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lives. In humanity's name help us; wire commander.” By yet another correspondent Mr. Bayard was adjured, as Secretary of State, " to take counsel of Thomas F. Bayard.” June 10, 1887, Mr. Bayard cabled to Mr. McLane, then American minister at Paris: " Use your personal good offices to ascertain the cause of Baron Seillière's detention and to obtain his release if possible.” June 24, Mr. Bayard wrote to Mr. McLane: “It is represented to me that you are fully conversant with the facts of the case, and that you only await the instructionsof the Department to make formal official demand upon the French Government for Baron Seillière'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 Seillière's counsel, as to whether his declared intention of becoming a naturalized citizen of the United States deprived him of his French citizenship, and Mr. Flourens did not conceal from me his decided opinion adverse to such a construction of international law. He said that the French code, in contemplating the loss of French citizenship, assumed that a new citizenship had been acquired, and I am very sure that had I been instructed to demand Seillière'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 circumstances of a case involving the police and health laws of this country.” Mr. McLane, July 6, wrote further: “I never gave any occasion for the friends of Seillière 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 advised, 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 19, 1887.

For. Rel. 1887, 303, 304, 305, 306, 308, 309, 310, 312, 313, 343, 349, 355.

Subsequently an application was made to Mr. Bayard for a certificate that the baron had made a declaration of intention; that he had permanently taken up his residence in the United States and was “ domiciled” in New York; and that he had by such acts “ secured the domiciliary rights and protection of the American citizen under the laws of the United States Government as to person and property, and is entitled to recover under the laws of the United States and under international law such personal and real estate as is justly and legally belonging to him in the Republic of France.” In support of this application, the Thrasher and Koszta cases were again cited, thus: “See quotations from communications of Mr. Webster, Secretary of State, and Mr. Marcy, Secretary of State; and decisions of U. S. Supreme Court, as cited in Mr. Webster's communication, 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 reply to your request that the Department give a certificate of domicil to Baron Seillière 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 Seillière 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 ó no such power of certification is vested by law in this Department.'

“ 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 citizenship 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 conclusive.

“ The question of domicil is a matter of inference from circumstances 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 promulgation of a judgment, which is not an executive function.

“ The practice of the Department is invariable and correct in principle; it is also impartial, and applies equally to those who are and those who are not citizens of the United States. The rights of domicil and of nationality are not identical, and are often entirely distinct 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 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 Department 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 way which it properly could.”

Mr. Uhl, Act. Sec. of State, to Mr. Tucker, Jan. 9, 1895, 200 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 habeas 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 intervention 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. Justice Harlan, delivering the opinion of the court, said:

“ He [Lem Moon Sing] is none the less an alien because of his having 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 property 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, and 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, demand that his claim to reenter this country by virtue of some statute or treaty, shall be determined ultimately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of Congress with the duty of executing the will of the political department of the Government in respect of a matter wholly political in its character. He left the 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, 547–548.
The term “ commercial domicil," 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, 63, merely as descriptive of the domicil of choice of the petitioner, who was a merchant. In both cases a domicil in the usual sense was alleged, and the admitted facts fully sustained the allegation. This circumstance seems to have been overlooked 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, 119 U. S. 698, 724.

CHAPTER XII.

PASSPORTS.

I. NATURE 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, 8 496.
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, $ 506.
5. Evidence of previous passport, $ 507.
6. 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) Persons born 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, 8 524. VII. INTERNATIONAL EFFECT.

1. Evidential force, & 525.
2. Visé, & 526.
3. False use, 8 527.

855

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