June 12, 1869.
Sir: I have the honor to acknowledge the receipt of your letter of May 11, 1869, in which you ask my opinion whether five persons residing in the island of Curaçoa, for whom application is made for passports, are citizens of the United States, and entitled, as such, to have passports issued to them. You state that four of them are over twenty-one years of age, and that one is a youth of fifteen; that four of them were born in that island and one was born in Saint Thomas; that four of them are children of native citizens of the United States domiciled at Curaçoa, who would appear not to have resided in this country since 1841, and the other the son of a native citizen whose residence is not stated; and that it does not appear affirmatively that any of the applicants have resided or intended to reside in the United States, or that more than one of them has ever been in this country.
I do not think that either of these facts is material to the question of their citizenship, except the fact that their fathers were, at the time of their birth, citizens of the United States. That fact being established, the children, under and by virtue of the act of Congress of February 10, 1855, chap. 71, (10 Stat., 604,) are deemed and considered and are thereby declared to be citizens of the United States, “Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” If, therefore, the fathers of the applicants, at the time of their birth, were citizens of the United States, and had at some time resided within the United States, it is my opinion that the applicants are citizens of the United States under the provisions of the statute, and entitled to all the privileges of citizenship which it is in the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation they are undoubtedly entitled to all the privileges of citizens.
In regard to the other branch of your inquiry, whether they are entitled, as such, to passports, my answer must be more qualified. I understand a passport to be a certificate of citizenship, and that a person receiving it is certified to be entitled to such protection as the Government can give to its citizens in foreign countries. But while the United States may, by law, fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation, or by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth, while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country under the obedience of a strange prince or country is an alien,” (Co. Litt., 128 b,) and that every person owes allegiance to the country of his [Page 1317] birth. I have no means of ascertaining what the law of Curaçoa may be in this respect. But if the applicants can receive any passport from your Department, it would seem that it must be a qualified one, which should state that although they were citizens of the United States, they were only so in the qualified sense which I have indicated, reserving such rights, obligations, and duties as might attach to them under the laws of the country in which they live and in which they were born, over which the United States could have no control while their domicile continued, nor until they should come within our territorial jurisdiction.
I do not understand that the granting of passports from your Department is obligatory in any case, but is only permitted where it is not prohibited by law. Whether according to the practice of your Department, passports are ever issued with any exceptions or limitations attached to them, I do not know; but in the strict and general sense of the language of your question, I am of opinion that the applicants are not entitled to passports.
I have the honor to be, &c.,