No. 622.

Mr. Winchester to Mr. Bayard .

No. 8.]

Sir: Referring to dispatches No. 130, March 10, 1885, and No. 145, June 27, 1885, addressed by the Department of State to my predecessor, in reference to the application of Mr. Robert Emden for a passport, I have the honor to submit the following statement:

The dispatch No. 145, June 27, 1885, was received by this legation after the departure of my predecessor, and I had assumed the duties of the position. Immediately upon its receipt Mr. Staub, the United States consul at St. Gall, from whence Mr. Emden’s application was made, was informed as to the decision of the Department in Mr. Emden’s case, and the citation of the section of the Revised Statutes relating thereto, as set forth in the dispatch. This legation is now in receipt of a letter from Mr. M. Ph. Emden, the father of Robert Emden, urging the claim of his son to a passport.

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It has occurred to me that the Department may have labored under a misapprehension as to the correct status of Mr. Emden. It does not seem to me that his case is embraced by section 2172 of Revised Statutes, under which it is placed by dispatch of June 27, 1885. That section could only apply to children in esse at the time of the naturalization of the parent. Whereas Mr. Robert Emden was born in 1862, and his father was naturalized in 1854.

Is not his claim to citizenship to be determined under section 1993 Revised Statutes, whereby the father’s naturalization conferred upon his children subsequently born the privileges of citizenship, though “born out of the limits and jurisdiction of the United States”?

Mr. Emden has made affidavit, accompanied with satisfactory proof, that he is the identical person named in a passport, issued under instruction from the Department of State, No. 19, January 12, 1883, by this legation to M. Ph. Emden, in which he was described as a minor child of said M. Ph. Emden; and further, that it is his intention soon to return to the United States, and that the passport is desired for the purpose of continuing his studies in Germany. In view of the facts stated, I have felt constrained to accede to the request of Mr. Emden, and resubmit his case for the consideration of the Department. However, I felt it to be my duty to say that there are other grave features in Mr. Emden’s case, which may materially affect its apparent merit.

Mr. Emden, although twenty-three years of age, has never been within the sovereignty or territorial jurisdiction of the country whose protection he claims. Whilst continuous residence abroad does not of itself work a forfeiture of citizenship, certainly the right of an unlimited residence away from a country, the citizenship of which is claimed by one of foreign birth—by inheritance, as it were, from a naturalized parent—is very undesirable and rests upon very precarious foundation. Such persons, as a matter of decency, even if not of statutory requirement, should be compelled, at least occasionally, by their personal presence, to evidence a willingness to contribute to the support and assume the obligations of a citizenship which they are so quick to invoke in their behalf when demanded by their interests.

My brief experience has furnished ample evidence that many aliens seek naturalization in the United States without any design of permanent residence there, but solely for the purpose of returning either to their native or some contiguous country, and, by means of their citizen’s papers, escape obligations to the country of their actual habitation and discharge none to the country of their adoption. It is a shameful prostitution of American citizenship, and it will doubtless some day necessitate the enactment of a law limiting the time which a citizen shall absent himself under a pretended animo revertendi, enjoying the advantages of two nationalities without participating in the burdens and duties of either.

The books of reference within reach of this legation being very limited I have not been able to find any statement of the law as established by-precedent or judicial decisions, as to what should be regarded as evidence of the absence of an intent to return, and what is the extent of the obligation of the Government towards those claiming to be citizens domiciled for many years uninterruptedly in foreign countries, engaged in business, marrying, and their children claiming citizenship of a country they never have and in all probability never will see.

To what extent can this be carried before the right exists to justify by a refusal of the recognition of the claim of protection, by means of a passport?

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Without any purpose to prejudice the case of Mr. Emden, it should probably be stated that Mr. Emden’s father, Mr. M. Ph. Emden, experienced considerable difficulty in securing the renewal of his passport, it being the subject of correspondence between the State Department and my predecessors from April, 1881, to January, 1883, when, by instruction from the Department, it was issued, having been previously twice refused. A full history of his case, if desired, may be found in dispatches No. 203, April 23, 1881, No. 12, November 14, 1882, and No. 19, January 12, 1883. The dispatches referred to herein are those from the State Department to this legation.

I have, &c.,

BOYD WINCHESTER.