Mr. Lee to
Vienna , July 1, 1886. (Received July 17.)
Sir: I have the honor to request special instructions on the inclosed petition of Friedrich de Bourry to this legation for a passport as a native citizen of the United States.
In addition to the facts stated in the petition, * * * I may add as a part of the history of the case, that Mrs. de Bourry called upon me in [Page 8] her son’s name, to obtain a United States passport. I did not think then that the evidence was such as to entitle her son to a passport, and so told her; but told her to embody the facts in an affidavit and that I would forward it to the Department of State. * * *
There are some matters in the affidavit which vary somewhat from my recollection of my interview with Mrs. de Bourry—viz, she told me positively, in answer to cross-examination, that her husband, Colonel de Bourry, had never been naturalized, or given any notice of an intention to become naturalized, and that her son had steady employment on the railroad, and was afraid of being forced into the army.
The fear of his being obliged to serve in the army seemed to be her great anxiety at the time, and to have created a great urgency for a passport.
Addmitting as true everything stated in the inclosed affidavits, the case presents these difficulties: * * *
Section 1992, United States Revised Statutes, 1878, says:
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed are declared to be citizens of the United States.
The latter portion of section 131 of “Personal Instructions” reads: “That the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law;” which raises a presumption that the said de Bourry, being born of alien parents, citizens of Austria-Hungary, is not included in section 1992 of the Revised Statutes, unless to the extent implied in Dr. Wharton’s report to the Secretary of State, dated May 4, 1885, in his comment upon section 173 of the Consular Regulations, in which he says:
The correct rule I apprehend to be that the children born of parents domiciled in the United States partake of their father’s domicile, and that children born abroad of citizens of the United States partake of their father’s citizenship. The possession of these rights continues until the infant arrives at the age of twenty-one, at which age he is entitled to make election as to what nationality and what domicile ho will accept, which election must be regarded as final.
If so, it would then only become necessary to see if an election has been made.
* * * * * * *
It has seemed to me that Mr. de Bourry’s omission on attaining the age of twenty-one to make any effort to become identified as a citizen of the United States, his long and continuous residence in Austria-Hungary, the home of his parents, together with the seeking and obtaining employment of a permanent nature, constitute acts of election which may be considered final.
* * * * * * *
Admitting, however, that he would be entitled to a passport if the allegations in the petition were all proven to be true, it seems to me in such a case the most positive evidence should be adduced.
In that respect I consider the petition deficient, because, while the affidavit of the mother is positive enough, it is an unsafe precedent to accept as conclusive the uncorroborated testimony of an interested witness as to the only point which could give a right to citizenship viz, the accidental birth in New York.
The fact of baptism in New York of the child of a traveler, thirteen days after its alleged birth, hardly raises the presumption that the child was born in that city, and if it did, there exists no evidence proving the identity of the said Friedrich de Bourry with the person named in the [Page 9] certificate of baptism, which is now in his possession, and no proof whatever of the genuineness of said certificate.
For these reasons I declined to issue a passport in this case, without instructions to do so.
I have, &c.,