right of
the Swiss Government to require citizens of the United States enter-
ing or intending to raside in Switzerland to deposit with the local
authorities a duly authenticated passport. In Article I. of the treaty
concluded November 25, 1850, it is provided that —
" The citizens of the United States of America and the citizens of Switzerland
shall be admitted and treated npon a footing of reciprocal equality in the two
countries where such admission and treatment shall not conflict with the consti-
tutional provisions, as well Federal as State and cantonal, of the contracting
parties. The citizens of the United States and the citizens of Switzerland, as
well as the members of their families, subject to the constitutional and legal
provisions aforesaid, and yielding obedience to the laws, regulations, and usages
of the country wherein tliey reside, shall be at liberty to come, go, sojourn tem-
porarily, domiciliate or estal)lish themselves i)ermanently, the former in the can-
tons of the Swiss Confederation, the Swiss in the States of the American Union,
to acquire, possess, and alienate therein property ... to manage their
affairs, etc.
"Article IV. of the same treaty provided as follows :
" In order to establish their character as citizens of the I^^nited States of
America, or as citizens of Switzerland, persons belonging to the two contracting
countries shall be bearers of i)assports. or of other pai)ers in due form, certifying
their nationality, as well as that of the members of their family, fm-nished or
authenticated by a diplomatic or consular agent of their nation, residing in the
one of the two countries which they wish to inhabit.
" B\' the first of these articles the right of residence and of proi)erty
is recognized and confirmed, and by the second the j)r()por evidence
of claim to such rights is indicated and agreed upon.
" It hardly seems necessary to say that the provision in Article I.
of the treaty, that the ' citizens of the United States and the citizens of
Switzerland shall be admitted and treated upon a footing of recip-
980 PASSPORTS. [§ r>23.
rt>cal equality in the two countries,' is not to be construed so as to pre-
vent cither the United States or Switzerhind from adoptinir such
reasonabk^ police regulations as circumstances may require, even if
there were no express declaration in the article that such reciprocal
equality of treatment ' shall not conflict with the constitutional or
legal provisions, as well Federal as State and contonal, of the con-
tracting parties.'
" The requirement of a passport is merely a police regulation for
establishing the nationality and identity of foreigners coming into
the country, and it is a nuitter to be decided by each state according
to its political and social conditions. In Switzerland, as you say,
not only are passports required of foreigners residing there beyond a
certain period, but Swiss citizens going from one canton or commune
to another are strictly required to deposit Avith the local authorities
properly authenticated evidence of citizenship.
" In this manner there is established a system of registration of all
persons, both citizens and foreigners, and to this no reasonable
objection can be made. Jt is true that in some cases, as in that of
the bureau of nationality in Mexico, where it w as formerly sought to
make the failure of a foreigner so to register the ground of a denial
of his right to call upon his (lovernment for protection, which
amounted to imposing a forfeiture of nationality as a penalty for
failure to register, this Department has been constrained to protest,
and has taken the ground that a state can not by its municipal laws
take awa}'^ the rights to which a foreigner is by international law
entitled, among which rights is that of the protection of his Govern-
ment. But it has never been maintained that a municipal law,
merely requiring registration as a condition of residence, is inter-
nationally invalid.
" There still remains for consideration the question whether the
Swiss authorities may require citizens of the United States to renew
their passports two years after issue, in view of the regulations of
this Department.
" In its regulations made pursuant to law, and in its special instruc-
tions to our ministers, this Department has for many years acted
upon the rule that passports are not gor)d for more than two years
from the date of issue. Formerly, the period of vitality was only one
year, and on May 9, 1870, Mr. Secretary Fish, in a circular note to
foreign ministers, made complaint that numy of the consuls of for-
eign governments residing in the United States were in the habit of
viseing passports of citizens of the United States which had been
issued for more than a year. In that note Mr. Fish said that as the
regulations of the Department, made pursuant to law, required ' that
ever}^ passport to be valid nnist be renewed ... at the expi-
ration of one year from its date, and that a revenue tax of $5 shall
§ 523.] DURATION. 981
be paid on each passi^ort at the time at which it shall be issued or
renewed, it is essential to the protection of the revenue from this
source that foreign consuls should abstain from attaching their visa
to passports . . . which are a year or more old, when presented
for vise.'
" This note, it is to be observed, requests that the officers of for-
eign governments shall not recognize as valid American passports
beyond a certain age.
" On the 5th of February, 1878, Mr. Secretary Evarts, in an in-
struction to Mr. Everett, charge d'affaires at Berlin, said:
" Upon that subject I have to inform you that applicants at tlie Department
are uniformly advised that a passi)ort is good for two years from its date and
no longer ; and that persons applying to an American representative abroad will
be required to furnish satisfactory evidence that they are still entitled to pro-
tection of the United States. It is considered that indefinite residence abroad
might be quite as nuich encouraged by the possession of a passport good for an
indefinite period as by the operation of the rule which forces the party to submit
his case anew to the careful scrutiny of the legation as often as once in two
years, with suitable evidence bearing upon his claim to continued protection.
" In the printed personal instructions to the diplomatic agents of
the United States there is the following direction:
" No vise will be attached to a passport after two years from its date. A new
passport may, however, be issued in its place by the proper authority, as herein-
before provided, if desired I)y a holder who has not forfeited citizenship.
" These provisions are repeated in an existing circular of this
Department, containing general instructions in regard to passports.
" In section 174 of the Consular llegulations of the United States,
issued in 1881 and unrevoked, there are the following provisions:
"A passport is good for two years from its date and no longer. Xo vise will
be attached to a passport after two years from its date.
" It is thus indubitable that under the regulations and practice of
this Department i)assp()rts are not regarded by the Department as
valid after two years from the date of their issue. The reasons for
this rule have already been disclosed. In the first jilace, there is the
matter of revenue. In many cases the fee for the renewiil of pass-
ports is the only contribution made by citizens of the United
States residing abroad to the su[)port of this (jovermnent, whose ])ro-
tection they claim and enjoy, together with the privileges, innnuni-
ties, and exemj^tions incident to their American citizenshiji. In tlie
second place, this (iovernment, Avhile granting passports, is entitled
to place tluMU under such restrictions as to time as would in part pre-
clude them from being made under chcinged circumstances the instru-
ment of imposition eitlier upon itself or upon foreign governments.
•'Now, as this Government lias announced and acts upon the rule
that its passports are not valid after two years from'the date of iaeue,
982 PASSPORTS. [§ 523.
this Department is unable to perceive upon what ground it could ask
foreign governments to recognize those passports as valid after that
period, provided there has been opportunity to obtain new ones. A
passport is evidence of citizenship, and as such is entitled to recogni-
tion as long as it remains in force; but if this Government decides
that its passi)orts are not valid for more than two years, it must be
held to mean that they are not to be internationally used as evidence
of citizenship after that time; and this being so, the Department is
unable to see how it could ask the authorities of foreign countries, in
which alone passports are reqinred or intended to be used, to recognize
them as valid evidence after they have ceased to be so by our own
express regulations.
" The refusal of a foreign government, under these circumstances,
to recognize an extinct passport is not a denial of American citizen-
ship or of any of its incidental rights, but merely a requirement of
proper evidence of such citizenship.
" In the case of Switzerland this requirement is strengthened by
Article IV. of the treaty of 1850, in which it is provided that pass-
ports or other evidences of nationality of citizens of the two countries
shall be ' furnished or authenticated by a diplomatic or consular
agent of their nation residing in the one of the two countries which
they wish to inhabit.'
" It has been seen that an American passport more than two years
old can not be authenticated either by a diplomatic or a consular
agent of the United States; consequently, if this Department should
contend that the Swiss authorities ought to recognize American pass-
ports more than two years old, it might be placed in the position of
asking those authorities to recognize as valid passports neither fur-
nished nor authenticated by the diplomatic agent or by any consular
officet of the United States in Switzerland.
" You will therefore inform citizens of the United States seeking
instruction on the subject that, under the regulations of the Depart-
ment of State, made pursuant to law, passports are good for two years
from their date, and no longer, and that this Government can not ask
foreign governments to recognize American passports more than two
years old."
Mr. Bayard, Sec. of State, to Mr. Winchester, luin. to Switz., No. 80,
March 28, 1887, For. Rel. 1887, ICMJO.
"By a circular issued September 1, 1878, the Department ordered
that the duration of passports should be limited to two years from the
date of their issuance, and this ruling has been in force ever since.
One of the objects of prescribing it was to secure at reasonable inter-
vals evidence of the conservation of American citizenship by persons
residing indefinitely abroad. Under the law (section 2000, Revised
§524.] CANCELLATION. 983
Statutes of the United States) naturalized and native-born citizens
are required to receive from this Government the same protection of
persons and property while they are abroad. It would, therefore,
be obviously improper for this Government to make a distinction
in favor of native-born citizens in the duration of its passports."
Mr. Hill, Assist. Sec. of State, to Mr. Clarke, Nov. 4, 1898, For. Rel.
1899, 88.
2. Cancellation.
§ 524.
"WHiere a passport was issued to a Prussian subject, on the strength
of erroneous representations that he was a citizen of the United
States, the person who obtained it for him w^as requested to return it;
and, as he failed to comply with the request, possibly because the
holder had sailed for Europe, the American minister at Berlin was
instructed to make the " necessary exfllanations to the Prussian
Government."
Mr. Marey, Sec. of State, to Mr. Vroom, min. to Prussia, No. 8, Jan. 20,
18.54, MS. Inst. Prussia, XIV. 210.
A person obtained a passport from the Department of State on an
application in which he swore that he was a naturalized citizen of
the United States. He subsequently became involved in difficulty
with some of the German authorities and invoked the protection of
the United States, when the fact was discovered that he was not a
citizen, but had only declared his intention to become one. The
American consul-general at Frankfort was instructed to obtain the
passport and return it to the Department to be cancelled, which was
done. The individual then brought a suit against the consul-general
for damages. The facts were comnnniicated to the proper authori-
ties in the United States, in order that criminal proceedings might
be taken against the person in question, in case of his return.
Mr. Cass, Sec. of State, to Mr. Ilillyer, Solicitor of the Treasury, March
1, 18(50, 02 MS. Doni. Let. 2.
The proper course with regard to expired passports is to draw two
or three pen strokes through the signature and write ** cancelled "'
across the face of the document, in bold letters, and then return it
to the holder.
Mn Kayard, Sec. of State, to Mr. Winchester, niin. to Switz., No. Ill,
Dec. l.j, 1887, For. Kel. 18.S8, II. 1012.
In the case of Hercules A. Proios, who was held not to be entitled
to the protection of the United States legation in Constantinople,
984 PASSPORTS. [§ 524.
the legation Avas instructed to take no action beyond the withholding
of recognition of his alleged American citizenship " and the cancella-
tion of his passport."
Mr. Bayard, Sec. of State, to Mr, Straus, min. to Turkey, Oct. 26, 1888,
For. Rel. 1888, II. 1G20.
Where it appeared that a passport had twice been issued to a per-
son who had not at the time of his naturalization fulfilled by six
months the condition of five years' residence in the United States, the
Department of State said : " You will cancel the passport heretofore
issued by you to Mr. Heidenheimer, and you will return hither the
passport issued to him in 1871 by this Department."
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Dec. 8, 1888,
For. Rel. 1888, I. 565.
Where a qualified passport was issued to a person whose retention of
American citizenship was doubtful, it was held that, there being no
authority for the issuance of such a passport, it should be " recalled
and cancelled." (Mr. Bayard, Sec. of State, to Mr. McLane, miu. to
France, May 7, 1888, For. Rel. 1888, I. 534.)
June 6, 1899, John Wilson obtained a passport from the legation
of the United States at Vienna on an application in which he swore
that he was born in Virginia City, Nevada. The legation after-
wards learned that he had been arrested on criminal charges. This
circumstance led to inquiries by which the legation ascertained that
he had previously obtained a passport at Paris by swearing that he
was born at Bloomington, Illinois, and it appeared that he stated
to the Austrian court before which he was arraigned that he was
born in Chicago. It also appeared that he had five aliases and that
he had previously been convicted at Vienna of crimes of fraud and
theft. The legation obtained his passport from the judicial author-
ities and cancelled it, and sent it to the Department of State.
For. Rel. 1899, 77.
" The retention of an applicant's former passport in case of a
refusal to issue a new one is, under the Department's instructions,
warranted when the facts elicited show that the holder has been
illegally naturalized, and is therefore wrongfully in po.ssession of
such formal certification of citizenship. To retain a regidarly
issued passport when no fraud appears, and when its return is de-
manded by the party, is a doubtful proceeding, it being the property
of the holder."
Mr. Hay, Sec. of State, to Mr. Storer, min. to Belgium, Feb. 4, 1899, For.
Rel. 1899, 84, 85-86.
§ 525.] EVIDENTIAL FORCE. 985
VII. INTERNATIONAL EFFECT.
1. Evidential Force.
§ 525.
" This Government has a right to ask that if citizens of the United
States, who are traveling with reguhir passports, or Avhat appear to
be such passports, happen to fall under unjust suspicions, every
facility will be granted to them to vindicate their innocence. The
refusal to let friends communicate with them while under arrest, or
to let them appeal to our consuls and ministers, was an illiberality of
treatment on the part of subordinate officials that can not but be
reproved by the Executive Government of Switzerland. It is ex-
pected that they will take proper steps to prevent this in future."
Mr. Marcy, See. of State, to Mr. Fay, No. 10. Oct. 4, 1854, MS. Inst. Switz.
I. 20.
" Your predecessor was instructed that we would not in any in-
stance allow the sufficiency or supremacy of a passport to be ques-
tioned by Mexican authorities. Such a proceeding would clearly
constitute an international case."
Mr. Fish, Sec. of State, to Mr. Foster, No. 43, Oct. 31, 1873, MS. Inst.
Mex. XIX. 37.
This instruction related to tlie action of the Mexican autliorities in
Sonera in exacting u tax for exemption from military service of a
citizen of the United States, on the ground that he had not
matriculated.
"A certificate of naturalization and the possession of a passport are
presumptive proof, in the absence of other evidence, that the person
named therein is a citizen of the United States. If he has not for-
feited his right to be so regarded he remains such. The question in
each case must be decided by the facts peculiar to it, and should be
investigated and decided by the officer to whom the application is
made. AMiere the facts have been investigated and doubt exists, a
reference may be made to this Department."
Mr. Fish, Sec. of State, to Mr. Davis, Dec. 22, 1874, MS. Inst. Trussia,
XV. 581.
"The pretension of that Government [Mexico], too, to ignore the
passport of this Department, and to require an inspection of the
certificate of the naturalization of an alien, cannot be acquiesced in.
You will distinctly apprise the minister for foreign atl'airs to that
effect, and will add that this Government will expect to hold that of
Mexico accountable for any injury to a citizen of the United States
which may be occasioned by a refusal to treat the passport of this
Department as sufficient proof of his nationality. . . .
986 PASSPORTS. [§ 525,
" The assumption by the Mexican Government of a right to inspect
and decide upon the validity of certificates of naturalization issued
by these numerous courts in preference to receiving the proof
afforded b}^ a passport of this Department must be regarded as want-
ing in proper courtesy to the Government of a friendly power.
" It may also be remarked that there are many citizens of the
United States who were neither born such nor naturalized in the ordi-
nary way. These were naturalized by treaties with foreign powers,
and not a few of them by treaties between the United States and
Mexico. If these should visit the Mexican Republic, they will have
no such certificate of naturalization as is granted to natives of other
countries naturalized here. The only guarantee of nationality in
their case would be a passport from this Department."
Mr. Evarts, Sec. of State, to Mr. Foster, June IG, 1879, MS. Inst. Mex.
XIX. 593.
A passport and not a certificate of naturalization is the proper
prima facie evidence of the holder's right to protection as a citizen
of the United States while residing abroad.
Mr. Olney, Sec. of State, to. Mr. Risley, min. to Denmark, Nov. 28, 1896,
For. Rel. 1897, 118.
In 1892 a person bearing a passport as Jacob Goldstein, a natural-
ized citizen of the United States, was arrested and imprisoned at
Kharkov, Russia, under § 977 of the penal code, on a charge of hav-
ing entered Russia with a false passport, it being alleged that his
real name was Yankel Klotow. Subsequently the Russian legation
at Washington presented Goldstein's passport and certificate of
naturalization to the Department of State, with an inquiry as to
their genuineness. The Department of State objected to this pro-
cedure, saying that as passports issued by the Secretary of State,
under the seal of the Department, were " prima facie evidence of the
facts therein certified," the purpose for which they were issued
" would be defeated were foreign authorities at liberty to disregard
them till certified anew by the issuing authority ; " that " their exam-
ination and vise is properly the function of the legation of the United
States in the country where the bearer may chance to be; " and that,
in the case under consideration, while the ascertainment of the genu-
ineness of the papers would neither prove nor disprove the alleged
false impersonation of the bearer, the sending of them to Washington
would seem to have restrained him of his liberty several weeks
longer than if a seasonable application had been made to the legation
at St. Petersburg for the desired information. In conclusion the
Department said : " You may say to the minister of foreign affairs
that where there may be good ground to believe a passport has been
forged or tampered with, or is held by another than the person to
§ 525.] EVIDENTIAL FORCE. 987
whom it was lawfully issued, your legation will cheerfully render
assistance so far as an examination of the authority [authenticit}'] of
the document is concerned, and will, in case of need, refer the matter
to this Department, but that otherwise it is the just expectation of
this Government that its passports will be duly respected abroad as
prima facie evidence of the facts therein stated, and that its validity
is only to be traversed by competent proof."
Mr. Foster, Sec. of State, to Mr. White, min. to Russia, Nov. 2r>. 1802,
For. Rol. 1893, 5.30.
The Russian foreign office received these representations " in a very satis-
factory manner, assuring me that in future such cases would he
referred to the American legation here and not to the State Depart-
ment at Washington." (Mr. White, min. to Russia, to Mr. Foster,
Sec. of State, Dec. 15, 1802. For. Rel. 180.3, 531.)
The case of Goldstein was disposed of by his acquittal by the local court
at Kharkov, and his innnediate departure. (For. Rel. 1803, 541, 5-13.)
By art. 077 of the Russian I'enal Code, " whoever falsely transfers his
passport to another, that the latter may live under its protection, or
that the latter may pass the frontier, and also whoever passes from
one place to another by means of such a modified or falsified pass-
port, is subject to imprisonment from two to four months or to arrest
from three weeks to three months." (Mr. Smith, min. to Russia,
to Mr. Blaine, Sec. of State, No. 20, July 5, 1800, 41 MS. Desp. from
Russia.)
" The real grievance in the case is . . . the refusal of the
Austro-Hungarian authorities to accord respect to the passport, duly
issued by the lawful agencies of the United States, as frima facie
attestation of the citizenship of the bearer, and therefore of his
treaty rights. . . . The passport and naturalization certificate of
Benich have been equally disregarded by the judicial and military
authorities, who seem to have been left free to take whatever course
they chose, to independently ascertain the citizenship of the party.
. . . The Austro-Hungarian officials appear to proceed on the
intolerable assumption that a foreign passport is valueless as evi-
dence fer se, and that the true citizenship of an alien found within
Austrian jurisdiction is to be ascertained by some independent muni-
cipal investigation having no regard whatever to international obli-
gations. This assumption is wholly incompatible with the univer-
sally admitted doctrine that a state is the sole and ultimate judge of
the citizenship of its own dependents, and is, in its sovereign ca])acity,
competent to certify to the fact. A passport, in the eye of inter-
national law, is one of the highest sovereign acts of a state, whereby
it attests that the holder is a lawful citizen. In the nature of the
case it must be assumed to be prima facie valid until shown to be
otherwise. . . . It is neither incumbent upon the bearer to prove
his citizenship by extraneous evidence at the will of the country of
his sojourn; nor upon the certifying government to support its
988 PASSPORTS. [§ 525.
oflicial attestation of the fact of the citizenship by colhiteral proof
under the municipal requirements of another country. . . . Should
the Austro-IIungarian authorities have reason to believe that they
[passports] are fraudulently held by others than the persons to whom
they were lawfully issued, or that the holders have obtained naturali-
zation in fraud of the laws of the United States, or claim privileges
of citizenship not granted by the treaty of naturalization between
the two countries, the facts should at once be brought to the notice of
the Government of the United States through its accredited envo}^
in Austria-Hungary. . . . It is hoped that the incident will have
been satisfactorily terminated before this reaches you bj'^ the full
release of John Benich ; by the disavowal of the contempt shown by
the Croatian authorities for the sovereign acts of the United States
under our treaty with Austria-Hungary; by a frank expression of
regret ; and by the adoption of measures to prevent the recurrence of
so vexations a class of questions and to dispose of any doubtful cases
of citizenship by the cooperative action of the legation and the
foreign office."
Mr. Gresham, Sec. of State, to Mr. Tripp, min. to Austria-Hungary, Sept.
4, 1893, For. Rel. 1893, 23, 24.
It appeared tliat Benicli, a native of Croatia, wlio was duly naturalized in
the United States, in conformity with the requirements of the natu-
ralization treaty with Austria-Hungary of Sept. 20, 1870, was, while
on a visit to his former home, arrested, about May 16, 1893, at Novi,
in Croatia, and held for military duty. He had a passport is.sued
by the United States legation at Vienna, April 15, 1893. The consular
agent of the United States at Fiume intervened in his behalf with the
local authorities, and particularly with the military recruiting commis-
sioner at Fiume, who i-eplied that " he does not recognize the conven-
tion of September 20, 1870, and neither the authority of the U. S.
consular ofBcer." The judicial authorities took the same view, and
Benich was escorted to Pola to perform military service. The case
was then taken up by the United States legation at Vienna, with the
result that by a telegraphic order of the Hungarian minister of
defense he was temporarily discharged from active service, but the
final erasure of his name from the rolls was reserved till " full
information " should be received as to his American citizenship,
although his passpoi't and certificate of naturalization had been sub-
mitted, in original and translation, to the judge at Novi, May 17,
1893. It was with reference to this situation that the foregoing in-
struction was written. (For. Rel. 1893, 15, 23.)
See, also, the case of Edward Drucker. For. Rel. 1893, 1.
In the case of Charles Mercy, alias Saul Moerser, an arrest was made on
the charge of evasion of military duty and of embezzlement previous
to naturalization. The former charge was withdrawn on production
of evidence of naturalization, and Mercy was released on bond on the
charge of embezzlement. He seems to have forfeited his bail and
quitted the country. (For. Rel. 1893, 5, 13, 14.)
See Mr. Hay, Sec. of State, to Mr. Harris, No. 59, Jan. 5, 1900, MS. Inst.
Austria, IV. 444.
§ 025.] EVIDENTIAL FORCE. 989
The views set forth in Mr. Gresham's instructions to Mr. Tripp of
Sept. 4, 1893, supra, were fully connnunicated to Count Kalnoky by
Mr. Tripp in a note of September 26, 1893. A full response was
made by the Austrian foreign office, in which the principle contended
for by the United States was fully conceded. The reply of the for-
eign office was based upon and embodied a report of the governor of
Croatia, in which it was stated —
1. That the members of the enrollment commission were not justi-
fied in refusing to recognize Benich's certificate of naturalization and
passport, or in declining " to respect them as legal documentary
proof," but that they should have taken cognizance of the papers and
of the protest of the United States consular agent at Fiume and have
cancelled Benich's enrollment, and then have submitted their sus-
picions as to the authenticity of the papers to the competent authori-
ties for decision.
2. That by failing to show either to the papers or to the remon-
strance of the consular agent the respect Avhich was due them, they
had rendered themselves liable for a violation of official duty, for
which proceedings against theln would be taken, although they had
been governed by the belief that Benicli was still a Hungarian sub-
ject and not by any intentional disrespect to the provisions of the
treaty or to the representative of a frienclly government.
3. That the position maintained by the United States as to the
necessity that papers issued by the competent authorities of one coun-
try should be respected and recognized by the authorities of another
unless the documents bore " unmistakable i)roofs of having been
counterfeited or otherwise obtained by fraud," was fully concurred
in, and that the governor of Croatia had instructed all his subordi-
nate officers to act in future in conformity with this principle.
Mr. Tripp, min. to Austria-Hungary, to Mr. Greshaui, Sec. of State, Aug.
23, 1894, For. Kel. 1894, 3('., 44, enclosing copy of a note of Count
Welsersheinib of Aug. 18, 1894.
In March, 1895, Solomon CzosneJc, who bore a passport from the
Department of State at Washington, was, on his arrival at Chrzanow,
in Galicia, summoned to appear for military duty. In reply, he sub-
mitted his passport, and claimed American citizenship. On the 1st
of May he was arrested, and held to answer the criminal charge of
illegally abstaining from fulfilling militar}' duty. To this charge ho
made the same answer. It appeared that he was born in (ilalicia in
April, 1872, but emigrated in 1878 to America with his father, who
was duly naturalized in 1888. Solomon was then sixteen years of
age, and he continued to reside in the United States till January,
1895, when he revisited Austria on a matter of business. Mr. Tri])p,
minister of the United States at Vienna, in presenting the case to the
990 PASSPORTS. [§ 525.
foreign office, May 23, 1805, called attention to the case of John
Benich and Count Welsersheimb's note of August 18, 1894. Mr.
Tripp relocated the assurance which he gave in that case that, if a
question should arise as to the identity of the hearer of a passport, or
as to fraud in the procurement of it, the legation would be ready " to
aid in causing the allegations and complaints to be immediately in-
vestigated by the authority from which the document issued, to the
end, in all cases Avhen the charges are sustained, that the document
may be cancelled and the bearer of the same be convicted and pun-
ished ; " but he declared that his Government " must insist, where its
passport, bearing upon its face an apparent validity, is presented to
the local authorities of your Government, that it must be respected
as such, without subjecting its bearer to months of delay and great
expense in proving and determining the facts of which the paper is
prima facie evidence and, as to the local authorities to whom it is pre-
sented, the best evidence."
The Austrian Government replied that the accused was not de-
prived of his liberty, but was allowed to move about freely ; that the
case was still pending, and that the ministry of public defence was
unable to act before judgment had been passed, especially as it must
be ascertained whether the person in question was the legitimate son
of the father who emigrated^to the United States and became a citi-
zen thereof. With this reply there was enclosed a statement of the
district attorney, giving the reasons for holding the man to answer
before the courts, and containing the following clause : " In view of
the fact, however, that the accused, although he emigrated before he
was liable to military duty, received no permit from the ministry of
public defence (par. 64 of military law), or at least can not produce
one, it can not be assumed that he is exempt from military duty,
even if he be provided with a United States passport." Mr. Tripp
protested against this view.
The foreign office, July 22, 1895, subsequently reported that the
state attorney, after having convinced himself of the lawful nat-
uralization of Czosnek in the United States and of the genuineness
of the passport and his identity, had instructed the district attorney
to withdraw the charges against him, and to cause the passport,
which was among the papers taken from him at the time of his
arrest, to be returned to him. Moreover, the foreign office, accepting
the position taken by the United States, further declared that the
state attorney had " informed the district attorney that the pro-
ceedings instituted by the latter in the premises were not in con-
formity with the existing regulations, and has at the same time
instructed the authorities under his jurisdiction to act in future
in strict compliance with the provisions of the treaty of September
20, 1870, and with the views expressed by the honorable envoy of
§ 525.] EVIDENTIAL FORCE. 991
the United States regarding the prima facie evidence of foreign and
'American passports and documents proving the identity of persons."
Tlie Department of State, in referring to the termination of the
case, replied that the precedent was " a vahiable one, because in the
Benich case and other cases the authorities of Austria-Hungary,
while admitting that a passport of a friendly nation is prima facie
evidence of citizenship and must be respected by administrative offi-
cers, have suggested that judicial officers might act in disregard of
it. In this case you contended that when there is no charge of fraud
in the procurement of a passport, or ns to the identity of the person
presenting it, it must be respected by judicial as well as adminis-
trative officers, and the correspondence shows that this view was
shared by the Austro-Hungarian minister."
Mr. Tripp, min. to Aust. Hung., to Count Golucbowsky, rain, of foreign
affairs, May 23, 1895, For. Kel. 1895, I. 14, 15-lG ; same to same,
June 27, 1895, id. 17 ; Mr. Pasetti, for the foreign office, to Mr.
Tripp, July 22, 1895, id. 19; Mr. Adee, Act. Sec. of State, to Mr.
Tripp, Aug. 12, 1895, id. 19, 20.
May 1, 1895, Mr. Hengelmiiller, minister of Austria-Hungaiy,
transmitted to the Department of State a passport, which had been
issued by it, for the purpose of ascertaining whether the bearer, from
whom it had been taken in Austria, had " really become a citizen of
the United States," so as to be exempt from military duty under the
treaty of September 20, 1870.
The Department of State replied that no previous instance was
recalled of such a reference to it on the part of the Austro-Hungarian
Government, and that it would be much regretted were it to form a
precedent, since passports issued by the Secretary of State under the
seal of the Department would fail of their purpose if foreign author-
ities were at liberty to disregard them till certified anew by the issu-
ing authority. Attention was drawn to the correspondence between
the two Governments in 1893, and particularly to the instruction of
Mr. Gresham to Mr. Tripp, September 4, 1893, supra, and to tlie note
of Count Welsersheimb to Mr. Tripp of August 18, 1894, admitting
" the necessity that papers issued l)y the competent authorities of one
country should be respected and recognized by the authorities of a
third state as long as the.se documents do not bear unmistakable
proofs of having been counterfeited or otherwise obtained by fraud."
Having thus reaffirmed its views, the Department stated, without
prejudice to its position, that the passport was duly issued upon proof
that the applicant had been lawfully naturalized aft(>r more than five
years' residence in the United States.
Mr. Ilengelmiillor, .\ustro-lluTigarian min., to Mr. (Irosliani. Stv. of State,
May 1, 1895; Mr. T'Id. Act. Sec. of State, to Mr. Ilengelnniller, May
8, 1895: For. Rel. 1895, I. 8, 9.
992 PASSPORTS. [§ 525.
In iin instruct ion to Mr. Tripj) of May 9, 1895, Mr. Uhl drew attention to
the instruction to Mr. "White, at St. Petershurg, Nov. 2<i, 1892, supra.
See, also, Mr. Hay, Sec. of State, to Mr. Harris, No. 59, Jan. 5, 1900, MS.
Inst. Aust. IV. 444.
March 25, 189G, Mr. Tripp reported that the cases of arrest of
naturalized citizens of the United States in Austria for failure to
perform military duty had become quite infrequent, as the local
military authorities of the different provinces had instructions from
the foreign office to give to American passports the credit to which
they were entitled. A naturalized citizen of the United States, if
arrested, was immediately released on the presentation of his papers,
without recourse to a consul or to the legation itself, unless some
peculiar facts existed in the particular case.
For. Rel. 1896, 4-5.
Complaint was made by Mr. Leopold Eieder, of Newark, N. J.,
that the Austrian authorities took possession of his passport and
refused to return it, notwithstanding his frequent requests for it.
On investigation it appeared that Rieder, when summoned before the
military authorities in Galicia, did not appear in response to the sum-
mons, but instead gave up his passport, saying that that would explain
the situation. Pending an investigation he returned to America, and
when the magistrate ordered his passport to be returned to him he
could not be found. The Austrian Government therefore turned over
his passport to tlie United States legation in Vienna. Mr, Tower,
United States minister, said that if Mr. Rieder had consented to
appear and make a statement to the magistrate when he was sum-
moned, he would have saved himself much annoyance and would
have had his passport returned to him without delay.
For. Rel. 1897, 5-7.
In connection with the principle laid down in Benich's case, the
following corresfDondence is to be noticed :
By the naturalization treaties between the United States and the
German States (just as by that between the United States and
Austria-Hungary) both naturalization and residence of five years
are required as conditions of recognized change of allegiance. Act-
ing upon these stipulations, the Wiirtemberg authorities, in 1894,
demanded of one Seifried, who had been arrested for failure to
perform military service, independent proof, apart from his pass-
port and certificate of naturalization, that he had uninterruptedly
resided in the United States for five years, and, pending the pro-
duction by him of such j)roof, admitted him to bail. He was after-
wards released on showing that he had continuously resided iij the
United States thirteen years.
§ 525.] EVIDENTIAL FORCE. 993
With regard to this case, the Department of State observed that,
although the fact of naturalization in the United States implied in
the great majority of cases a continuous five years' residence, it
did not imply such residence in all cases — e. g., minors, honorabh"^
discharged soldiers, merchant seamen, etc., naturalized under special
provisions of law on less than five j^ears' residence; that a passport,
as a certificate of citizenship, did not disclose the statute under which
the naturalization was effected, nor, in view of the varied and defi-
cient forms of naturalization certificates and of other matters of
record, on which the passport was issued, could it practically be made
to do so; and that the question was further complicated by the
circumstance that, even if the naturalization was effected under one
of the statutes requiring less than a five years' residence, the person
so naturalized was, after completing such residence, treated as hav-
ing fulfilled the conventional conditions. In consideration of these
things, and " in the absence ... of disrespect to the passport
itself, as prima facie evidence of citizenship, or of any apparent
purpose on the part of the governments of Germany to question the
fact of naturalization Avlien duly certified to have been performed
in accordance with the statutes of the United States, it may not be
easy," said the Department of State, " to dispute the claim of those
States, under existing naturalization treaties, to ascertain by some
separate process whether the conjoint requirement of those treaties
in respect to residence has been fulfilled. We can not, of course,
admit any impugnment whatever of the validity and sufficiency of a
passport as a prima facie certification of the fact of lawful citizen-
s|;iip, nor could we acquiesce in any proceedings in determination of
the residential condition which would impose undue hardship upon
the individual or exact of him proof of statutory naturalization, for
this latter is abundantly covered by this Government's formal certifi-
cation of the fact of lawful citizenship. We certainly could not
question the competency of a German court to admit and pass upon
proof of five years' total residence in the United States in the case
of those persons acquiring our citizenship in less time and as to
whom this Government might not be able to certify to the duration
of any other part of their period of residence than that which ante-
dated naturalization, and if thus admissible, and in such a case even
necessary as to a part of the five years, the claim as to the whole period
can not readily be contestable.
" The newspapers recently published a telegraphic item reporting a
decision by the imperial supreme court in Saxony which appears to
relate to the present subject. If not already done, you will report to
the Department the facts and circumstances of that decision. In the
meantime, or until otherwise instructed, you may suspend action upon
H. Doc. 551— vol 3 63
994 PASSPORTS. [§ 52G.
the Department's No. 238 and No. 445, unless it should appear that
the courts go behind the passport as prima facie evidence of the
fact of citizenship and require the bearer to prove naturalization.
As stated in the instructions to the United States minister at Vienna,
to which those dispatches refer, the attestation of citizenship con-
tained in the passport can only be traversed by allegation of unlawful
acquisition of citizenship, in which case it is the right and duty of the
naturalizing GovernnTent to determine whether the party be or be
not rightfully one of its citizens."
Mr. piney, Sec.- of State, to Mr. .Tackson, charge at Berlin, No. 544,
; iW 1.3, 189(5, For. Ilel. 180,5, I. ,520, .522-.'')23.
Sfee, alK). Mr. Uhl, Act. Sec. of State, to Mr. Kunyon, anib. to (ierinaiiy,
v,.,,, -V ' j^o. 238, March 11, 1895, For. Rel. 189,5, I. 510; Mr. Olney, Sec. of
,'-^->-{ StsUe, to Mr. Riiiiyon, No. 445, Oct. 14. 1895, id. 517; Mr. Kuuyon
to Mr. Olney, No. 440, Dec. 23, 1895, id. 519.
As a general rule, a passport granted by the Secretary of State ig.
not evidence in a court of justice [ in the United States] that the per-
son to whom it was given was a citizen of the United States.
., .,jU?:t^uij^..P'Arbel, 9 Pet. 692.
■ . > . - 2. Vis^.
-■•- ■i~ i^ :■ ■ . " '^ ' •" §526.
"Some foreign countries, before recognizing the validity, of a pass-
port, require that a visa, or vise, shall be, or shall have been, affixed to
it; This is an endorsement denoting that the passport has been exam-
ai;nined and is authentic, and that the bearer may be permitted to pro'
ceed on his journey. Sometimes it is required that the visa be af-
fixed in the country where the passport is issued, by a diplomatic or
consular officer of the government requiring it; sometimes simply by
such officer anywhere; sometimes at the frontier of the country to
which admission is sought. It may even be required from a diplo-
matic or consular officer of the government which issued the pass-
port."
Iliant's Am. Passport, 5.
See Dana's Wheaton, 298, n., there cited.
The vise is affected by endorsing the words " Good for ," the blank
being filled by the name of the traveler's country of destination or
sojourn; or the single word " (Jood " may do. (Mr. Hay. Sec. of
State, to Mr. Harris, No. .59, .Jan. 5. 19(K», MS. Inst. Austria, IV. 444.)
The legaj charge for the vise of an American passport in Europe
by a consular officer of the United States "is $1.00, which can be
charged only once in the same country."
■ ,1 , Mr. Cass, Sec.of State, to Mr. Wilcox, Feb. 29, 1800, 51 .MS. Dom. Let. 499.
§ 526.] VISE. 995
• " Passports are to be verified only by the consular officer of the
place where the verification is sought, for which a fee of one dollar in
the gold coin of the United States, or its equivalent, will be collected.
In the absence of such consular officer, or should the foreign govern-
ment refuse to acknowledge the validity of the consular vise, it may
be given by the principal diplomatic representative. A diplomatic
representative or his secretary of legation may, however, verify i)ass-
ports presented to him when there is no consulate of the United States
established in the city where the legation is situated. A consular
agent may vise but can not issue a passport. . . .
" No vise will be attached to a passport after two years from its
date. A new passport may, however, be issued in its place by the
proper authority, as hereinbefore provided, if desired by a holder who
has not forfeited citizenship."
rrinted Personal Instructions to Dip. Agents, 1885, See U. S. Cons. Reg.,
1881, § 164.
The legislation of the United States does not reiiuire a consular officer to
vise foreign passports ; but, if desired to vise such a passport, he may
do so as a matter of courtesy, as had been the practice in Greece.
(Mr. Cridler, Third Assist. Sec. of State, to Mr. McGinley, No. G, May
21, 1898, 102 MS. Inst. Consuls, 14.)
If a consular officer of the United States is aslced by the foreign authori-
ties whether a paper purporting to be an American passport is genu-
ine, he may reply by letter, saying, if the case warrants it, that the
form of the paper -and its- signature and seal are to the best of his
knowledge, regular and genuine ; and for such an answer he is to
charge no fee. If the ordinary consular vise be desired on an Ameri-
can passport, he will affix it upon payment of the prescribed fee.
(Mr. Hay, Sec. of State, to Mr. Harris, No. 59, Jan. 5, 19<-H), MS. Inst.
Aust.-Hung. IV. 444.)
General Otis having desired that the American consul at Singapore
should vise the passports of all passengers for the Philippine Islands,
including those of foreigners, it was decided to permit tiic consul to
endorse foreign passports with the word " Seen," together with the
date and his signature. To this endorsement he was to affix his offi-
cial seal; and he was also to collect the official fee prescribed for
viseing a passport, and turn it into the Treasury in the usual manner.
Mr. Adee, Second Assist. Sec. of State, to Mr. Moseley, jr.. consul at Singa-
pore. No. Ki, Sept. 21. 1S99. 1(>9 MS. Inst. Consul.-*, 'Ml.
See Mr. Cridler, Third Assist. Sec. of State, to Mr. Moseley, jr., Sept. 0.
1899, id. 20(5.
" No one is admitted to Russia without a passport. It mu.st be
viseed by a Russian diplomatic or consular rej)resentative. Upon
entering Russia it should be shown at the first (lovernment house,
and the holder will be given another passport or permit of sojourn.
996 . PASSPORTS. [§ 520.
At least twonty-four hours before departure from Russia this permit
should be presented and a passport of de])arture will Ke granted and
the original passport returned. A fresh permit to remain in Russia
must be obtained every six months."
Notice of Depjirtinent of State, Aug. 1, 1901, For. Rel. 1901, 453.
As to the re<iuirenuMits of the Russian (tovernnient that foreign ecclesi-
astics desiring to enter Russia must have tlie special authorization,
of the Ministry of tlie Interior, see Mr. Wurtz. charge at St. Peters-
burg, to Mr. Blaine, Sec. of State,' No. 72, Dec. 16, 1889, 40 MS. Desp.
from Russia. This dispatch related to the case of the Rev. Mr.
Wriglit, whose passport the Russian consul-general at (jonstantinoi)le
refused to vise, in order that he might i)roceed through Russian
territory to Persia. The Russian foreign office, as Mr. Wurtz
reported, said that tlie authorization of the Ministry of the Interior
was " readily and promptly granted, and to all who have not made
themselves obnoxious by their attempts to proselyte from the ortho-
dox faith, or against whom nothing objectionable is liuown ; the
authorization could in fact be telegraphed for from Teheran, Con-
stantinople, or elsewhere."
See, however. For. Rel. 1895, I. 195, where it is stated that the Russian
Government in 1891 refused to permit an American missionary to
pass through Siberia en route from China to the United States, on the
ground that no ecclesiastics were allowed to go through Siberia ; and
where it is also stated that, on the same ground. Count Cassini,
Russian minister at Peking, in 1895 declined to grant permission
(which was, however, subsequently accorded at St. Petersburg) for
certain American missionaries in China to seek temporary asylum in
Russian territory if it became necessary for the protection of their
lives.
" Correspondence is on foot touching the practice of Russian con-
suls within the jurisdiction of the United States to interrogate citizens
as to their race and religious faith, and upon ascertainment thereof
to deny to Jcavs authentication of passports or legal documents for
use in Russia. Inasmuch as such a proceeding imposes a disability,
"which in the case of succession to property in Russia may be found
to infringe the treaty rights of our citizens, and which is an obnox-
ious invasion of our territorial jurisdiction, it has elicited fitting
remonstrance, the result of which it is hoped will remove the cause
of complaint."
President (.'leveland, annual message, Dec. 2, 1895, For. Rel. 1895, I. xxxii.
See Jurisdiction, supra, § 175.
April 21, 1904, the House of Representatives resolved " that the
President be requested to renew negotiations with the governments
of countries where discrimination is made between American citi-
zens on the ground of religious faith or belief to secure by treaty
or otherwise uniformity of treatment and protection to American
citizens holding passports duly issued by the authorities of the
§526.] VISE. 997
United States, in order that all American citizens shall have equal
freedom of travel and sojourn in those countries, without regard to
race, creed, or religious faith." This resolution was communicated
to the Russian Government, with an expression of a desire for the
putting an end to the discriminations there prevailing "betw^een dif-
ferent classes of American citizens on account of their religious
faith."
Mr. Hay, Sec. of State, to Mr. MoCormick, ambass. to Russia, No. 127,
July 1, 1904, For. Rel. 1904, 700.
See Mr. McCormick to Count Lanisdorff, Aug. 22, 1904, id. 791.
See, also. President Roosevelt, annual message. Dee. (5. 1904.
Feb. 12, 1889, the Turkish minister at Washington informed the
Department of State that the passports of travelers resorting to
Turkey must be viseed by an Ottoman consular officer. This notifi-
cation was published by the Department through the press and other-
wise (Consular Reports, No. 103, March 1889). The Ottoman regu-
lations then in force were understood to be satisfied by a vise in the
country of last departure before entering the Turkish dominions.
The Department hesitated to publish, lest it might seem thereby to
sanction, a later notification that all passports of American travellers
for Turkey were required to be viseed by the Turkish consul-general
at New York.
Mr. Blaine, Sec. of State, to Mavroyeni Bey, Turkish min., Feb. 18, 1890,
MS. Notes to Turkey, I. 520.
In 1888 the German Government made a regulation requiring all
foreigners entering Alsace-Lorraine from France to have their pass-
ports viseed by the German embassy in Paris.
For. Rel. 1890, 316 ; Mr. Rives, Assist. Sec. of State, to Mr. Dirks. Jan. 14,
1889, 171, MS. Dom. Let. 319; Consular Rei)orts, No. 94, June
1888, XXVI. 4(51.
Complaint having been made by AVilliam Trauver, an American
citizen, of the refusal of the Austrian consul at Breila, Roumania,
to vise his passport, the matter was brought to the attention of the
Imperial and Royal Government, whose explanations were accepted
as satisfactory. It appeared among other things that one of the
reasons why the consul refused to vise the passport was that under
the Imperial and Royal regulations the vise was required only in
cases of Russian and Turkish passports, and this because of recip-
rocal agreement.
For. Rel. 1899, .52-60.
W., a citizen of the United States, bearing a passport from the
Department of State, was expelled from Prussian territory in March
998 PASSPORTS. [§ 52C).
1894, on the ground that he was attempting to gain recruits for the
Mormon sect, and was thus carrying on an agitation which was " not
in harmony witli the laws of the country." At the time of his expul-
sion, the police authorities at Sorau made on his passport the follow-
ing endorsement : " Expelled from Prussian territory by direction of
the Royal Government president at Frankfort on the Oder, of March
27, 1894.'*' Of the expulsion no complaint was made; but, on the
ground that the endorsement had '" so impaired the value of the pass*
port, not only in other parts of Germany, but everywhere else," that
W. was compelled to take out a new one, Mr. Runyon, the ambas-
sador of the United States at Berlin, requested the foreign office to
" cause such directions to be given as to prevent in the future the
making by any German official upon an American passport of any
endorsement or statement except a vise." The foreign office replied :
" Though the order of expulsion must ... be maintained, the
procedure of the police authorities of Sorau . . . , who have made
a statement on the passport of Weiler, . . . can not be approved.
Authority for Prussian officials to make statements of such a nature
on passports of foreigners who have been expelled does not exist ; the
police authorities have acted of their own accord on this point . . .
The Royal Prussian minister of the interior has taken steps to pre-
vent for the future the making of such unallowable statements on
passports.*'
Baron Rotenlian, to Mr. Runyon, Dec. .S. 1805, For. Rel. ISOf), I. M\, reply-
ing to a note of Mr. Runyon of Sept. li, 180.5. id. .">40.
The United States having protested against the act of the Russian
consul at Konigsberg, in making on the passport of a naturalized
American citizen the endorsement that " the vise of the passport is
refused, in view of the fact that the bearer of it has been naturalized
in the States of North America without the permission of the Gov-
ernment," the passport being thus defaced and its usefulness impaired,
the Russian Government replied that the necessary steps had been
taken " to prevent the recurrence of such cases in future."
For. Rel. 180(5, .517-519.
" By article 76 of the Portuguese consular code the captains of
ships are obliged to present at the consulates or vice-consulates at the
moment of their departure for Portuguese ])orts the necessary docu-
ments, as also the passports of passengers. If these latter are for-
eigners their passports must be viseed at the consulates or vice-
consulates, but it is not required that all the passports should be
made out by the consuls or vice-consuls. The vises for foreign
passports amount to about 80 cents."
Viscount (las Nogueiras, Portuguese niin.. to Mr. Bayard, Sec. of State,
May 15, 1887, For. Rel. 1887. 0-^7. o:8.
§ 526.] VISE. 999
This was written in reply to a note of Mr. Bayard's of May 11, 1887, to
tlie Portuguese minister, calling attention to the statement of a firm
in Boston that passengers Ijouiul for the Azores were required by
the Portuguese vice-consul to provide themselves, before sailing, with
Portuguei-e passi)ortSi at a <ost of $3.80 each.
See, also. Mr. Bayard. Sec. of State, to Mr. Lewis, min. to Portugal, No.
r»2. May l.**,, 1887. For. Rel, 1887, 935.
AMiile the right of foreign governments to require passports is not
disputed, yet with the exaction of heavy charges for vises may be a
subject of international comj)hiint.
Mr. Frelinghuysen. Sec. of State, to Mr. Foster, nun. to Spain, Mareli 12,
1884. MS. Inst. Spain. XIX. 504.
" In respect of the Spanish consular vise attached to a passport (in
itself very onerous'), it is noticeable that double the charge is made
for the authentication of the passports of travelers from the United
States than is imposed in the case oi the optional vise of the passport
of a traveler going to Cuba from Europe, and providing himself with
that means of establishing his identity and right to courteous treat-
ment. And still another discrimination appears, for certain for-
eigners, Germans in particular, going from our ports to Cuba, are
favored by the collection of a lower fee for the vise of the Spanish
corisuls in the United States than American citizens are compelled to
pay for the .same service. Unreasonable and only applicable to a
part of the foreign travel with Cuba, the passport system there is
thus made an engine of an unfriendly discrimination.'' , -
Mr. Bayard, Sec. of State, to Mr. Muruaga, Span. min.. May 19. 1886. MS.
Xotos to Spain. X. -IliO.
See, also. Mr. Bayard. Sec. of State, to ]Mr. Foster, min. to Spain. No. 3.30,
May (■). 188.5. For. Bel. 1885. 711 ; Mr. Foster to Mr. Bayard. No. .3.34.
.Tune :'0. 1885. id. 72(); Mr. Bayard to Mr. Foster. No. 390. Aug. 21,
1885. id. 751.
The Spanish minister, in an interview on June 11, stated that his
government would "" relieve citizens of the United States of the pres-
ent unequal and discriminating charge of $4 for the consular vise, as
against the $2 fee for the vise of German and other passports."
Mr. Bayard, Sec. of State, to Mr. ('urry. min. to Spain. .Tune 14. 1886. MS.
Inst. Spain. XX. 2:?(».
June 10, 1887, the Spanish minister stated that he had instructed
Spanish consuls in the United States to furnish a vise to American
citizens going to Cuba at a cost of $1.
Mr. .Muruaga. Span. min. to Mr. Bayard, Sec. of State. June 10, 1887, For.
Rel. 1887, 1030, 1031.
1000 PASSPORTS. [§527.
3. False Use.
§ 527.
A passport fraudulently obtained will be treated by the Depart-
ment of State as a nullity.
Mr. Marcy, 8ec. of State, to Mr. Jackson, Jan. 10, 1854, MS. Inst. Austria,
I. 89.
As to the procedure on impeachment of a passix>rt by a foreign govern-
ment, see supra, § 525.
^Vhere a passport is gravely impeached, it should be supported, in
order to be efficacious, by an adequate certificate of naturalization.
Mr. Frelinghuysen, Sec. of State, to Mr. Cramer, March 26. 188.3, MS.
Inst. Switz. II. 173.
By article 977, of the Russian Penal Code, " whoever falsely trans-
fers his passport to another, that the latter may live under its pro-
tection or that the latter may pass the frontier, and also whoever
passes from one place to another by means of such a modified or
falsified passport, is subject to imprisonment from two to four months
or to arrest from (3) three weeks to (3) three months."
Mr. Smith, min. to Russia, to Mr. Blaine, Sec. of State, No. 20, July 5.
1890, 41 MS. Desp. from Russia.
The Turkish passport regulations, as well as the Ottoman Penal
Code (art. 155), provide for the punishment of persons who obtain
passports under a false name, or aid as witnesses in the procurement
of such a document.
Mr. Frelinghuysen, Sec. of State, to Mr. Wallace, min. to Turkey, No.
193, May 20, 1884, MS. Inst. Turkey, lY. 138.
" Should a case of disputed identity be presented raising doubt as
to whether the actual possessor of the passport issued to Friedrich
Hillebrandt is the person therein mentioned, a case of fraudulent
impersonation of the rightful owner of a genuine passport would
arise- which this Government would be happy to assist in investigat-
ing through its legation in Austria-Hungary and in regard to which
it would adopt such course; as the facts developed would warrant.
" It is submitted, however, that your note of the 1st instant does
not present such a case for consideration, and seems to admit of no
other response than that already made, namely, that the passport
No. 3897, issued to Frederick Hillebrandt, is what it purports to be,
a genuine certification of the citizenship of the person to whom it was
lawfully issued."
Mr. Uhl, Act. Sec. of State, to Mr. Ilengelmiiller, Aust.-Hung. min.. May 22,
1895, MS. Notes to Aust. Leg. IX. 217.
§528.] SPECIAL PASSPORTS. lOOl
The legation of the United States at Vienna in 1899 cancelled a
passport which had been found to have been obtained by false swear-
ing. Subsequently, the individual who had obtained it and who had
a criminal record in Austria was arrested in that country, and the
Austrian authorities, who desired to prosecute him for having had in
his possession for use a document fraudulently obtained, applied to
the legation for the false papers on which the passport was issued.
The legation having applied for instruction, the Department of
State replied that if a foreign court, in its endeavor to convict a per-
son of the offense of possessing a passport said to have been obtained
by fraud could " adjudge whether the passport was rightly or fraudu-
lently obtained, it could, in like manner, assume to pass upon the
legality of an act of naturalization, an assumption that we have
always strenuously contested," and that consequently the turning
over of the papers to the Austrian authorities could not be authorized.
Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, Nov. 7,
1899, For. Rel. 1899, 78.
Where a foreign-born person, who claimed to have been naturalized
in the United States, fraudulently obtained a passport as a native
citizen, and when questioned on the subject in Germany was unable
to exhibit a certificate of naturalization, the embassy in Berlin was
instructed to notify the proper authorities in German}^ that he was
not a citizen of the United States and that his passport had been
withdrawn.
• For. Rel. 1904, 315-316.
VIII. SPECIAL PASSPORTS.
§ 528.
Special passports, stating the official position or the occupation of
the holder, and omitting his physical description, have from time to
time been issued by the Secretary of State to citizens of the United
States. Aug. 19, 1874, Mr. Fish, as Secretary of State, made it a rule
to issue such passports " only to prominent officials about to visit for-
eign countries on public business " and to officers not below the rank
of major in the Army and relative rank in the Navy. This limitation
was, after Mr. Fish's time, disregarded. In May, 1897, the rule was
established of granting special passports to officers of the Army and
the Navy, for whom the Secretary of War and the Secretary of the
Navy, respectively, might request them, with the understanding that
they would not be solicited for purposes of purely private and per-
sonal convenience. In all cases the statutory fee of a dollar is
required.
1002 PASSPORTS. [§528.
Safe conducts, in a form similar to that of special passports, have
also been issued to aliens, especially as bearers of dispatches.
So, also, letters of safe conduct, commonly called passports, are
^ven to, foreign ministers traveling in or departing from the United
States.
Hunt's Am. Passport, Tr*^'
The following is an interesting example of ft document partal<ing of the
nature both of a safe coiKluct and a passport :
"To all whom these presents shall come, greeting:
"The bearer hereof, Raron Humboldt, a sul).1ect of Ills Prussian Majesty
and member of the Koyal Acadeniy of Seiences of Prussia, witli his
secretary, Mr. Bonpland, being about to return from the TTnit-nl
States, with forty boxes of plants and other collections relating to
natural history, all his own property, by way of France to Berlin,
from an expedition into South America and Mexico, undertaken at
his own expense for the improvement of natur.il history: These are
to require the conunanders of all armed vessels of the T'nited States,
public and private, to suffer them to pass without hindrance, and in
ease of need to give them all necessary aid and succor in their voy-
age : and in consideration of the respect due to persons engaged in
the promotion of us-eful science, they are in like manner recommended
to the favorable attention of the officers, citizens, and subjects of all
friendly powers.
" In faith wliereof. I. James Madison. Secretary for the Department of
State of the United States of America, have signed these presents
and caused the .seal of my office to be annexed hereto, at tlie city of
Washington, this 23d day of .June, A. D. 1804, and in the 28th year of
the Independence of the said States.
(L. S.) "James Madison."
14 MS. Dom. Let. 3.31.
"Within the last few years the subject of the issuance of special
passports of this character [to unofficial citizens of the United States]
has had careful examination, with the conclusion that they do not
r^atisfy the statutory definition of a passport as regards the certifica-
tion of citizenship. For such certification but one form of passport
is authorized, and this the Department issues upon due prpof of citi-
zenship and payment of the prescribed fee. The s])ecial i)ass})ort
appears properly to be limited to the ca.ses of persons going abroad
in fulfillment of some official trust or duty, and in such cases is neces-
sary as a certification of the bearer's public character."
Mr. Olney, Sec. of State, to Mr. Wagner, Nov. 25, 1895, 20(5 MS. Dom.
Let. 200.
" The Department does not question the exigency which required
the employment of a bearer of despatches, the legation necessarily
being the best judge (m this point, but any document given him by
the legation for his safe conduct was not, properly speaking, a pass-
port, if he was not an American citizen, and no fee was charged, as
§529.] LOCAL PAPERS. 1003
appears to have been the case. The law, section 4076, Revised Stat-
utes, forbids the issuing of a passport to any one Avho is not a citi-
zen of the United kStates, and it is not permissible to issue one without
collecting the fee. (See Secretary Sherman's decision, page 25, ' The
American Passport.')"
Mr. Hay. Sec. of State, to Mr. Storer. No. .313, March 25, 1901, MS. Inst.
Spain. XXIII. 117.
" Special passports are not to be issued by our agents abroad, and
no passport whatever is to be issued without colk'cting the fee of
One dollar required by law."
Mr. Hay. Sec. of State, to Mr. Storer, No. .S13, March 2.5, 1901. MS. Inst.
Spain, XXIII. 117.
Mr. A. Dudley Mann having complained of the refusal of the Rus-
sian legation in Paris to vise his passport, Mr. Everett said :
"As you had no despatches for Russia, the President entirely ap-
proves your conduct in not claiming any favor as a bearer of de-
spatches, although you were in i)ossession of a passport in that
capacity. Some looseness of practice has crept in, with reference to
passports of this kind, of an injurious tendency. Originally giren
to those actually charged Avith (k^spatches, they have iK^en retained
for ordinary use after the despatches have been delivered at their
destination. This circumstance has sometimes given an unreal char-
acter to these passports, which teuds to impair their value in the
hands of tho.se entitled to them, besides being objectionable in other
respects."
Mr. Everett, Sec. of State, to Mr. Mann, Dec. 13, 1852, 41 MS. Dom. Let.
138.
' IX. LOCAL PAPERl^.
1. European Countries.
§ 529.
The meaning and interpretation of section 108, Consular Regula-
tions, " seems very plain and obvious. • In cities or
ermany. t()wns in (lemiany where, for purix)ses of ideutifica-
i ion, sojourning, foreigners are required by the local laws or municipal
regulations to deposit their passports Avith the police or other local
authorities, as is understood to Ik^ the case in Hamburg, Berlin, and
generally in cities and towns throughout (xermany, * a consular cer-
tificate may be granted setting fortli the facts as a p pen ring from the
passports, but only with a view of complying with the law or regu-
lation.'
1004 PASSPORTS. [§ 529.
" The person seeking such certificate there must present to the con-
sul a passport, and the passport must not be over two years old. The
certificate should be confined in its statements to ' the facts ai)pearing
from the passport' It should also state the time at which it (the
certificate) will cease to he effective, which time is to be limited by
the date at which the passport will be two years old, and it should
also state expressly and explicitly that it is only to be used in the
locality where it is issued, and there only for the purpose of com-
pliance with the local laws and regulations of such locality. More-
over, in no case is such consular certificate to take the place of or to
be used in lieu of a passport."
Mr. Frelinghuysen, See. of State, to Mr. Sargent, July 2G, 1883, MS. Inst.
Germ. XVII. 293.
" No passport is good in Eussia for more than six months, and must
then be replaced by a Russian local permit to reside
or travel, renewable from time to time, and always
liable to be demanded by local officials or hotel keepers."
Mr. Bayard, Sec. of State, to Mr. Straus, uiin. to Turkey, No. 14, May 10,
1887, MS. Inst. Turkey, IV. 573.
For a case of the arrest of an American citizen in Russia, with a passport,
for having failed to exchange his passport for a Russian permit in
the first province of the Empire which he entei-ed, see Mr. Freling-
""^ huysen, Sec. of State, to Mr. Hunt, No. 7, July 22, 1882, MS. Inst.
Russia, XVI. 287.
The American consul at Beirut, having protested against the
Turkish regulation requiring local passes or teskereh,
" ®^" to be obtained for traveling in the interior, under
penalty of a fine of two Turkish livres, or about 8 cents, as an annoy-
ance to travelers as well as an infraction of Art. IV. of the treaty of
1830, the Department of State said :
" It is probable that in Turkey the variety of languages and races
to be found in her dominions renders a foreign passport, which is in
a language utterly unintelligible to local officials in districts remote
from Constantinople, much less efficient and useful in protecting
travelers than a Turkish teskereh^ with familiar language, seals, and
signatures. Such a document may fairly be considered as a safe
conduct^ and on the ground of personal safety alone it might be wiser
for travellers to take pains to inform themselves of the rules enforced
in Turkey and waive the slight annoyance and expense attendant on
observing them, in consideration of the additional feeling of security
therefrom. . . . Article I. o'f the treaty [of 1830] says : ' On
both sides travelling passports shall be granted.' . . . The small
penalty exacted for the absence of a teskereh is not applied as the
result of a trial by court, but is merely a police regulation. The consul
§ 529.] LOCAL PAPERS. 1005
says that other powers have acquiesced in these passport regulations,
and it might be better, as long as there is no national discrimination in
the treatment of our citizens, to reserve the enforcement of our
judicial privileges for graver questions. The enlightened city of
Berlin enforces a fine against any one, whether foreigner or citizen.,
who, after being twice summoned, neglects to appear in person with
their papers at the police office, and a third summons renders the de-
linquent liable to imprisonment. The theory of foreign govern-
ments is that stringent passport regulations protect innocent trav-
ellers against troublesome mistakes in identity for guilty ones or
from other annoyances to which strangers are everywhere liable.
" It might, however, be well for you when, in your judgment, a
favorable opportunity offers, to represent to the Turkish Government
that while our countrymen are scrupulously desirous of observing all
the laws and ordinances of the countries in which they travel, yet
that it is hoped that some mitigation would be acceptable of the pres-
ent Turkish passport regulations, which are found to be oppressive for
citizens of a country so distant as our own, and to persons so little
accustomed to any travelling restraints.
" You may suggest, for instance, that the vise of the consul at the
last port should be dispensed with, and the fine remitted in cases
where through ignorance of regulations the local teskereh has not
been procured. It would also perhaps be useful to our citizens if
your legation and the consulates in Turkish dominions could have a
translation of the Turkish passport regulations printed in good sized
type, to be displayed in a conspicuous place for the benefit of our
travellers."
Mr. Bayard, Sec. of State, to Mr. Straus, luin. to Turkey, No. 14, May
10, 1887, MS. Inst. Turkey, IV. 573.
" The requirement of Turkish teskerehs for traveling Americans, of
which you complain, is not regarded by the Department as unreason-
able, in view of the general inability of the native Turk to compre-
hend the purport of a United States passport. Such travel permits
are recognized in China and Japan, and the laws of some European
and South American countries require locally issued certificates for
traveling or sojourning foreigners."
Mr. Uhl, Acting Secretary, to Mr. Metheuy, March 8, 1895, 201 MS. Doin.
Let. 103.
In consequence of the Armenian troubles, the Turkish Government
suspended for a time the authority of the teskereh office or bureau at
Constantinople to issue travel permits for the interior on a consular
application, and required an irade to be obtained from the palace.
In November, 1898j however, the former practice was restored, and a
1006 PASSPORTS. [>^ 530.
notice was issued that foreigners desiring to travel in the Empire
might "in future obtain local passports on producing an ilnui-haber
(aj^plication) from the consulate of their country, setting forth their
identity, the object of their journey, the places to which they wish to
go, as well as the approximate duration of the stay they intend
making."
For. Itel. 1898, 1100.
The requirement that a foreigner traveling in Turkey must have
a Turkish teskereh, or travel permit, *■' has been inforce for many
years, and as long as it is not abused is no doubt a very sensible and
proper police regulation, as few if any of the Turkish agents can read
either English or French."
Mr. Leishiuan, min. to Turkey, to iVTr. "ETay, Sec. of State, July 5, 1901,
For. Rel. 1901, 523. •;
In October, 1900, complaint was made to the legation of the United
States at Constantinople by the United States consul at Ezerum, that
the Rev. Mr. Cole, an American missionary at Bitlis, was deprived
of his treaty rights by the refusal of the governor-general to grant
him a teskereh or traveling passport. As the governor stated that
he was acting under orders from Constantinople the legation asked
that he Be directed to issue the teskereh. Such a direction Avas prom-
ised, and it seems to have been given, but to have been afterwards
countermanded; On learning this fact, Mr. Leishmaiij the American
minister, authorized Mr. Cole, who had then been unable to attend to
his affairs in various places outside of Bitlis for nearly a year, to
travel with his American passport wherever his duty or interests
might require, always taking care to advise the governor of his move-
ments, and informed the Porte that he should hold the Government
responsible for Mr. Cole's safety and strictly accountable for any
damage, annoyances, or inconveniences which he might suffer. It
seems that the course of the Turkish officials was due to Mr. Cole's
active interest in the Armenian cause.
For. Rel. 1901, 523-529.
2. American Countries.
§530.
" It sometimes happens in Spanish- American countries that an
alien is required to deposit his passport with the legation or a consu-
late and receive a certificate of registry according to local formula."
Mr. Aflee, Acting Sec. of State, to Mr. Terres, Sept. 2G, 1893, For. Rel.
1894,346.
§530.] LOCAL, PAPERS. 1007
" I have to acknowledge the receipt of your No. 33 of the 2d
instant. You therein call attention to the general
Argentine Bepublic. unj;- ij.t-> * x-
use by all loreign consuls at liuenos Ayres, excepting
the consul of the United States, of forms of certificates of nationality,
known as " papeletas," and you state that under the regulations
governing the mobilization of the national guard the police have
authority to arrest persons not reporting for duty unless they pre-
sent a "papeleta " evidencing the fact of foreign birth or citizen-
ship, which being the only form of certificate known or accepted
by the police, is considered preferable to a regularly vised passport.
You inclose the forms of certificates used by the foreign consuls
and recommend, in view of their general use, the adoption of some
such certificate for 3^qur legation and our consulate at Buenos Ayres.
You also ask, in the event of the adoption of such form, for instruc-
tions as to its use, and request information on several points which
relate to the subject.
" The proposed form which you inclose (inclosure No. 4) is quite
inadmissible. It is simply a passport in Spanish. There are only
two ways of certification of American citizens available: cc r.
" (1) Deposit of regular passport in the legation or consulate and
the issuance to the bearer of a certificate of such deposit and of his
registration in the legation or consulate. The French form (in-
closure No. 2 to your dispatch) might serve.
" (2) Indorsement on the passport itself of a certificate in Spanish.
A Spanish translation of the following form might be used :
The within passport, issued by , dated , attests that is
a citizen of the United States of America, aiid as sucli is entitled to the rights
and ijrivileges of svich a citizen in a foreign country:
Seen and noted in this legation (or consulate).
Good for all the territory of the Argentine Republic.
" No person can receive a certificate of citizenship in lieu of a pass-
port. Whatever certificate is given must be predicated upon a regu-
lar passport."
Mr. Greshani, Sec. of State, to Mr. Buchanan, niin. to Arg. Kep., No. 24,
Aug. 15, 1894, For. Kel. 181)4, 19. See infra, § 542.
The laws of Guatemala, requiring all foreigners to be registered as
such and to produce evidence of their alienage in the
form of a passport, or a certificate from the diplo-
matic or consular representative of the country to Avhich they belong,
the minister of the United States, who was then charged with the pro-
tection of Chinese in Guatemala, was instructed that the diplomatic
and consular officers of the United States, it being understood that
they Avere not acting as representatives of Cliina, and therefore could
not grant original certificates of Chinese citizenship, might, with the
1008 PASSPORTS. [§ 530.
concurrence of the Giuitemalan minister for foreign affairs, certify
substantially as follows: "That claims to bo a sub-
ject of His Majesty the Emperor of China, resident in Guatemala,
and that upon proving his status as such Chinese subject, he is under
the protection of the Government of the United States and entitled
to the good offices of the diplomatic and consular officers thereof in
case of need, in pursuance of an understanding between the Govern-
ments of Guatemala and China to that end."
For. Rel. ]89<^), 379-380.
" The fee of $4 prescribed for the issuance of the Haytian certifi-
cate of travel and residence is presumably what is ob-
jected to by persons resorting to Hayti, but as this
is a purely municipal tax imposed indiscriminately, there is no
ground for contesting it."
Mr. Uhl, Acting Sec. of State, to Mr. Terres, Aug. 24, 1894, For. Rel.
1894. 347. ^
Mr. Stuart, minister of the United States at Montevideo, reported,
April 9, 1897, that, in view of the civil war then rag-
ing in Uruguay, he had issued to various citizens of
the United States " protection papers " in the following form :
Legation of the United States.
Montevideo, (date).
To u-Jiom it may concern:
This is to certify that the bearer, (iiame) , is a citizen of tlie
United States, and is entitled to protection as such.
Description : Age, years ; height, ; eyes, — ; nose, ;
mouth, ; hair, ; complexion, .
[Red seal of legation.] . (Official signature.)
The Department of State replied :
" It is supposed that these certificates of protection are required by
the local authorities in pursuance of some rule of registration or ma-
triculation such as prevails in the various Spanish-Americiin coun-
tries.
" The question of the issuance of such certificates came up for con-
sideration in 1894, when Minister Buchanan reported the custom of
the foreign consuls at Buenos Ayres to issue forms of certificates of
nationality known as ' papeletas ' in consequence of the regulations
governing the mobilization of the national guard, under which the
police had authority to arrest persons not reporting for duty unless
they presented a ' papeleta ' evidencing the fact of foreign birth
or citizenship, which, being the only fopm of certificate known to or
accepted by the Argentine police, was considered preferable to a reg-
ular viseed passport. Those papeletas were required to be in the
Spanish tPngu^j and Mr. Puchanftn submitted a proposed form for
§ 531.] LOCAL PAPERS. 1009
the stated purpose. The Department ruled that any form which
originally certified the fact of citizenship was quite inadmissible,
being simpiy a passport in the Spanish language. The onl}' certifi-
cate of citizenship issued by the United States is a passport, and the
giving of any document of the nature or in lieu of a passport is not
authorized. Mr. Buchanan was instructed that only two waj's of
certification or matriculation of American citizens Avere available —
either (1) deposit of the regular passport in the legation or consulate
and of his registration in the legation or consulate, or {2) indorsement
on the passport itself of a certificate in Spanish to the eifect that the
within passport attests that A. B. is a citizen of the United States of
America, and as such is entitled to the rights and privileges of such a
citizen in a foreign country.
" In view of this rule, the Department can not approve the ' protec-
tion i^apers ' Avhich you report having given to the fourteen persons
named. They should have applied for and received regular pass-
ports. If a further protection paper in Spanish is needed, the form
prescribed for use in the Argentine Republic might conveniently be
followed by you upon the deposit of the regular passport in the lega-
tion or a consulate of the United States, such certificate being given
free of charge. The form so authorized is as follows :
" El infrascrito consul do los Estados Unidos de Ainerioa. en
— certifica que esta niatriculado en este eonsulado conio eiudadano
do los Estados TTnidos de Auierlca, y <iue es portador del pasaporte No.
firmado por .
" Filiaeion : Edad ; estatura ; frente ; ojos
; boea ; barba ; pelo ; tez ; eara .
" Firma del portador :
" No. ."
Mr. Sliernian, Sec. of State, to INIr. Stuart, niin. to ITruguay, May 25, 1897,
For. Hel. 1897, 593, "HW.
o. China.
§ 531.
In China three different kinds of documents, in the nature of pass-
ports, are to be distinguished — passports, travel certificates, and
transit passes.
Passports are issued by the American minister, in the usual form.
Travel certificates are issued by the consuls, in order to satisfy the
requirements of the local authorities.
Transit passes are issued for the exportation of native produce, in
order to avoid the likin exactions.
Owing to the long distances and the difficulty oftentimes of connnu-
nicating with Peking, the custom grew up in China of sending to the
H. Doc. 551— vol 3 04
1010 PASSPORTS. [§531.
consuls blank passports, signed and sealed by the minister, to bo
issued as occasion arose. This custom was approved by the Depart-
ment of State, in its No. 79, of Sept. 11, 187(5, to the American min-
ister in China. In 1884, however, the practice was discontinued, and
all blank ])assports entrusted to the consuls were recalled by the lega-
tion, under instructions of the Department of State."
In view of the difficulty an applicant for a passport might encoun-
ter in China, at places remote from a consular office, in executing the
oath prescribed by the Department of State's passport circular of
Feb. 23, 1887, as a condition of the issuance of a passport, Mr. Denby,
then American minister at Peking, suggested a form of certificate, to
be signed in the presence of a witness, in places Avhere no consular
officer was accessible. This form, with certain modifications, was
approved.''
In 1890, instructions were given to require the attestation of two
witnesses, instead of only one.*"
In terminating the practice under which passports were issued by
the American consuls in China, the Department of State took steps
to authorize the issuance by consuls of travel certificates, in conform-
ity with the system in vogue under the stipulations of Art. IX. of the
British treaty of 1858, the benefits of which the United States in-
voked under the most-favored-nation clause. By this treaty British
subjects may '' travel, for their pleasure or for purposes of trade, to
all parts of the interior, under passports which will be issued by their
consuls, and countersigned by the local authorities." '^
" These so-called passports, issued under the British treaty, . . .
are not passports in the international sense, but local certificates or
passes granting permission to the bearer thereof to go into the inte-
rior from the treaty port where they are issued.
o Mr. Frelinghuysen, Sec. cf State, to Mr. Young, niiii. to Cliiiia, Xo. 370, Jan.
19, 1885, MS. Inst. China, III. G81. referring to instruction Xo. 3412, by which tlie
discontinuance was ordered.
6 Mr. Bayard, Sec. of State, to Mr. Denby, No. 225, Aug. 24, 1887, MS. Inst.
China, IV. 300.
c Mr. Blaine, Sec. of State, to Mr. Denby, uiin. to Cliina, Xo. 523, May (►. 18!K).
For. Rel. 1890, 182. See Mr. Denby's Xo. 1058. Feb. 2(5,' 18JK), and Xo. lOlil. Marcli
6, 1890, For. Rel. 1890, 174, 175. Accompanying Mr. Blaine's Xo. 523. of .May (>,
1890, For. Kel. 1890, 182, is a circular of the Department of State to tlie consuls
in China, of May 1. 1890, which is cited in Mr. Gresham. Sec. of State, to Mr.
Grip, Swedish & Xor. min., Oct. 7, 1893, MS. Xotes to Sw. & Xor. VII, 5.30:
" I have to acknowledge the receipt of your dispatch Xo. 23, of the 10th of
August last, reiwrting that the Chinese Government has instructed its officials
at Canton to recognize American i)assiH)rts issued by our diplomatic and consu-
lar officers outside of China who are authorized to issue such documents. The
consuls at Hongkong and Canton have been informe<l by the Department of this
satisfactory disix)sition of the matter." (Mr. Hay, Sec. of State, to Mr. Conger,
ruin, to China, Xo. 02. Oct. 15, 1898, MS. Inst. China, V. Gil.)
<« 48 Brit, and For. State Pai)ers, 49.
§ 531.] LOCAL. PAPERS. 1011
" These certificates derive their validity from joint issuance by the
consul and the local Chinese authority, but the initiative in issuing
them belongs to the consul, and the Chinese cannot refuse to counter-
sign them.
" These certificates are moreover not merely temporary and local,
but are limited to the particular journey to be undertaken in China.
When the specified time expires, or the journey is performed, the cer-
tificate loses validity and another must be issued if the bearer wishes
to continue in the interior or make another journey thither.
"All this points to an instrument which supplements an ordinary
general passport which every nation has the independent right to
issue to its subjects and which other nations may disregard at their
peril.
" The Chinese certificates are at the most merely transit passes.
" We have, however, decided many times that no such pass or cer-
tificate, which carries on its face recognition of the bearer's nation-
ality, can be issued in lieu of a regular passport as prescribed by
statute.
" It is not, however, to be expected that an American citizen is
to be required to tak6 out a new passport every time he journeys
more than 30 miles inland from a treaty port, and be compelled to
pay $5.00 each time.
" The true solution would seem to be to provide for the issuance
by the consuls of a form of limited transit certificates, but only on
presentation of a passport previously issued by the legation, or upon
filing a duly attested application for a passport, with evidence of
citizenship, accompanied by the legal fees.
"An American citizen's rights, once established, would entitle him
to a transit pass from the consul, in conformity with the British
treaty, without the necessity of referring the application to the lega-
tion, and without the necessity of paying a new passport fee each
time.
" To avoid the difficulties and delays complained of, and which are
shown to be excessive, the transit certificate may be given when the
formalities for a legal issue of a passport have been complied with.
" The passport, when issued by the legation, could be sent to the
consul, to be by him retained as his Avarrant for the issuance of the
certificate or transit pass- until the party returns. In case the lega-
tion refuses to issue a passport the consul should notify the local
authorities that the certificate is cancelled. The knowledge that the
certificate is liable to be so cancelled would seem to be a sufficient
safeguard against mala fides in applying for one.
" In order that there may be uniformity of action, you are in-
structed to prepare a form of consular travel certificate (to be put
1012 PASSPORTS. [§^31.
into Chinese and printed in jiarsdlel columns), and submit*the draft
thereof for the consideration and action of this Department."
Mr. Frellnglmysen, Sec. of State, to Mr. Young, uiin. to China, No. 379,
Jan. 19, 1885, MS. Inst. China, III. 081.
" I have received your No. 22, of May 15 last, accompanied by a
form of consular travel certificate," in the English and Chinese lan-
guages, to be issued to American citizens desiring to visit the interior
of China, such certificates to be good for one year, and in every case
Avhere the particular journey is not stated, the nimiber of provinces
in which the holder may travel is to be restricted to five. ' In case
any of our citizens,' you say, ' should desire to make an exceptional
journey, a special pass should in every instance be obtained.'
" Your dispatch has, accordingly, had attentive consideration and
the amendments suggested by you appear to meet the case fully.
The certificate system, with the checks and restrictions noAv imposed,
may be put into operation."
Mr. Bayard, Sec. of State, to Mr. Smithers, charge. No. 448, July 15,
1885, MS. Inst. China, IV. G3. •
" Your opinion that travel certificates, when issued by consuls to
parties who have applied for passports, but who are anxious to
depart on a journey into the interior before their application can be
acted upon by your legation, should be limited to be good only for
such journey, was fully set forth in j^our Xo. 1018 of December 30,
1889, and has already received the approval of the Department in its
instruction No. 498 of February 20, 1890.
" In cases, therefore, where travel certificates are required by the
local authorities they may be issued by United States consuls in China
to two classes of persons:
"(1) Those who possess American passports; and,
"(2) Those who have actually and regularly applied for such
passports.
" No objection is now perceived to the continuance of the present
practice of issuing to those who come within the first of these cate-
gories travel certificates good for one year; and great hardships
might, as pointed out in Mr. Smithers's No. 22 of May 15, 1885, be
imposed upon them, especially when engaged as missionaries at a
distance from any consulate, by the adoption of any other rule.
" But with regard to the second class, where of necessity the val-
idity of the travel certificate is conditioned upon the subsequent issu-
ance of the passport, it is eminently proper that the efficacy of the
certificate should be narrowly restricted. It is therefore deemed
advisable that the certificate issued to such parties should be ex-
§ 531.] LOCAL PAPERS. lOlB
pressed to be good only for the particular journey, and not longer
than one year.''
Mr. Blaine, Sec. of State, to Mr. Denby, niiii. to China, No. 523, May 0,
1800, For. Rel. 185)0, 182.
With this instrnction tliere is i)rinte(l a circular of tlie Department of
State to consuls in China, of Mny 1, 181)0, in relation to tlie issuance
of travel certificates. The form cf the certificate is ainiexed to the
circular.
See, also. Consular Regulations of t.he United States, 189(;. § 1(>7. and
fonns 181 and 182.
The issuance of the travel certificate has been held to be an oflicial service,
for which no fee is to be charged, except under regulation of the
Department of State. (Mr. Hay, Sec. of State, to Mr. Conger, min.
to China, No. 188, June 24, 1890, MS, Inst. China, YI. 1.)
In 1893. and 1894 Mr. Denby, then Ainerican minister at Peking,
conducted,' as dean of the diplomatic corps, a corres})ondence with
the Tsung-li-Yamen, concerning its request that the foreign represent-
atives devise a plan whereby foreigners traveling in China should be
required to report in person to the magistrates through whose juris-
diction they might pass. In a note to the Tsung-li-Yamen, Mr. Denby
stated that it would be impracticable for all foreigners when travel-
ing in China to make such a report in person, and tliat the penalty
suggested, that of a failure of protection, was by no moans admissible,
A more serious objection, however, and one which was considered
insuperable, was that the proposed change would materially impair
the rights of the powers under Art. IX. of the British treaty of 1858.
By that article, the passports issued thereunder, " if demanded, must
be produced for examination in the localities passed through. If
the passport be not irregular, the bearer will be allowed to proceed."
Article XVIII. of the same treaty provides that the Chinese author-
ities '' shall, at all times, afford the fullest protection to the persons
and property of British subjects." As the request of the Chinese
Government would involve a change in these treaties, the foreign rep-
resentatives were without power to comply with the Government's
request.
The Tsung-li-Yamen, in reply, maintained that, its jiroposal was
clearly in conforuiity with the provision that passports, if deuianded,
must be produced for examination, and that, if the passport was not
irregular, tlie bearer would be allowed to proceed. The examination
of passports as provided by the treaty was, said the YamcMi, " the
same as reporting in person to the authorities."
From this position the diplomatic corps dissented, their conten-
tion being that by the treaties passports need only be shown when an
4Jxamination of them was properly demanded, while under tlie Chi-
1014 PASSPORTS. [§ 531.
iiese construction travelers Avould Ix^ compelled to seek out the local
authorities in every city and report to them. The Yamen alleged that
foreigners had sometimes secretly withheld their passports when
requested to show them, and that they had also recklessly gone into
the interior without passports. The diplomatic corps replied that
such conduct was disapproved by the foreign representatives; and
suggested that if the prince and ministers should adopt some regula-
tion in regard to the exhibition of passports to the principal authori-
ties, on demand, in district or jjrefectural cities, the foreign repre-
sentatives would consider it carefully, and, if it was approved, would
make it known to travelers through the consuls and enjoin com-
pliance with it.
For. Kel. 1893, 241, 244 ; For. Rel. 1894, 152-160.
The discussion was renewed in 1897. Mr. Denby, in a note to the Tsung-
li Yamen, July 12, 1897, again maintaining the rights of the jMJwers
under the British treaty of 1858, said :
" The passports should state the names of the provinces in which the
bearer thereof proijoses to travel. It is impracticable to state the
route that he will follow. . . .
"Different systems prevail in the various countries as to issuing pass-
ports. Under our system the passports are issued by the minister
only. They are sent to you and are countersigned by the governor
of the city of Peking. . . . Article 9, above cited, states that
'passports will be issued by their consuls [meaning British consuls]
and countersigned by the local authorities.' As our consuls do not
issue passports, this phrase has no application to us." (For. Rel.
1897, 104.)
The position maintained by the diplomatic corps in 1893-1894 is reaf-
firmed in Mr. Hay, Sec. of State, to Mr. Conger, min. to China, No.
260, May 8, 1900, MS. Inst. China, VI. 72.
Transit passes, for the protection from likin taxes of goods pur-
chased in the interior of China by foreigners, are issued by the
superintendent of the Imperial Maritime Customs at the port of
exportation to merchants who apply for them through their respec-
tive consulates and give the prescril^ed bond. The goods, on arriving
at the port of exportation, are examined by the customs officials and
one-half of the export duties are paid b}^ the shipper, after which
the goods are ready for exportation, which must take place within six
months. If not exported within that time, the merchant must pay
the customs a sum equivalent to two and one-half times the export
duty, after which he is released "from the obligation to export. This
is the procedure at Canton, and it is understood to be similar at
other Chinese ports. No consular fee is charged for obtaining the
pass, or for authenticating the export bond. In applying for a pass,
the consul must be satisfied that the merchandise is actually the j^rop-
erty of the American citizen in whose name the pass is to be issued.
§ 532.] War regulations. 1015
No special form of power of attorney is required to enable the agent
in China of an American citizen to piociire a pass.
Mr. Cridler, Tliird Assist. Set-, of State, to the Seeger & Guernsey Co.,
May 2r>, 1900, 245 MS. Dom. Let. 287.
See as to practice at otlier times and places, Mr. Denby, niin. to China,
to Mr. Bhiine, Sec. of State. No. 1114, May 10. 1800. For. Rel. 1890,
184. The Chinese authorities were then endeavoring to restrict the
time during which a transit pass remained in force, in consequence
of the presentation of a pass issued 12 years before at Tientsin,
which, as it turned out. liad not ))een included among the ports where
the life of a pass was limited. A note of the Tsung-11 Yamen, of
May 10. 1890, printed with ^Ir. Denby's dispatch, states the periods
of limitation established at various ports.
Much fraud has been practiced in the use of such passes. (Mr. Adee,
Second Assist. Sec. of State, to Mr. Smith. Xo. 1.*?. April 20, 1899, 107
MS. Inst. Consuls, 1.)
The habit " of obtaining transit passes by American citizen.s for Chinese
principals, to secure for them advantages to which they are not
entitled by the laws of their own country, is such an abuse of the
privilege as not only to justify the Chinese autliorities in refusing to
recognize such passes when irregularly issued or obtained, but also
in declining to grant additional ones to those found guilty of such
practices." (Mr. Frelinghuysen, Sec. of State, to Mr. Young, min.
to China, Aug. 8, 1884. MS. Tnst. China. III. 03.)
XII. WAR REGrLATIOXf^.
1. American Civil War.
§ 532.
By a regulation of the Department of State of Aug. 19, 1861, " no
person was allowed to go abroad from a port of the United States
without a passport either from this Department or countersigned by
the Secretary of State, nor any person allowed to land in the United
States without a passport from a minister or consul of the United
States, or, if a foreigner, from his own Government, countersigned
by such minister or consul." " In order to facilitate the execution of
this regulation, Oscar Irving and Jonathan Amory, respectively dis-
patch agents at New York and Boston, were also appointed. Aug. 22,
18C)1, agents for the issuance of passports, and were provided with
forms, signed in blank. '^ Sept. 12, ISGl, E. L. O. Adams was ap-
pointed confidential agent of thtv Department of State at Portland,
Me., with authority to issue passports. He was instructed, however,
that the chief object of his appointment was to prevent persons in
the insurgent service from going to and from Canada. Any such
persons, if he knew them, or if he received a report of them from the
Department of State, by letter or telegram, he was to cause to be
"Circular to Consuls. March 17, 1S02, MS. Circulars. I. 194.
b'A MS. Dom. Let. .".10.
1016 PASSPORTS. • [§ 632.
arrested and sent to Fort Lafayette, New York." Applications for
passports, from notaries and other persons, made to the Department of
State, continued to receive the attention of. the Department as before.''
The passport agents were instructed to issue passports only on the
applications of the persons desiring them : '' and to issue them gratis.''
Passports were not required, however, in the case of persons going to
the British provinces; '^ but all passengers for foreign ])()rts, excei)t
Irish and Germans of the poorer classes, were required to obtain them
before leaving the country. '^
Till the act of March 3, 1863, by which permits to leave the country
were authorized to be given to aliens who had by the conditions of
their sojourn become subject to militar}^ duty, passports were issued
by the Department of State and its agents only to citizens of the
United States. Aliens were required to obtain passports from their
own governments or their agents. Holders of foreign passports
desiring to leave the country were required to send them to the
Department of State to be countersigned ; but persons who had
declared their intention to become citizens of the United States, if
they were ilnable to obtain passports from the ministers or consuls
of their native country, were allowed to embark without molestation,
unless the chief of police at the place of embarcation should in a
particular case object.^ In the case of Bavarians, notarial certificates,
countersigned by their consul, Avho had no authority to issue pass-
ports, were recognized ; and instructions were given to make a like
exception in any similar case.'' Nov. 25, 1801, notice was given of the
discontinuance of the practice of requiring foreign passports toi be
countersigned, or viseed at the Department of State, and the duty was
delegated to the passport agents.* The American consul-general at
"Mr. Seward, Sec. of State, to Mr. Adams, Sept. 12, 18G1, .55 MS. Dom. Let. 8.'>.
b Mv. F. W. Seward, Assist. Sec. of State, to Mr. Van Nostrand, Sept. 7, 1801,
5") MS. Dom. Let. 45.
cMr. F. W. Seward, Assist. See. of State, to Mr. Nones, Oct. 9, 18(il, 55 MS.
Dom. Let. -229.
•JMr. F. W. Seward. Assist. Sec. of State, to Mr. Irving. .\us. 20, 1801, 54 MS.
Dom. Let. 562; to Mr. Nones, Oct. 0, 1801. 55 id. 229; Mr. Seward. See. of State,
to Mr. Amory. Nov. 25, 1801. 55 id. 490.
''Mr. F. W. Seward. Assist. Sec. of State, to Mr. Van Nostrand, Sept. 7, 1S(]1,
55 MS. Dom. Let. 45.
/ Mr. Seward. Sec. of State, to >tr. Amory. Oct. 21. 1801. .55 MS. Dom. Let. 284;
to Mr. Prescott, Nov. 2, 1801. id. 419; to Sec: of Treas., Dec. 2, 1801, id. .534.
.-^Mr. F. W. Seward, Assist. Sec. of State, to Mr. Sprnnj,'lv. .\njr. 22, 1801, 54
MS. Dom. Let. .515; to Mr. Uol)l)ins, Aug. 29, 1801. id. 50.3; to Mr. Irving, .\ug.
29, 1801, id. 5()2; to Mr. Graham. Aug. 31, 18()1. id. 58.3.
'' Mr. F. W. Seward, Assist. Sec. of State, to Mr. Kennedy, diief of jtolice at
New York, Jan. 17, 1802, .50 MS. Dom. Let. 214.
i Mi-. Seward, Sec. of State, to ^Ir. Amory, Mr. Irving, and Mr. Adams, Nov.
25, 1801, 55 MS Dom. Let. 490, 491, 493.
§ 5S2.] WAS REGULATIONS. 10l7
Montreal was authorized to vise the passports of British subjects
leaving Canada for the United States," and in January, 1802, measures
were adopted in Canada to restrict the issuance of certificates of Brit-
ish nationality, having the force of passports, to the governor-general
and his authorized agents, thus taking the power from mayors of
towns, who had previously assumed in some instances to exercise it.''
The agents of the United States were enjoined to take special care
against the illegal transfer of foreign passports from one person to
another/ Collectors of customs were desired to aid in the enforce-
ment of the passport regulations.**
A regulation required the " loyalty of all Americans applying for
passports or vises to be tested imder oath." The enforcement of
this regulation was specially enjoined ; '^ but, on March 17, 18G2, it
was rescinded.^
Dec. 2, 1861, it was ordered that passports should no longer be
required of passengers proceeding from New York by steamer to
California, Oregon, or Washington, via the Isthmus." The general
strictness, however, with which the rules were sought to be enforced
may be inferred from the fact that special instructions were given to
allow Col. Rowan, a British officer, who had been accustomed to visit
British mail steamers, in the service of his government, to continue to
exercise that function.''
The passport agencies at New York, Boston, and Portland were
discontinued Feb. 24, 1802, and the function of issuing passports to
American citizens was exclusively resumed by the Department of
State.*
«Mr. F. W. Seward, Assist. Sec. of State, to Mr. Adams, Nov. 27, 1801, "..5
MS. Dom. Let. 507. The consul-general was not allowed to charge for the
service. (Mr. F. W. Seward, Assist. Sec. of State, to Mr. Aniory, Feb. 0, 1802,
50 MS. Doui. Let. .SOO.)
6 Mr. F. W. Seward, Assist. Sec. of State, to Mr. Adams, and to Mr. Amory.
Jan. 28, 1802, 5(5 MS. Dom. I>et. 2.")4.
p Mr. F. W. Seward, Assist. Sec. of State, to Mr. Adams, and to Mr. Amory,
and Mr. Irviii«. Dec. 14, 18(>1. r,(\ MS. Dom. Let. 44, 45, 40.
''Mr. Seward. Sec. of State, to Sec. of Treas.. Dec. 12. 18(51, 50 MS. Dom.
Let. 28.
e- Mr. F. W. Seward, Assist. Sec. of State, to Mr. Irving, Jan. ."i, 1802, 50 MS.
Dom. Let.- 150. In the case of Mr. W. II. Richardson instructions were given,
on receiving " satisfactory assurances of his loyalty." to issue a passport without
requiring him to tal<e the usual oath of .-illegiance. (Mr. F. W. Seward, Assist.
Sec. of State, to Mr. Amory, Fel). S, 18(>2, 50 MS. Dom. Let. .'^22.)
/Circular to consuls. No. !>. :\Iarch 17. 1S02. MS. Circulars. 1. 104.
17 Mr. F. W. Seward. Assist. Sec. of State, to Mr. Kennedy, chief of |K)lice of
New York, Dec. 2. 1801, 55 MS. Dom. Let. 5:54.
hyU: Hunter, cliief clerk, to Mr. Kennedy, Dec. 0, 1801, 5(5 MS. Dom. Let. 1.
i Mr. Seward. Sec. of State, to Mr. Irving, to Mr. Amory. and to Mr. .Vdams.
Feb. 21. 18(52, .50 MS. Dom. Let. :W2. 30.*i. .S04 ; also. Mr. F. W. Sinvard. Assist.
Sec. of State, to Mr. Amory and Mr. Irving. Feb. 27, ]8()2. id. 415. 41(5.
1018 PASSPORTS. [§532.
Feb. 27, 18C2, the agents of the Department of State, at New York
and Boston, were instructed that the order requiring passports of all
persons departing from or arriving in the United States was re-
scinded, as well as the rule requiring the countersignature, or vise,
of foreign passports."
Similar instructions were given to the agent at Portland, March 12,
1862.6
" Until further notice, however, arrests will be made under the
direction of the Secretary of War of any persons who maj'^ reasonably
be suspected of treason against the United States." *"
March 17, 1862, a circular notice was sent out that the regulation
of Aug. 19, 1861, was rescinded.''
August 8, 1862, the diplomatic and consular officers of the United
States were instructed till further notice not to issue passports to
any citizens of the United States, between the ages of 18 and 45 years,
and otherwise liable to perform military duty, whom they should
have reason to believe to have left the United States after that date.*
Persons going abroad, who were liable to a draft, Avere required,
in accordance with the regulations of the War Department, to give
bonds, conditioned for the performance of military duty, in case
they should be drafted, or the providing of a substitute.^
Sept. 27, 1862, it was stated that, under a " recent regulation," a
passport could include only the applicant, his wife, and minor
children.fi'
Under the act of March .3, 1863, authorizing the issuance of permits
to quit the country to aliens who had become subject to military duty,
a passport for such a person was on a certain occasion sent to Mr.
Irving, the dispatch agent at New York, with instructions to hand it
over on receiving from the applicant an affidavit that he was " an
a Mr. F. W. Seward, Assist. Sec. of State, to Mr. Irving, and to Mr. Amory,
Feb. 27, 18«J2, 50 MS. Doni. Let. 415.
6 Mr. F. W. Seward, Assist. Sec. of State, to Mr. Adams, Marcli 12, 1862, 50
MS. Dom. Let 48G.
c Mr. Seward, Sec. of State, to Lord Lyons. Brit. Min., March 7, 1802, MS.
Notes to Gr. Br. IX. 131.
d Circular No. 9, to IJ. S. consuls, March 17, 1801, MS. Circulars, I. 194.
See, also, Mr. Seward, Sec. of State, to Mr. Harvey, niin. to Portugal. No. 43,
March 20, 1862, MS. Inst. Portugal, XIV. 239.
eMr. Seward, Sec. of State. Circular No. 18, Aug. 8, 1802, MS. Circulars, I. 204.
^Mr. Seward, Sec. of State, to Mr. Fessenden, Sept. 27. 1802, 58 MS. Dom.
Let. 271; Mr. Hunter, chief clerk, to Mr. Butler, Sept. 10, 1802, id. 219.
" Bonds are not now required from citizens ... in those States which
have furnished their complement of militia for nine months." (Mr. F. W.
Seward, Assist. Sec. of State, to Mr. Weiss, March 23, 18a3, (K) MS. Dom. Let. 70;
to Mr. Hale, March 24, 1803, id. 79. )
i/Mr. Seward, Sec. of State, to Mr. Fessenden, Sept. 27, 18(!2, 58 MS. Dom.
Let 271.
§532.] WAR REGULATIONS. 1019
able-bodied person liable to military duty ; that he is between the ages
of 20 and 45 years, of foreign birth, and has declared his intention
to become a citizen of the United States, according to law, and has
not been convicted of felony," besides a bond conditioned for the
performance of military duty.
Mr. F. W. Seward, Act. Sec. of State, to- Mr. Irving, Aug. 18, 1863, 61
MS. Dom. Let. 412.
On the ground that persons aiding the rebellion or engaged in the
slave trade had embarked at foreign ports for ports in the loyal
States, and on arriving at such ports had engaged in unlawful prac-
tices, seizing unarmed merchant vessels, carrying on forbidden trade,
and furnishing information, arms, munitions and other aid and com-
fort to the insurgents, the diplomatic and consular officers of the
United States were instructed. May 25, 1864, that thereafter all
persons, both citizens and foreigners, embarking for the United
States, except emigrants, must provide themselves with passports,
and, if arriving without them, would be liable to examination as to
their character and purposes. This regulation did not apply to
" loyal citizens who reside within loyal States, and who pass through
foreign countries or provinces, not having come from any port beyond
the seas."
Mr. Seward. Sec. of State, to Dip. & Consular Officers, circular. May 25,
1864, MS. Circulars. I. 270.
Mr. Seward, as Secretary of State, issued, Dec. 17, 1864, the follow-
ing circular order:
" The President directs that, except immigrant passengers directly
entering an American port by sea, henceforth no traveler shall be
allowed to enter the United States from a foreign country without a
passport. If a citizen, the passport must be from this Department or
from some United States minister or consul abroad; and, if an alien,
from the competent authority of his own country, the passport to be
countersigned by a diplomatic agent or consul of the United States.
" This regulation is intended to apply especially to persons pro-
posing to come to the United States from the neighboring British
provinces. Its observance will be strictly enforced by all officers,
civil, military, and naval, in the service of the United States, and the
State and municipal authorities are requested to aid in its execution.
It is expected, however, that no immigrant passenger, coming in man-
ner aforesaid, will be obstructed, or any other persons who may set
out on their way hither before intelligence of this regulation could
reasonably be expected to reach the country from which they may
have started."
Circular No. 55, ^KS. Circulars, L 281.
1020 PASSPORTS. [§532.
The circular was accompanied with the following rules:
"I. Passports for Canada and tlie adjoiniii;^ r.ritisli provinces are issued
for one year, and need not be surrendered within that period.
"II. Citizens of the United States, desirous of visiting Canada, may talie
out their passports either from United States consulates or from this
Dei)artnient.
" III. United States consular agents are authorized to Issue passports, and
may countersign those of foreigners.
" IV. Travelers making transit through Canada, from one American port
to another Americau port, must procure passports.
" V. Persons residing near the line who desire to cross and recross dally
in pursuit of their usual avocations are ' travelers ' in the contempla-
tion of the order, and nuist provide themselves with passports.
" VI. Females and minor children traveling aUme are included in the
order. When, however, husband, wife, and minor children travel
together, a single passport for the whole will suffice. For any other
person in the party a separate passport will be required.
"VII. Should any person, native or foreign, clandestinely enter the United
States in derogation of the order, the fact should l>e rejwrted to the
military authorities of the district."
In connection with these rules, see Mr. Seward, Sec. of State, to Mr.
Fessenden, Sec. of Treas., Dec. 2i). 18(>4. (>7 MS. Dom. Let. 425 : F. W.
Seward. Assist. Sec. of State, to Mr. Spalding, Dec. 27, 18()4. id. 401 ;
same to Messrs. Snow & Co., Jan. 12, 18G5, id. 529.
" For your information I send herewith a copy of the new tariff of
consular fees. The consular officers in Canada are instructed and
are believed to nialvc the same charge for passports that are made
by Mr. Jackson at Halifax." (Mr. F. W. Seward, Assist. Sec. of
State, to Messrs. Snow & Co., Jan. 12, 1805. 07 MS. Dom. Let. 520.)
"The order in question [of Dec. 17, 18041 is designed to ajiply only to
travelei-s ; and jiersons on their way to and from church, and their
respective post-offices, and in attendance on the sick, are not consid-
ered ... to be 'travelers.'" (Mr. F. W. Seward, Assist. Sec. of
State, to Mr. Gillis, Jan. 25, 1805, 08 MS. Dom. Let. 12.)
The Department of State declined to grant a request of certain firms at
Champlain. X. Y.. that the United States officials be instructed " to
allow known and worthy inhabitants residing within the precincts
of the British North American i>rf)vinces. and near the boundary of
the United States, to i)ass and repass the borders for the j)urpose
of business transactions " with such firms, without complying with
the terms of the order. (Mr. F. "\V. Seward, Assist. Sec. of State, to
Messrs. Whiteside et al., Jan. 2.5, 180.5, 08 MS. Dom. Let. 18.)
See, also, Mr. Seward, Sec. of State, to Sec. of War. Jan. 27, 18(55, sug-
gesting that persons in New York who violated the order be com-
mitted to .military custody to be tried by court-martial. (08 MS.
Dom. Let. 41.)
" Mr. Mason may be informed that no passjwrt is needed to cross the
border into Canada; passports are only required to enter the T'nited
States." (Mr. Seward, Sec. of State, to Sec. of Treas., March 1, 1805,
08 MS. Dom. Let. 314.)
Mr. Seward, as Secretary of State, issued to consular officers,
March 15, 1805, the follo^vin^ order:
"United States considar officers residin<r abroad, with the excel)-
§ 533.] WAR REGULATIONS, 1021
tion of those resident in Canada, are required to inform all captains
of American vessels, on delivery of their papers, that, in order to
prevent the occasion of embarrassment on their arrival in this conn-
try, it is necessary that each and every passenger, other than emi-
grants, and the wife and minor children of any gentleman, accom-
panied by said gentleman, should be protected by a passport duly
issued or countersigned, should such passenger be a citizen of this
country, by a diplomatic agent or consul of the United States; but
otherwise to be issued by the proper authority of the country of
Avhich they are citizens, and countersigned by a United States diplo-
matic agent or consular officer.
" Instructions have been issued to the collectors of the several ports
of entry in the United States, advising them that in all cases where
passengers arrive at any port in the United States without a proper
passj^ort, such passengers shall not be permitted to land, nor any
permit be given for the landing of their baggage, until notice shall
have been duly given to the United States military authorities within
the district, who will dispose of such passengers and baggage under
instructions from the AVar Department."
Circular No. oG. March in, 18(55, :MS. Circulars, I. 282.
In reply to a recpiest made by a gentleman at the University of
Virginia for a i)assport for himself and his family, Mr. Seward, in en-
closing a copy of the passport regulations, said: ''As it is presumed
that you have been a colonel in the service of the insurgents, ])ursuant
to a recent order of the President, any passport which may be issued
to you will contain the condition that you do not return to the United
States without the I^resident's permission. If you are a paroled
prisoner, no fee will be required for the passport."
Mr. Seward, Sec. of State, to Mr. Maury, Sept. 5, 18()5, 70 MS. Doui.
Let., 307.
2. OriiKK Cases.
§ 533.
" Lord HaAvkesbury presents his compliments to Mr. Gore, and has
the honor to inform him that it will be requisite for such citizens of
the United States of America as may be desirous of j)ro('eeding from
this country to France to apply for passports at the alien office,
which passports will be granted gratis on their producing one from
Mr. (irore."
Lord Ilawkesbury. for. sec., to Mr. (Jore, Am. coiuinissiouer, circular,
Downinj; Strtvt. Friday, June 10, 18u;{, Tapers relative to the Coni-
inissioiiers under the 7th article of the Treaty with England, 175)4,
III.. MSS. I)ei)t. of State.
Early in December, 11)01, the British War Office gav<' notice that,
" in consequence of the establishment of martial law in all South
1022 PASSPORTS. [§533.
African ports," no person would, except under special circumstances,
be allowed, on and after Jan. 1, 1902, to land in that country without
a permit. This permit, in the case of persons proceeding from ports
in the United Kingdom, was to be obtained from the Permit OiRce,
39 Victoria Street, S. W., London; and each applicant was required
to produce a certificate, signed by the agent general for the Cape
Colony or Natal, a Member of Parliament, Justice of the Peace,
Banker, Parish Priest or Minister, or Officer of H. M. forces, that he
possessed at least £100 or was in a position to maintain himself on ar-
rival in South Africa; but subjects of foreign powers were allowed to
produce satisfactory evidence to the same effect from their respective
embassies or legations in London. Persons proceeding from British
colonial ports Avere required to obtain like permits from the Colonial
Secretary, or from some officer appointed by the Colonial Government ;
while persons sailing from a foreign port were to obtain them from
the British consular officer there. In the case of a family a separate
permit was required from each son or daughter over 16 years of age.
The foregoing permits, it was expressly stated, were " available only to
enable passengers to land in South Africa, and are no guarantee that
they will be allowed to proceed inland." Permits to proceed inland
were to be applied for at the port of disembarcation; and warning
was given that there were " still thousands of persons waiting at
the coast ports for an opportunity to return to their homes," who
would " probably have precedence over later arrivals."
The London Times, weekly ed., Dec. 0, 1901, p. 778, column 4; U. S.
Consular Reports, LXVIII. (Feb. 1902) 149.
" Your despatch No. 177, of the 12th ultimo, has been received. It
relates to passports for United States citizens in Guatemala, which,
it appears, even when issued at the legation, are required to be coun-
tersigned at the foreign office. This, no doubt, for the reasons which
you assign, is an inconvenient regulation for the holders, and ab-
stractly may scarcely be warrantable in time of peace. It seems,
however, that that condition had not technically been reached at
Guatemala, for even the minister for foreign affairs, in his note to
you of the 10th ultimo, speaks of a decree ready for the press, raising
the state of siege, or, in other words, abolishing martial law. If cir-
cumstances had required that state to continue, its usual incidents,
including the countersigning of passports, may scarcely be regarded
as unreasonable. If, however, the regulation should in your judg-
ment be unnecessarily continued or vexatiously required, you will
temperately protest against it as unpalatable to your Government."
Mr. Fish, See. of State, to Mr. Williamson, No. 97, July 24, 1874, MS. Inst
Costa Rica, XVII. 190.
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