No. 3.
Mr. Lee to Mr. Bayard.

No. 192.]

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.,


To the Hon. James Fenner Lee,
United States Chargé Affaires ad interim, Vienna, Austria:

Your petitioner, Friedrich de Bourry, a resident of the city of Vienna, Empire of Austria, respectfully represents that he was born in the city of New York, State of New York, United States of America, on the 4th day of December, 1862, as the fruit of the intermarriage between his farther, Gotthilf de Bourry, and his mother, Angelica de Bourry, née Dragas, and that your petitioner was baptized by the Rev. Father Francis Klaholy on the 17th day of December, A. D. 1862, at said city of New York, as appears from the register of baptism kept at the church of Saint Alphons, New York. And your petitioner further represents that he remained in the said city of New York until he was five years of age, and then came to Europe with his mother; and that his father joined them in the city of Vienna in the year 1869, where he died in the year 1880, and that this petitioner has resided in the city of Vienna ever since the year 1869.

And your petitioner further represents that he is informed and believes that, at the time of the birth of your petitioner in the city of New York aforesaid, his father, Gotthilf de Bourry, was in the military service of the United States of America as a captain on the staff of General Blenker; and your petitioner further states, that his father subsequently served in the Army of the Union as colonel of the Sixty-fourth Regiment of Infantry of New York State Volunteers, to which position he was appointed by virtue of a commission issued by Horatio Seymour, then governor of the State of New York, under date of June 13, A. D. 1864, which commission is now in possession of your petitioner; but this petitioner is not informed whether or not his father, after being honorably discharged from the service of the United States, ever took the steps or filed the petition required under the law in order to obtain the rights and privileges of American citizenship.

And your petitioner further represents, that he has never in any manner forfeited the rights acquired by his birth in the United States of America, and has at no time assumed the duties or claimed the privileges of citizenship of any other country, and has never exercised the rights and privileges of a citizen or subject of any other country, and has not sworn allegiance to any king or potentate, but has always claimed to be and has regarded himself as an American citizen, and that he has always intended to return to the United States of America as soon as his means permitted it, and that he now intends to return to the United States of America as soon as possible, and intends to remain and reside there permanently.

Wherefore your petitioner respectfully prays that a passport may be issued to him by the United States legation at Vienna, recognizing his rights and his status as a native-born American citizen, as your petitioner will ever pray.


United States Consulate-General at Vienna, Austria, ss.:

Friedrich de Bourry, the above-named petitioner, being duly sworn, upon his oath deposeth and saith that he has signed the foregoing petition and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.

United States Consul-General.

United States Consulate-General at Vienna, Austria:

Angelica de Bourry, being duly sworn, upon her oath saith that she is the mother of Friedrich de Bourry, whose petition is hereunto annexed, and that she gave birth to said Friedrich de Bourry in the city of New York, State of New York, United States of America, on the 4th day of December, 1862, and that she has heard read the petition of her said son, Friedrich de Bourry, and knows the contents thereof, and that the same is true in substance and in fact.


United States Consul-General.