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“ While the Department's sympathies are with Mrs. Lassonne, it thinks that she is not entitled to a passport as an American citizen.”

Mr. Hay, Sec. of State, to Mr. Tower, amb. to Russia, Dec. 6, 1901, For.

Rel. 1901, 446.

4. FOREIGN RESIDENCE OF CITIZENS BY BIRTH.

(1) PERSONS BORN 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 (Würtemberg) 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 documentary evidence submitted by Mr. Rau.

“ It is conceived that, in applying to his case the doctrines of repatriation as tantamount under the circumstances to expatriation, you have extended the thesis you advance of Rau's citizenship being due to his father's naturalization beyond the point where it should rightfully 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 were permanently domiciled in Würtemberg, his father's place of nativity. 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 providing 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 expatriation, in the sense of renouncing original allegiance, nor is it necessarily

repatriation unless through the conflict of laws 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 while 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 your decision. The Department prefers to regard you as not having refused a passport to Mr. Rau, but, rather, as having, through commendable zeal in the furtherance of true American interests abroad, required of the applicant a declaration not technically 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 New 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 33 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 American citizen. The Department of State held that, while passports were issued only to citizens, there were 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 own 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 State, to Mr. Morgan, No. 86, Dec. 22, 1880, MS.

Inst. Mex. XX. 214.

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 consulate 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 16 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 rendering a decision in the case, would consider any application and statement which S. B. 0. 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 application 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 who, having emigrated to the United States in 1852, was naturalized October 10, 1860. The father returned to Europe in 1861, and has since resided there, doing, as far as you can learn, nothing to retain his American citizenship. It is to be in ferred that Rudolph Nejedly, being then 6 years old, was taken to Europe with his father, and he declares that he has since 1861 resided in Vienna. When 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 circumstances detailed in your dispatch, is far from constituting an expression of a purpose ever to return to the United States, and is altogether unsatisfactory.

“ Moreover, as Mr. Nejedly was born in the United States of a foreign father, it is probable that the most that could under any circumstances be claimed for him is that he was born with a double allegiance. 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 with the father (who abandons 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 explanation 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 issuanco of a passport to Mr. Nejedly.”

Mr. Blaine, Sec. of State, to Mr. Grant, min. to Aust.-Hung., No. 110, Feb.

26, 1891, For. Rel. 1891, 16. See a similar decision in the case of R. G. W. Tippitt, who claimed Amer

ican citizenship under $ 1993, R. S. (Mr. Blaine, Sec. of State, to Mr.

Grant, min. to Aust.-Hung., No. 179, Jan: 25, 1892, For. Rel. 1892, 6.)
See, as to the case of Rudolph Ernest Brünnow, Mr. Adee, Act. Sec, of

State, to Mr. Lincoln, min. to England, No. 70, Aug. 31, 1889, For.
Rel. 1889, 460.

In 1894 Mr. Thompson, the American minister at Rio de Janeiro, declined to issue passports to six native American citizens, on the ground that they had continuously resided twenty-seven years in Brazil, and had no apparent intention of returning to the United States. The action of Mr. Thompson was approved.

Mr. Uhl, Act. Sec. of State, to Mr. Thompson, min. to Brazil, No. 137,

May 31, 1894, MS. Inst. Brazil, XVIII, 58.

It appeared that of the six persons in question two were natives of Ala

bama and two of Georgia, while one was a native of Louisiana and one of Tennessee. In approving the refusal to issue them passports, Mr. Uhl said: “The refusal of the passport would not necessarily imply a refusal to intervene in case of their being 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, submitting the application for a passport of Carl Schimaneck, and a presentation of his case by Consul 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 declared 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 Bohemia. In considering the case, the question of the citizenship of the applicant's parents is not material, as Consul 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 construing these provisions the legation has correctly followed the numerous rulings 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 involved, 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 Secretary 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 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 with him to ex

plain it.

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