No. 440.
Mr. Winchester to Mr. Bayard.

No. 66.]

Sir: Your dispatch No. 52, of the 9th instant, in regard to the issuing of passports to suspected Mormon emissaries, is received.

The circular to which you refer, issued by the Department of State, August 9, 1879, had been carefully examined previous to the writing of my dispatch of the 25th ultimo.

The circular instructed the diplomatic agents to secure from the respective Governments to which they were accredited “such steps as might be compatible with their laws and usages to check the criminal enterprises of Mormon agents and prevent the departure of persons proposing to violate our laws.” It contained no expression as to the right, or the conditions under which it could be exercised, to refuse a passport to one engaged in this unlawful business, even if he was an American citizen. It is true, as intimated by you, that it would seem inconsistent to extend the protection of the Government to a person who is denounced by the circular as pursuing a “criminal enterprise;” and it was for this reason that some specific instruction was desired, not so much as to refusing a passport to “persons who are undoubtedly Mormon emissaries,” but what would be a sufficient warrant for doing so to suspects. This inquiry was suggested by cases occurring at this legation. It is a matter of common repute that there is a Mormon mission in Berne, and the recruits are sent principally to the United States.

Polygamy is a crime under Swiss law as much as it is under our laws. Its practice is not attempted here. The presence, however, of agents [Page 851] from foreign colonies, stealthily and with some success, plying their wicked and illegal mission, is generally conceded. The Swiss Government, federal and cantonal, have expressed and evinced, by penal legislation and otherwise, a desire, as far as practicable, to suppress this evil. It is difficult, if not impossible, to act with entire effectiveness relative to persons leaving a country and to discover their motives, or to interpose legal restraints on emigration, based merely upon questions of morality and religion. These agents, knowing they are under the ban of the law, pursue their work very clandestinely, and are careful not to commit any overt act which is a breach of the law of Switzerland. To this extent they are under the surveillance of the police authorities. Further, these officers have no interest, and cannot be expected to do detective service in behalf of a foreign power unless specially assigned to do so.

You say, “it would be well to have the fact of the applicant for the passport being a Mormon emissary and actually engaged in proselyting, conclusively proved to your satisfaction by some kind of evidence which can be put on the files of your legation and this Department.” If this is the limit of discretion to be exercised it will not avail anything. As above stated, these men are too shrewd to furnish any positive proof obtainable by the common and ordinary channels. This legation was thoroughly satisfied that several persons, alluded to in my dispatch of May 25, were Mormon agents from the United States, here for the purpose of securing recruits, but the fact was not manifested by any “evidence which could have been placed on the files.” The inference was irresistibly forced by many circumstances drawn out in the course of conversation, even their very manner and appearance contributing to a conviction as to their character, strong and overwhelming as circumstantial evidence only can furnish, yet not capable of being formulated into a specific indictment. It was this which induced me to submit the inquiry as to the right to act in all such cases, even in the absence of satisfactory evidence, in its legal sense, but satisfactory in establishing a strong and reasonable suspicion. To do so would be simply applying to the issue of a passport the same rule of action that obtains as to the request for the intervention of a diplomatic agent for the protection of the Government. Neither are absolute rights. Both may be much modified by the conduct of the citizen, who may be estopped to claim either by his own conduct. The right to a passport, I take it, like the right to protection, is not always correlative with the fact of citizenship. The request in both instances should be listened to with attention, and the diplomatic agent authorized to act in each case from his best judgtment, having an equal regard for the rights of the Government and the citizen.

I am, &c.,