Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Asboth to Mr. Seward
Sir : I have the honor to enclose herewith for your information copies of a correspondence that has taken place between Consul Hollister and myself, viz :
1. My letter relative to Consul Hollister’s refusal to give protection papers to United States citizens here, on the ground that all United States citizens in a foreign country lose, as such, their claim to the protection of the United States government, and in which I refer the consul to an act of Congress, (approved February 10, 1855,) whereby it is enacted that even the sons of United States citizens born abroad shall be considered citizens of the United States, and are entitled to all the rights as such, and most certainly to the protection of the United States government and its agents all over the world.
[Page 126]2. Consul Hollister’s reply, explaining that he had refused “protection papers” to United States citizens residing in this country, because they sought such papers to protect themselves from military service here.
3. My reply, with a printed copy of the treaty between the United States and the Argentine Confederation, (July 27, 1853,) which expressly exempts United States citizens from compulsory military service in the Argentine Confederation. * * * * * * *
Confidently hoping that you will approve of the views taken by me on these subjects, in support of my fellow-citizens here, I have the honor to be, sir, very respectfully, your obedient servant,
Hon. William H. Seward Secretary of State, Washington, D, C.
Mr. Asboth to Mr. Hollister
Sir: I have this day received from our fellow-citizen, Mr. Harry C. Albee, a communication, copy of which I beg herewith to enclose, marked A, complaining that you refuse to grant him a duplicate of his “protection paper,” issued by your predecessor Mr. Helper, September 19, 1866, and recorded accordingly in your office, and that you disclaim any obligation on your part to protect United States citizens here, on the ground that all United States citizens voluntarily residing in a foreign country lose, as such, their claim to the protection of the United States government.
Mr. P O. Gondon, also a citizen of the United States, and registered as such at your office under No. 990, has made a similar complaint this day, copy of which you will find enclosed, marked B.
Although I am inclined to believe that both these gentlemen are laboring under misapprehension as to your above decision, still I deem it necessary to ask your explanation upon this subject, referring you at the same time to the act of Congress approved February 10, 1855, Chap. 71 of the Laws of the United States, by which it is enacted that even the sons of United States citizens born abroad shall be considered and are declared citizens of the United States, and thereby entitled to all the rights as such, and most certainly to the protection of the United States government and its agents all over the world.
I therefore confidently hope that you will consider, in obedience to our laws, both the complaining gentlemen as citizens of the United States and give them all the protection to which they are entitled. You will also be pleased to give the same protection to all other citizens of the United States who in future may apply to you for it.
Respectfully, your obedient servant,
Madison E. Hollister, Esq., United States Consul.
Mr. Hollister to Mr. Asboth
Sir: I have the honor to acknowledge the receipt of your communication of the 29th instant, with the enclosure marked A, being a copy of a letter addressed to you by Mr. Harry C. Albee, an American citizen, in which you state that he complains that I refuse to grant him a duplicate of his protection papers, issued by my predecessor Mr. Helper, September 19, 1866, and recorded accordingly in this office, and that I disclaim any obligation on my part to protect United States citizens here on the ground that all United States citizens residing in a foreign country lose, as such, their claims to the protection of the United States government; and also that Mr. P. O. Gondon, a citizen of the United States, registered as such in this office under No. 990, has made a similar complaint by letter, a copy of which, marked B, is also enclosed. In this communication you do me the favor to express an inclination to believe that both these gentlemen are laboring under a misapprehension as to my decision, and ask for an explanation upon the subject from me, at the same time referring me to an act of Congress approved February 10, 1855, Chap. 71 of the Laws of the United States, by which it is enacted that even the sons of United States citizens born abroad shall [Page 127] be considered and declared citizens of the United States, and which you state are thereby entitled to all the rights as such, and most certainly to the protection of the United States government and its agents all over the world. You also, in this communication, express the hope that I will, in obedience to our laws, consider both the complaining gentlemen as citizens of the United States and give to them the protection to which they are entitled, and that you (I) will be pleased to give the same protection to all other citizens of the United States who may in future apply to me for it.
In answer thereto I beg leave to state, that as far as I can at this time remember the conversation with these two gentlemen, they have stated it correctly, so far as it has been communicated to your excellency, but in order to a correct understanding of the question in its relation to all the facts and the law applicable thereto, it becomes necessary for me to observe that these two gentlemen, as they informed me, left the United States some years ago, (Mr. Albee, if I mistake not, five years,) leaving no families there, with no fixed intention of returning, and had made this country the place of their business and residence. It is important further to observe, that in some portions of the Argentine Confederation there had been a rising in rebellion against its authority, and that it was deemed necessary by the public authorities to order an enrolment of the national guards, with a view, if the public exigencies required it, of calling out the military to quell it. It becomes further important to state that martial law, as I have been informed, had been established to a certain extent in Buenos Ayres, and that in its execution the authorities had made arrests of persons suspected of hostile intentions towards the government, and of some also who had failed or refused to enroll their names in the national guards, among the latter of whom are found some who claimed to be citizens of the United States. That they had the right to do so, seems to be unquestionable, for it cannot be doubted that martial law “extends to all the inhabitants (whether civil or military) of the district where it is in force.” (Halleck’s Elements of International Law.)
To escape from arrest and to protect themselves from military service, “for the preservation of order, and the enforcement of the laws,” these two gentlemen applied to me for the protection papers referred to. With this preliminary statement of facts, and the single allusion to the principle of law authorizing military arrests, I beg leave to state some further principles of law applicable to the question under consideration, and to refer you to the authorities which support them.
“In case of war between the country in which a person actually resides, with the intention of remaining, and any other country, he is obliged to defend it, in return for the protection it affords him, and the privileges which the laws bestow upon him as a subject. The property of such a person, equally with that of the native subject in his vicinity, is to be considered as the goods of the nation in regard to other states.” (Wheaton’s Elements of International Law, p. 404, part 4, chap. 1.)
The same author, on page 403, says, “having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it, until he has thrown it off either by an actual return to his native country or to that where he was naturalized, or by commencing his removal, bona fide, and without an intention of returning.”
Halleck in his Elements of International Law, abridged edition, page 174, latter clause of section 7, asserts the doctrine that domiciled foreigners may be required to do duty in the militia, or the civic or national guards for the preservation of order and the enforcement of the laws within a reasonable distance of the place of their domicile. “It does not include,” he adds, “service against a foreign enemy, nor general military service.” In the works quoted, and to which I beg leave to refer your excellency, the law as to what constitutes a domicile so as to render a citizen of one country a subject of that in which he resides, with the consequences resulting there from, is well settled, and in my view applicable to the case of the two gentlemen to whose communications you refer.
Not having the act of Congress of 1855, to which I am referred, before me, I am unable to judge of its bearing upon the question under consideration.
There is, however, in my view, a clear distinction as to the rights of a citizen who continues to reside within the jurisdiction of his native or adopted country, and those of one who abandons his country, withdraws himself from its defence, withholds all aid in its support, and makes another the place of his personal domicile. In the one case he is not only a citizen but a subject also; in the other, though he may not cease to be altogether a citizen in the general acceptation of the term, he ceases to be a subject, and become by his own choice the subject of another, and a qualified citizen thereof. In the latter case he voluntarily puts himself under the jurisdiction of the government where he resides, enjoys the protection of its laws in his person and property, and owes obedience thereto. This distinction is shown, in my view, by the authorities to which I have referred you, and I have felt it my duty in these two cases to be governed by them, for the reason that they are brought within their general scope. In thus stating somewhat fully the reasons for my action in the premises, I avail myself of the opportunity which the occasion affords of frankly confessing the great reluctance with which I departed from what I am informed was the uniform usage of my predecessors, inasmuch as it was the cause of disappointment to citizens of our country, and implied a disregard of precedent, which, in all cases I shall feel under obligation to follow, unless I find it opposed to some well established rule of law.
[Page 128]I am happy to be relieved from further embarrassment of this character by your excellency’s communication, and shall endeavor hereafter to follow the course indicated therein, in all cases of citizens of the United States who may apply at this consulate for protection. Before concluding this reply it may be of interest to state that I have acted in this question upon the presumption that there are no treaties existing between our government and that of the Argentine Confederation by which the operation of the laws of nations bearing upon it has been suspended or in any degree modified. If there are such they have not been brought to my notice.
In further explanation of my course, I beg leave to state that neither in Statutes of the United States nor the consular instructions have I found any authority conferred upon consuls to issue what are technically called “protection papers.”
I am, with great respect, your obedient servant,
Major General A. Asboth, United States Minister.
Mr. Asboth to Mr. Hollister
Sir: On my receiving, on the 29th ultimo, complaints from Mr. Albee and Mr. Gondon, registered in your office as United States citizens, that you refused to give them respectively their proper protection papers, on the ground that all United States citizens in a foreign country lose, as such, their claim to the protection of the United States government, I deemed it proper to refer you to the act of Congress approved February 10, 1855, chap. 71, of the laws of the United States, by which even the sons of United States citizens born abroad are declared citizens of the United States, the wording of the law being as follows :
“Be it enacted by the Senate and House of Representatives of the United States of Americain Congress assembled, That persons heretofore born, or hereafter to be born out of the limits and jurisdiction of the United States whose fathers were or shall be, at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States.”
At the same time I expressed a hope that you would consider both the complaining gentlemen as United States citizens, and give them the protection to which they are entitled from the agents of the United States government all over the world. In your answer, dated 30th ultimo, which I only received yesterday, you admit the correctness of the statements made by the two gentlemen above mentioned as to the conversation that took place between you and them, but attributing their application for “protection papers” to a desire to escape military service here, you take the trouble to refer me at length to a series of problematical and general theories, in direct opposition not only to the de facto laws of the United States, but also to the existing treaties in force between the United States and the Argentine Confederation.
Without entering to discuss the merits of your authorities, I beg to give you as a supplement to my note of the 29th ultimo, article of the treaty of friendship, commerce, and navigation between the United States and the Argentine Confederation, (July 27, 1853,) which reads as follows :
“The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatever, whether by sea or by land, and from all forced loans, requisitions, or military exactions.”
Volume 10 of the United States Statutes at Large, containing the act of Congress above alluded to, kindly lent by you at my own request, is herewith returned with thanks, and I also send, for the use of your office, a copy of the collections of treaties of the Argentine Confederation with foreign nations, among which you will find in full, at page 286, the treaty between the United States and the Argentine Confederation, just quoted.
You conclude your above mentioned note by the statement that you are unable to find either in the Statutes of the United States or in the consular instructions any authority conferred upon consuls to issue what are called “protection papers,” and I have therefore to refer you to the United States Consuls’ Manual, page 255, chap. 30, on the “Duties of consuls general and consuls in relation to the granting of passports and certificates,” more particularly to section 628 and section 630. It is true that, according to section 625, ibid.,in any country where there is a diplomatic representative, no consul is authorized, without special permission, to issue passports, except in the absence of such representative from the place of his legation; but as the duty of issuing such passports and certificates was transferred by my predecessors here to the consulate of this city, I see no cause for disturbing at present an arrangement which concentrates in one office the collection and accounting of fees.
I have entered thus fully into a reply to your note because the subject is one of such paramount [Page 129] importance that I have deemed it my duty to make you cognizant of the grounds of my decided opinion ;but I would avail myself of this opportunity to suggest that, whenever you should feel a doubt upon any matter connected with the discharge of your duties, you might in future be pleased to confer personally with me—certain that you will ever find in me a frank and sincere desire to assist you in upholding the dignity of our government and securing the interests of our fellow-citizens.
Sincerely your obedient servant,
M. E. Hollister, Esq., United States Consul.