Mr. Porter to Mr. Winchester.
Washington, September 14, 1885.
Sir: In reply to your No. 8, of 26th August, 1885, concerning the application of Mr. Robert Emden for a passport, I have to say that I now understand the facts in the case to be as follows: Mr. Emden was born in Switzerland in 1862, and has never been in the United States. His father, a Swiss by origin, was naturalized at New York in 1854, and appears to have soon afterwards returned to Switzerland, where, as far as the papers show, he is still resident.
In view of the many attempts in late days of persons, Swiss by birth, to relieve themselves of Swiss allegiance by formal naturalization in this country, without accepting permanently the duties imposed by citizenship in the United States, it is impossible not to desire to scrutinize closely an application of this kind, made by a young man who has never been in the United States, basing his claim on the naturalization of his father, who appears never to have permanently accepted the duties of his naturalization.
Undoubtedly, by the law of nations, an infant child partakes of his father’s nationality and domicil. But there are two difficulties in the way of applying this rule to the present case. In the first place, a parent’s nationality cannot, especially when produced by naturalization, be presumed to be adhered to after a residence in the country of origin for so long a period as in the present case. In the second place, the rule as to children only applies to minors, since when the child becomes of age he is required to elect between the country of his residence and the country of his alleged technical allegiance. Of this election two incidents are to be observed; when once made it is final, and it requires no formal act, but may be inferred from the conduct of the party from whom the election is required.
Applying these tests to the present case it can hardly be said that Mr. Robert Emden’s claim to be a citizen of the United States is, as a matter of international law, made out. The burden of proof is always on the applicant for the passport, and here there is no evidence to prove either his father’s non-abandonments of his United States citizenship or his own election of such citizenship, save the applications of father and son for passports.[Page 812]
In the foregoing remarks, the sections of the Revised Statutes bearing on questions of this class have not been considered. These sections are as follows:
Sec. 2172 [originally enacted April 14, 1802]. The children of persons who have been duly naturalized under any law of the, United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the States, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and 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. * * *
Sec. 1993 [originally passed April 9, 1866]. All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.
If reliance is placed on the first clause of section 2172, the application must fail, since that clause applies only to children “dwelling in the United States.” If, however, Mr. Emden seeks to come in under the second clause of section 2172, or under the more general terms of section 1993, he is met with the difficulty that he is no longer a “child,” but that he is of full age, and that his citizenship is no longer derivative, but is a matter of personal election, If he solemnly elected, on arriving at full age, to be a citizen of the United States, the proofs of such election must be produced. If, on the other hand, he made no such election, but by remaining in Switzerland is to be inferred to have accepted Swiss nationality, he cannot now obtain a passport as a citizen of the United States, If this be the case, his proper course, should he desire to become a citizen of the United States, is to come here in person and become naturalized.
In accordance with these views, you are, therefore, requested to decline to issue a passport to Mr. Robert Emden.
I am, &c.,