No. 287.

Mr. Frelinghuysen to Mr. Kasson.

No. 84.]

Sir: Your dispatch, No. 94, of the 6th ultimo, reports your action in regard to the application of Mr. Karl Klingenmeyer for a passport. While the Department concurs with you in thinking that a passport should be withheld for the present, at least so far as the issuance by your legation is concerned, because of the doubt raised as to the good faith of the applicant by the circumstance of his having already obtained a passport from your predecessor on the false pretense of birth in the United States of America, the views you hold as to the actual status of the party on the facts submitted seem to require some modification.

The facts are briefly that Mr. Karl Klingenmeyer’s father having been naturalized in the United States of America (but when or where does not appear), returned to Germany, where he resided in 1860 and until his death in 1881, without having evinced any intent to return to this country. Karl, the son, was born in Wurtemberg in the year 1862; has not been in the United States; has no intention of residing here, but desires a certificate of American citizenship as a formality towards his intended marriage. This you refuse “by reason of his father’s renunciation of [Page 397] American citizenship (Article IV of the treaty of 1868), combined with his own German birth and free choice of German residence without intention of going to the United States.”

It does not appear whether the father returned from America to Wurtemberg, his native state, although the fact that the son was there born would seem to indicate that he did. This point, however, is not now of importance, and may be passed over.

The precise date of the father’s return to Germany in the year 1860 is not given, but it may be assumed that the son’s birth on the 14th of February, 1862, occurred within the period of two years prescribed by the several naturalization treaties with North Germany.

But that point also is unimportant, in view of the fact that under these treaties, a two years’ residence in his native country of a citizen naturalized in the United States of America does not of itself divest him of his adopted citizenship. The treaties provide that when a citizen of either country naturalized in the other shall renew his residence in the country of his birth without the intent to return to his adopted country, he shall be held to have renounced his naturalization, and further that the intent not to return “maybe held to exist” after the residence in the native country shall exceed two years. The residence, therefore, is only evidence open to rebuttal of lack of intention to return to the adopted country. The treaty, therefore, by itself does not work forfeiture of citizenship, and in this case some affirmative governmental act was necessary to show that the elder Klingenmeyer had through residence in Germany, without intent to return here, forfeited his naturalization.

This is the construction of the fourth article of the treaty of 1868, which has been maintained by this Department, and, so far as is known, admitted by the German Government. That the article does not of itself operate to make the returning individual a German subject is established by precedents on file in your legation.

The party affected is in some instances required, after the expiration of the two years’ residence, to affirmatively resume his previous allegiance, under the alternative of quitting the country, thus forcing him to elect between the two citizenships. Of course, if he quits the country he retains his adopted citizenship, unimpaired by the fact that he has exceeded the two years limitation.

If the father of Mr. Karl Klingenmeyer did in fact renounce his American citizenship, and resume his original allegiance, in a manner recognized by the laws of his native country, that fact would operate as a renunciation of the adopted citizenship for his minor children, at least while they remain within the jurisdiction which their father re-acknowledged.

The first point to be decided, then, is whether, as a fact, the father, during the son’s minority, ceased to be an American citizen, and in deciding that the treaty clause should be construed as hereinbefore set forth. If the father did not so cease, the case is plain, and the son is an American citizen, unless since reaching the age of twenty-one years he has himself forfeited his rights.

We now reach a point less easy of decision, and that is, assuming that the father resumed German citizenship during the son’s minority, what are the son’s rights as against this Government upon reaching the age of twenty-one years, for there is no doubt that during minority his rights, if he had any other than those possessed by his father, were at least suspended and subject to the father’s allegiance.

[Page 398]

The statute of the United States (Revised Statutes, section 1993) declares that all children born without the United States whose fathers “were or may be at the time of their birth citizens thereof,” are themselves citizens of the United States, but that right “shall not descend to children whose fathers never resided in the United States.”

Therefore if Mr. Karl Klingenmeyer’s father was at the time of his son’s birth a citizen of this country, the son was such a citizen, while possibly by the German law (which I have not at hand) he might also be a citizen of the place of his birth. On general principles such conflicting citizenship is decided according fco the laws of the one of the two countries claiming allegiance within whose jurisdiction the individual happens to be. (Vol. 13, Opinions Attorneys-General, page 89.)

The following facts may be considered as established in this case:

(1) That the elder Klingenmeyer, the father of the present applicant, Mr. Karl Klingenmeyer, came to the United States of America and was naturalized here some time before the year 1860.

(2) That the father returned to Germany some time in that year (1860) with the avowed intention of remaining permanently in that country, and of never returning to the United States of America with a view to residing permanently in this country.

(3) That the elder Klingenmeyer adhered to the intention thus manifested by remaining in the country of his origin, and that of his primitive allegiance for more than twenty years, and up to the time of his death in the year 1881. This must be taken in reason as well as in law to be a renunciation of his adopted citizenship. No matter to what-country he may have gone, there can be no stronger, no clearer manifestation of intent against the animus revertendi than a man’s own declaration followed by the establishment of a permanent domicile in the new country of his choice, and the entry into business there, and remaining in that newly-chosen country until his death, over twenty-one years later. It is also a resumption of his original nationality and native allegiance. That is a question in regard to which either the United States or Germany may insist upon its own view of, as it may be held respectively by either Government.

It is not materially essential to the determination of the present question, but as is stated by Attorney-General Hoar in the case cited above (Vol. 13, Opinions of Attorneys-General, page 90), is usually determined by the country, claiming affirmatively, when the man is found within that jurisdiction.

(4) That Mr. Karl Klingenmeyer was born in Wurtemberg, Germany, on the 14th day of February, 1862, which event was after the date of the father’s return to Germany and his father’s renunciation of his acquired United States citizenship.

(5) That Mr. Karl Klingenmeyer never resided in the United States, in fact never was in this country.

(6) That he now publicly disclaims any intention of ever coming to the United States to reside; and also, in any equally public manner avows his intention of permanently residing in Germany, adding that he desires an American passport solely for the purpose of facilitating his matrimonial plans and arrangements.

Now, suppose that this young man had obtained through his father’s acquired American nationality any inchoate rights or claim to United States citizenship, and that these, on account of his father’s voluntary foreign residence, and his loss of American citizenship, were held in abeyance during the son Karl’s residence with his father there, reserving to him, Karl Klingenmeyer, the right of choosing for himself when [Page 399] he should have attained the age of twenty-one years, which country he would adhere to. This reserved privilege in his favor is always accompanied by the implied condition that he shall make and in some formal manner, not always prescribed, but nevertheless well understood, avow his election within a reasonable time after he attains majority.

Applying these just and reasonable requirements to the case of Mr. Karl Klingenmeyer, how has he fulfilled them? He is now nearly twenty-three years old; he had not, until the filing of his application for a United States passport, even so much as claimed American citizenship, and he does so now, accompanied by the open avowal that he never intends to make the United States his home, his residence, or his country, except to demand technical citizenship in so far as that may serve his convenience and subserve his personal interest. He neither bears nor acknowledges any obligation to share with the American citizens any of the burdens incident to the character of citizenship in this country. It is not known that he has ever paid any taxes in the United States; indeed, there is every reason to believe that he has not. It is known that he has never performed any public service, civil or military, in or for the United States; and it is also known that be is not within the call of the United States should his services be at any time in the future needed in the nation’s defense. Indeed, it may be assumed from his declarations and acts that if at any future time the United States and Germany should be at war, Mr. Karl Klingenmeyer would be found fighting under the German flag and against the United States, whose protection he is now claiming. Neither reason, justice, nor public law countenances any such anomalous condition of nationality, so that without deciding the possible judicial question of two years’ residence in the country of origin, which is involved in the fourth article of the treaty of February, 1868, it may well be held that Mr. Karl Klingenmeyer is not on his present application entitled to a United States passport, and your refusal to comply with his request in that behalf is therefore approved by the Department.

I have, however, deemed it most expedient to place the refusal on the ground indicated in this instruction, leaving the question of the interpretation of the two years clause in Article IV of the treaty of 1868 open to the decision of the Supreme Court of the United States, when the question in proper form may be brought before that tribunal. You may possibly find some of these suggestions of value in future eases of a similar character that may come before you.

Assuring you that they are not advanced in any spirit of criticism,

I am, &c.,