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Obviously, these remarks apply with equal force to one who remains in a foreign country after he has attained his majority. The circular further says:
“When an applicant has completely severed his relations with the United States; has neither kindred nor property here; has married and established a home in a foreign land; has engaged in business or professional pursuits wholly in foreign countries; has so shaped his plans as to make it impossible or improbable that they will ever include a domicil in this country-these and similar circumstances should exercise an adverse influence in determining the question whether or not a passport should issue.'
Each circumstance quoted above appears to be applicable to Mr. Schimaneck, with the additional fact that in applying for the passport issued him by your legation August 4, 1894, he swore that he intended to return to the United States, which he has not done, and in his pending application he makes the same promise, which there is strong reason for believing he will not keep. The circular also says:
66 • If, in making application for a passport, he (the applicant) swears that he intends to return to the United States within a given period, and afterwards, in applying for a renewal of his passport, it appears that he did not fulfill his intention, this circumstance awakens a doubt as to his real purpose which he must dispel.'
“ So far from the doubt having been dispelled in this case, it appears to have been confirmed. The Department is therefore of the opinion that, there being no additional facts to change the aspect of the case, Mr. Schimaneck's application for a passport should not be granted and the applicant informed that he must renew his residence in the United States which was abandoned in his infancy, before he can expect to receive the protection of this Government while he is abroad."
Mr. Hay, Sec. of State, to Mr. Herdliska, chargé at Vienna, Aug. 20 1901,
For. Rel. 1901, 13.
No. 71, Sept. 15, 1903, For. Rel. 1903, 595.
(2) PERSONS BORN ABROAD.
John Pepin, a Frenchman by birth, emigrated when a young man to the United States, and became a naturalized citizen. In 1850 he returned to France, where he married a French woman, by whom he had two children, a daughter and a son. He never returned to the United States to live. At his death he left some property at New Orleans, which his family continued to hold. In 1873 the widow applied to the American legation in Paris for a passport for her son, who was then eighteen years of age. It appeared that she had visited the United States two years before with her daughter, and had obtained a passport from the Department of State as an American citizen; and she stated that her son had once obtained a passport from the American legation in London, but had lost it. He had never been in the United States. It was held that he exhibited none of the
indicia necessary to show an intent on his part to assume the duties of citizenship as well as the privileges granted by the act of 1855 " (10 Stat. 604); that were it not for his desire to avoid the performance of duties required by French law, he probably would not have asserted American citizenship; and that there was a presumption of a purpose of expatriation so strong that, unless it could be rebutted to the legation's satisfaction, he would not be entitled to the legation's protection against the operation of the laws of the country.
Mr. Fish, Sec. of State, to Mr. Washburne, min. to France, June 28, 1873,
For. Rel. 1873, I. 256, 260–261.
H. K. was born in Mexico in 1855, after his father, a naturalized citizen of the United States, had removed to that country. H. K., so far as he could recollect, had never been in the United States. His permanent abode was London, England; he had no connection with any American interest, and he had no intention to settle in the United States or to assume the duties and responsibilities of American citizenship. He had once obtained a passport as a citizen of the United States, but it was cancelled by the legation of the United States in London because it was over two years old. The Department of State refused to instruct the legation to issue a new passport.
Mr. Bayard, Sec of State, to Mr. White, chargé, March 5, 1889, For. Rel.
1889, 449; Mr. Wharton, Assist. Sec. of State, to Mr. Keller, May 3, 1889, 172 MS. Dom, Let. 650.
I have to acknowledge the receipt of your No. 10 of October 3d last, in which you transmit an application of Dr. Julius Altschul for a passport, together with affidavits of the applicant and other persons in regard to the good faith of his residence abroad and of his intention to come to the United States upon the completion of the studies which he is now pursuing in a chemical laboratory at Grumau near Berlin.
“In this relation it is proper to recapitulate the facts in the case. Julius Altschul was born in London, Nov. 3, 1864. His father, Sig. mund Altschul, an Austrian subject by birth, came to the United States in 1848. In 1854 he was naturalized and went abroad and never afterwards returned to the United States. Up to March, 1889, he was from time to time granted passports as a citizen of the United
States by various legations, and in April last he died, while an application to your legation for another passport was still pending.
“ It is clear, therefore, that when Julius Altschul was born his father was regarded by this Government as one of its citizens. Section 2172 of the Revised Statutes provides that the children of persons who are now, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. Under this provision Julius Altschul was born with a title to American citizenship. Being born out of the United States, he might also have been subject to the claims of another government, if his birth within its jurisdiction made him a citizen under its laws. But no such claim has been made and consequently no conflict of allegiance is presented. Nor does there appear to be any ground whatever for any claim of allegiance by the German Government, within whose jurisdiction Julius Altschul now is, and in which he proposes to remain until he comes to the United States.
“ Under these circumstances, it is thought that the papers and affidavits now presented to the Department disclose a reasonable explanation of Julius Altschul's present residence in Germany and of his proposed temporary residence there for the next few years consistent with his declaration of continued allegiance to this country.
“You are therefore instructed to grant him a passport, but to make such a record as will bring the circumstances of the case before the legation, should an application be made by him for another passport in the future."
Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, No. 32, Dec.
14, 1889, MS. Inst. Germany, XVIII. 275.
“I have to acknowledge the receipt of your No. 35 of the 14th ultimo, in which you transmit an application of Arthur Altschul for a passport.
“ He was born at Dresden, Saxony, June 16, 1866, and is now twenty-three years of age. His father, Sigmund Altschul, an Austrian subject by birth, came to the United States in 1818. Arthur Altschul still resides in Dresden, though he is at present temporarily in Berlin. In 1887, just after attaining his majority, he received a passport as a citizen of the United States from the legation at Berlin. Two years having expired, he wishes this passport renewed, for the purpose of enabling him to reside as an American citizen in Germany in order that he may complete certain philological studies, which he is pursuing with reference to teaching in the United States. In support of his application he submits affidavits of himself and other persons to show that he is acting in good faith, and proposes to come to the United States upon the completion of his studies. He states that he has lately taken the degree of Ph. D. at the University of Leipzig. Section 2172 of the Revised Statutes provides that 'the children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. Under this section, Arthur Altschul was born with a title to American citizenship. But it by no means follows that he may not, by reason of having been born out of the limits and jurisdiction of the United States, or by reason of subsequent acts of himself or of his parents, have become subject to the claims of another government. In such case it is the doctrine of this Government that a person may be possessed of a double allegiance, and that upon attaining his majority it is necessary for him to elect which he will exclusively adopt. He is not permitted to retain both, and by so doing to use one for the purpose of evading his duties to the other, or to both. It has been suggested to the Department that, unless this Government recognizes the American citizenship of Arthur Altschul, he may be liable to the claims of the German Government, within whose jurisdiction he was born and still lives. It has, however, repeatedly been held, upon the maturest consideration of the law, that the protection of this Government can not be employed for the purpose of enabling a person to escape his obligations to a government to which he owes valid allegiance, and that, in the case of double allegiance, a passport should not be granted by one of the governments to which allegiance is due in order that the applicant may, while continuing to reside within the jurisdiction of the other, be exempt from its claims. This principle was laid down in 1869 in the case of certain persons residing in Curaçao (13 Op. Att. Genl. p. 89; Hoar, Attorney General) and again in 1875 in the case of one Steinkauler, in Prussia (15 Op. Att. Genl. p. 15, Williams, At. Genl.) and has since been uniformly followed.
“ In the present case, however, it is stated that under the laws of Germany that Government has no claim upon the applicant. This statement is sustained by the fact that no such claim has ever been made. This being so, the granting of a passport would merely serve the purpose of enabling the applicant to reside in Germany as an American citizen until the accomplishment of his studies and of his design to come to the United States. Under these circumstances it is proper to issue the passport. But in so doing it is to be understood that it is not granted and can not be permitted to be used either for escaping [claims] on the part of the German Government or for permanent residence abroad.”'
Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, No. 33, Dec. 14,
1889, MS. Inst. Germany, XVIII. 277.
a The opinion here cited was given by Attorney-General Pierrepont.
“Your despatch No. 445, of the 12th instant, in relation to the applications for passports made by Mr. Camilo Ponce de Leon and his two sisters, has been received.
The applicants are stated to be children of J. M. Ponce de Leon, who it is said was of Cuban origin, and was naturalized as a citizen of the United States prior to the birth of the children. It is presumed that their father is Mr. José Manuel Ponce de Leon, a naturalized Cuban, well known to the Department by reason of the claims advanced by him against the Government of Spain for injuries during the Cuban insurrection. This Mr. Ponce de Leon is of record here as having been naturalized before the court of common pleas of New York City on May 25, 1855. Several passports have been issued to him from time to time, and no doubt has arisen here as to his bona fide retention of American citizenship. Assuming the point of identity, there is no question that the three applicants were born citizens of the United States. They all appear to have been born at Cardenas, in the island of Cuba : Eugenia, on November 5, 1859; Maria de los Angeles, on August 13, 1863; and Camilo on December 11, 1864. They are therefore, respectively now, 31, 28, and 26 years old. How much of their minority was passed in the United States does not appear. They aver having left the United States in April, 1870, and since then would appear to have resided in France. The present applications for passports would seem to be the first made by them-a fact perhaps to be accounted for by the circumstance of living in a country other than that of paternal origin, and the absence of ground for allegation of any claim to their allegiance on the part of France.
“ The Department has recently had occasion to instruct you in regard to somewhat analogous cases, where a minor, who, by birth in a place or of a certain parentage, in the regular way of gaining citizenship, is invested with the status of an American citizen, attains legal age in a foreign country. The present cases, however, differ from that of John Maurice Hubbard, which formed the subject of the Department's No. 353, of the 30th ultimo, in that these three persons, not having been born in France, appear not to have been called upon to declare their option of American citizenship within the year succeeding their coming of age. As regards their relation to the Government whose citizenship they claim, the similarity is sufficient to cause their cases to be gauged by the same rule of reciprocal performance of the duties of citizenship and obligation of protection while the parties remain abroad. Their cases are, therefore, to be determined on precisely the same footing as those of native citizens whose long domicil abroad and absence of definite intention to return, create a presumption of voluntary abandonment of claim to protection.