See, also, Mr. Hay, Sec. of State, to Mr. Leishman, min. to Switz., No. 214, Feb. 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 place is not incompatible with the preservation of a domicil in another place. (Supra, § § 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 Washington, inquired whether the legation at Berne might not be authorized 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 there animo manendi, .. he thereby forfeits the right to the protection of this Government and is to be considered as having expatriated himself." Mr. Hill, Act. Sec. of State, to Mr. Pioda, Swiss min., June 14, 1901, For. 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 United 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, 19. 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 imperfectly. They desired passports" for purposes of business" in Russia. By the Russian law persons born in Russia of alien parents 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 privilege they remain aliens. In the present cases, therefore, no conflict of allegiance arose, but the legation refused to grant the passports on the ground of a want of connection of the applicants with the United States. A passport waś, however, issued to Philip H. Powers, 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 draws a clear distinction in exercising its statutory discretion to issue passports as evidence of the right to protection. The relation of the citizen to the state being reciprocal, embracing the duties of the individual, no less than his rights, the essential thing to be determined is the good faith with which the obligations of citizenship 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 circumstances of sojourn abroad a passport may be withheld. "Alexander Powers being now sui 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 parental control. It appears that it is his father's purpose to send him to Vladivostock for business purposes, thus involving his separate residence in Russia. If the facts in your knowledge 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. 6 "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 eitizen. 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 children as soon as convenient to do so,' or when business circumstances would allow.' More positive evidence of intention to return is certainly 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 he intended to return to the United States within two years. He 66 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 negatived" 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. Gresham, Sec. of State, to Mr. White, min. to Russia, June 6, 1893, With this instruction Mr. Gresham annexed a copy of his No. 84, of April 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. In the first one the applicant for a passport was a native citizen of the In the second case the applicant was a naturalized citizen of German origin, who had resided twenty-two years in Russia. In the third case the applicant was a widow who had lived twenty-three years abroad, 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 Europe, where he apparently continued to reside, making only occasional visits to the United States. He finally settled in Berlin in 1865, and died there in 1876. During his residence in Europe he married a Prussian woman, who, in 1883, applied to the American legation in Brussels for a passport. She resided with her husband 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 Unite! States. It was held that, "under such statement of facts, and the treaty of 1868 with Germany," she was not entitled to a passport. Mr. Frelinghuysen, Sec. of State, to Mr. Fish, No. 35, April 23, 1883, In 1887 an application for a passport was made to the American legation at Vienna by Mrs. Antonia Mundé, 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 1854; that he went in 1866 to Bavaria and afterwards to Würtemberg, and that still later he established his residence in Switzerland, where he married the applicant. 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. Mundé a passport. In approving this decision the Department of State remarked that it was not necessary to determine the effect of Mr. Mundé'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 submitted, 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. Mundé might afterwards show herself to be entitled. Mr. Bayard, Sec. of State, to Mr. Lawton, min. to Austria, July 28, 1887, 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, In 1848 a native of Bohemia, named Eisenschimmel, emigrated to the United States, and in 1868 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 1899 his widow applied to the United States legation at Vienna for a passport and exhibited one which had been issued to her in 1896. It appeared that in obtaining this passport she stated that she would within two 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 passport, 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 entitled to a passport was not based on the hypothesis that she would be claimed as a Swiss citizen by Switzerland. This was merely mentioned as a suggestion that she might possibly secure a Swiss passport. 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, was married in St. Petersburg in 1874 to Mr. Charles Lassonne. She is now a widow. She has never been in the United States, and has no apparent intention of coming hither. . . . The only question for the Department to consider is whether, under the circumstances, Mrs. Lassonne is entitled to protection as a citizen of the United States. Mrs. Lassonne's claim can, of course, be no better than her husband's would be were he alive; and it would seem that at some time in or prior to 1874 he virtually abandoned his American residence for a European domicil. The widow's case is even weaker, for, during nearly a quarter of a century since her marriage, she has never enjoyed an American domicil.' |