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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, min. to Switzerland, Oct. 7,
1887, For. Rel. 1887, 1072.
A passport having been issued to a person, as a naturalized citizen, in the name of Stephen Emil Heidenheimer, he subsequently admitted his identity with “ Edward Heidenheimer," who, as appeared by the passenger list of the steamer lustralasian, 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. Whatever 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 Department 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 was 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 passport or other certificate as such, and that his passport should be cancelled.
Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Dec. 8, 1888,
For. Rel. 1888, I. 505).
you to Mr. Ileidenheimer, and you will return hither the passport
A. L. obtained from the superior court of the city of New York a certificate of naturalization October 24, 1888, and, securing a passport from the Department of State, went to Palestine. By the record of the naturalization proceedings, it seemed that he had represented himself as a native of Russia and as having resided in the United States in 1880; and from his passport application it was inferred that, in order to bring himself within R. S., $ 2167, and thus avoid the production of a previous declaration of intention, he had represented himself, when he was naturalized, as having come to the United States while a minor. In 1890 A. L., who was then residing in Palestine, invoked the protection of the United States consul at Jerusalem in respect of a complaint against the cavass of the British consulate. The consul reported that A. L. was, in fact, a native of Palestine; that he was five years older than was stated in his passport application; that he was a protégé of the British consulate down to August, 1884; that he was, to the consul's knowledge, residing in Palestine in 1886, 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 jurisdiction where he committed the illegal acts which the evidence discloses, 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. Ilirsch, min. 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 aprile
rently after a two years' residence, and who, after his return to Italy, invoked the protection of the American legation, Mr. Blaine said:
There is no doubt that his naturalization was procured by fraud, and that the passport he holds was improvidently issued. It should, if possible, be surrendered and cancelled; but, if that can not be done, you will refuse any further intervention in P-'s behalf.” In saying that the passport was improvidently issued,” Mr. Blaine referred to the circumstance that P. stated in his passport application that he emigrated in August, 1868, and was naturalized in 1870. (Mr. Blaine, Sec. of State, to Mr. Porter, min. to Italy, No. 123, April 1,
1891, MS. Inst. Italy, II. 510.) It being stated in a passport application that the applicant arrived in
the United States Dec. 18, 1880, and it appearing that his naturalization was granted April 1, 1887, the Department of State refused to issue a passport. (Mr. Wharton, Act. Sec. of State, to Mr. Schultz, Jan. 8, 1892, 181 MS. Dom. Let. 615.)
M., a native of Germany, arrived in the United States in May, 1871. Ile was naturalized by the court of common pleas, in Philadelphia, in October, 1876, under sec. 2167, R. 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 papers (in this instance a passport application and certificate of naturalization] that naturalization was obtained by fraud."
Mr. Olney, Sec. of State, to clerk of common 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 equally not binding upon the German Government under the naturalization treaty."
Mr. Day, Assist. Sec. of State, to Mr. Stewart, Nov. 11, 1897, 222 MS.
Dom. Let. 359.
Where the validity of naturalization is in doubt, the presumpPresumption in tion is “ in favor of the rights and privileges of the doubtful cases.
Inst. Germany, XVI. 133.
7, 1896, MS. Notes to Aust. Leg. IX. 273.
“ Under ordinary circumstances, where a prima facie record of citizenship, both of the father and the son, appears in the archives of the legation, untra versed 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 inconvenient 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. 13, 1883, MS. Inst
Hayti, II. 353.
(3) AUTHORITY TO MAKE DECISION.
The question of the validity of naturalization in the 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, Feb. 13, 1872, For.
Rel. 1872, 387.
An American decree of naturalization “is not open to impeachment 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, Feb. 15, 1888,
For. Rel. 1888, I. 510.
“ This Department has, therefore, acting upon well-settled principles 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 country, to which he has an indisputable right to appeal for protection. You have very properly invited Count Kalnoky's consideration of the anomaly of seizing the identification papers of a citizen of a friendly power, and holding him to prove his foreign citizenship, which it has been made 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. Frequent 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 out 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 claim for its intervention 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, Sec. of State, to Mr. Grant, min. to Austria-Hungary, May
8, 1893, For. Rel. 1893, 13, in relation to the case of Charles Mercy, alias Saul Moerser, a naturalized citizen of the United States, of Galician birth, who was arrested at Krakau 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 naturalization, 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.
May 8, 1893, the imperial-royal minister of foreign affairs wrote to the
minister of the United States : “ The flight of the aforesaid individual fully proves the suspicion
that Saul Moerser was entertaining dishonest thoughts when he impatiently clamored for his documents of identity which were in the safe-keeping of the court, and that the authorities at Krakau were perfectly justified in refusing to hand these documents over to Saul Moerser, because they knew
his true character." In an instruction of June 1, 1893, Mr. Gresham said: “In withholding
the evidence of the citizenship of Mr. Moerser, it may be observed that there is an essential distinction between withholding the papers from the individual and withholding them from the legation. By the latter course the legation is deprived of all opportunity to ascertain whether the party is in fact a citizen of the 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, 14-15.) 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 five years uninterruptedly, as required by the treaty between the United States and Austria-Hungary, the Austrian Government asked that his certificate of naturalization should be cancelled; 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. Rel. 1894,
36-38.) The minister of the United States at Vienna, who had made this sug
gestion, was instructed to inform the minister of foreign affairs that the Department of State had no powers by any steps 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 Department would withdraw the passport which had been issued in reliance upon it.
(For. Rel. 1894, 46, 47.)
The treaty of naturalization between the United States and Austria-Hungary of Sept. 20, 1870, “ being a contract between equal 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 within the sole competence of the respective parties and each is competent to certify the fact under its own laws. By the laws of the United States a five years' uninterrupted 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 discharged soldiers, which latter may be naturalized on proving at least one year's residence.
“While in these exceptional cases the Austro-Hungarian Government may rightly require the facts, there is nothing in the treaty