Page images

“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 be construed as per se a denial by this Department or its agents of the American citizenship of a person whose application is so rejected."

Mr. Hay, Sec. of State, to dip. & cons. officers, circular, March 27,

-1899, For. Rel. 1902, 1.

Secs. 4075 and 4076, 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. 29, 1901, 23 Op. 509, citing the opinion of Hoar,

At.-Gen., June 12, 1869, 13 Op. 89, 92, and distinguishing the 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 Governments 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 inccnsistent to issue passports to persons who are undoubtedly 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 1075 of the Revised Statutes. Inasmuch as polygamy is a statutory crime, proselytism with intent that the emigrants should live here in open violation of our laws would seem to be sufficient warrant for refusing a passport. But it would be well to have the fact of the applicant 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 applicant's name. It would be as well to obtain in all such cases of refusal of passport application, a detailed statement from the applicant, duly signed and sworn to, in support of his application, a copy of which can then be forwarded 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 effect, Mr. Bayard, Sec. of State, to Mr. Winchester,

min. to Switz., No. 52, June 9, 1886, For. Rel. 1886, 847.
In a later instruction to Mr. Winchester, No. 59, July 20, 1886, 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. 1886, 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 practice of polygamy, the position of the Government
of the United States toward the Mormons is now changed. See
infra, g 556. 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 protection given to a citizen 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 [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 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 the obligation of his government."

Mr. Bayard, Sec. of State, to Mr. Hanna, min. to Arg. Rep., No. 22.

June 25, 1886, 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 passports 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 passports in order to remain in Port Arthur, Mr. Fowler sought instructions from the United States legation at Pekin. The legation replied that while, “as a general rule, it would 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.

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 regulation; 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 Mormons, 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 immigrating 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 under 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, July 3, 1899;

Mr. Adee, Act. Sec. of State, to Mr. Conger, min. to China, Aug. 24,

1899: For. Rel. 1899, 185, 186. See, contra, Mr. Cridler, Third Assist. Sec. of State, to Mr. Fowler,

No. 100, Feb. 12, 1900, withdrawn by Department's No. 112, July 9, 1900, as stated in Mr. Ilay, Sec. 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 conviction of crime was 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, chargé, March 29, 1888, For. Rel.

1888, I. 420. It may be 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 granting of passports is, as has been seen, expressly made, by the statutes, a matter of discretion. It is to be observed that in Putnam's case the legation, although instructed as above, was not directed to issue a passport, but was directed to inquire whether the applicant had not by continuous foreign residence lost his claim to a passport,


$ 513.

Dr. Alberto Lacayo, 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 business 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, being uable 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 was his purpose after their death to go to the United States and reside there permapently. 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 constitution 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 publie official, takes that oathi; that when the office of prefect of department 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 cannot 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,

189:, For. Rel. 1893, 18.7. See, also, id. 180, 183, 184.

" i have to acknowledge the receipt of your despatch No. 633, of the 21st ultimo, relative to the application of Baron Seillière for a passport, and to inform you in reply that Marie Nicolas Raymond Seililère received passport No. 33952, November 25, 1891; that he was born in France, naturalized as an American citizen before the common 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. Seillière'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

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. Seillière'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 indispensable condition of acquiring American nationality he had to renounce 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 state from wbich 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 itpplication 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,

1899, For. Rel. 1899, 764.

Where a native of Turkey, naturalized in the United States, reentered his native land as a Turk, and accepted a teskéreh as a Turkish subject, and on this ground the United States consul-general at Constantinople refused to visé the passport which he had before leaving America obtained from the Department of State, the Department said: “ The circumstances of his return to Turkey bring

« PreviousContinue »