Mr. Winchester to Mr. Bayard.
Berne, November 4, 1885. (Received November 16.)
Sir: I have the honor respectfully to ask instructions in the following case:
Richard Greisser submits the following facts to this legation, upon which he desires “papers to establish his American citizenship,” which would be a passport.
His father emigrated from Germany to the United States in March, 1867, locating at Delaware, Ohio; there he married a lady from Balothal, Switzerland, in 1868, and in September, 1869, the petitioner was born. His father returned to Germany in 1870, and as far as known, had not “declared his intention to become a citizen.” He died soon after his return to Germany, and the mother and son shortly afterwards removed to her native place in Switzerland, where they have since that time and are now residing.
[Page 814]Mr. Greisser makes his claim of citizenship on the ground of being born in the United States.
The precedents and instructions bearing upon this case, so far as the limited library and the records of this legation furnish, are so unsatisfactory and conflicting that I have declined to do anything until specially instructed from the Department.
On the one hand, regardless of section 1994, Revised Statutes, and the fourteenth amendment to the Constitution, where the meaning may be embarrassed by the words “not subject to any foreign power,” and “subject to the jurisdiction thereof”, I find it held by the Attorney-General, in 1859, that “a free white person born in this country of foreign parents is a citizen of the United States,” and again, in 1862, “a child born in the United States of alien parents who have never been naturalized is, by fact of birth, a native-born citizen of the United States, and entitled to all the rights and privileges of citizenship.” This doctrine was distinctly announced by the Secretary of State, Mr. Fish, in 1873, and asserted with the sanction of the Department in a case very similar to this one, arising in Germany in 1882.
The weight of opinion seems to be, that where native-born children are removed from the United States while under parental control, and domiciled abroad with their parents, they have the right of election of citizenship on arriving at maturity; that it is a birthright, and cannot be divested without the consent of the party enjoying it.
On the other hand, I find the nationality by birth laid down as follows by Wharton, Conflict of Laws, section 10:
The children horn abroad of American citizens are regarded as citizens of the United States, with the right, on reaching full age, to elect one allegiance and repudiate the other; the same conditions apply to children born of foreigners in the United States.
This is substantially repeated in the inclosure from the Law Bureau of the State Department of elate May 4, 1885, which states—
That the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law.
It has also been intimated, if not expressly held, that there should be a personal subjection to the jurisdiction of the United States to complete and maintain this character of or claim of citizenship.
Young Greisser produces certificate of marriage of his parents, and certificate of his birth, properly authenticated, and doubtless the facts as stated by him are true. Shall this legation issue a passport to him?
I have, &c.,