No. 662.
Mr. Winchester to Mr. Bayard.

No. 89.]

Sir: The police authority of many cantons, notably that of Basle, require that citizens of the United States, residing’ or established there, should renew their passports every two years. The consuls to whom the applications are made for renewals have not felt authorized to demur or advise the applicant to decline complying with the police order, doubting the propriety or even the right to do either, under their instructions relating to passports, when read in the light of the provisions of the treaty between Switzerland and the United States, covering the rights and obligations of the citizens of the one country domiciled in the other. Therefore the applications for renewals of passports at the expiration of two years, in every instance probably induced by police notice that it was necessary, have been forwarded to the legation, without any protest from the consul or the applicant, and under these circumstances the legation could do nothing but issue a new passport, whenever the party was found to be entitled to one. But at a recent social gathering in my house of our consuls in Switzerland the question was discussed. Much diversity of opinion existed, and a unanimous desire expressed that some uniform and established understanding should be reached. To this end I desire to submit the matter to the Department of State. It is true the question was referred to the Department in 1878, but the instruction then given was not sufficiently definite to justify my then predecessor to advise the consuls as to any specific course to pursue or in any respect modify or better the situation.

It is well to understand that all foreigners who desire to remain in one locality in Switzerland any length of time must produce and deposit with the police of the place of residence some properly authenticated evidence of citizenship. This is exacted of Swiss citizens going from one canton or commune to another, and it is a local registration which is closely watched and rigidly enforced.

The treaty of 1850, Article IV, provides:

In order to establish their character as citizens of the United States of America * * * persons shall be bearers of passports, or of other papers in due form, certifying their nationality, as well as that of their family, furnished or authenticated by a diplomatic or consular agent.

The practice, as the archives show, has been and continues to be, to resort exclusively to the one evidence of citizenship specifically named, to wit, a passport, and no attempt appears to have been made to utilize the right guaranteed under the alternative of “or of other papers, etc.,” embracing, it is presumed, certificates of naturalization, which certainly “certify nationality” in as solemn and authoritative a manner as a passport, neither being conclusive, but merely prima facie evidence. Pass [Page 1055] ports being by precedent the acknowledged evidence of citizenship received by the police authority of Switzerland from citizens of the United States established here, and as before stated the obligation of satisfactorily proving citizenship being imposed impartially upon all foreigners, even including their own people, it remains to inquire whether the police authority can place any restriction on the period for which the ‘passport shall be available for the purpose indicated, or should they be required to recognize its validity for that purpose for an indefinite period. The contention of the police authority has not been without support from United States agents in Switzerland, and in all probability found its origin in some official utterance from that quarter. In 1876, the United States consul at Basle announced that the law required the passports of all United States citizens residing there to be renewed every two years, and requested the police to see that it was done. The legation held the action of the consul to be unsustained by the law, and subsequently, in 1878, referred the matter to the Department of State, and by dispatch No. 70, December 1878, was instructed that by articles 1 and 5 of the treaty of 1850, citizens of the United States had the right to “sojourn temporarily, domiciliate or establish themselves in the cantons of the Swiss Confederation,” and that the only condition attached to the reciprocal privileges named in the two said articles is that they shall obey the laws, regulations, and usages of the country in which they are thus residing, and that the object of the stipulations is to secure for United States citizens similar privileges as are accorded to Swiss citizens in the United States. The dispatch then closes with the declaration that the regulation that a visa will not be attached to any passport after two years from its date concerns only the United States Government for its own convenience, and is a subject in regard to which the authorities of Switzerland have nothing to say. Under this instruction the legation held that it was neither proper for the legation nor any consular officer to decide, in advance of action on the part of the Swiss authorities, what consideration should be shown by the latter to a passport over two years old, except in reply to its genuineness. With all respect to the Department, I beg to submit that its instruction did not reach the gravamen of the question—the duty of a diplomatic or consular agent, when a United States citizen appears before him, coerced by a notice from the police, with a passport that is over two years old, and desires to know if he can compel the police to accept it as proper evidence of his citizenship.

It leaves the question, as it were, in a “pocket.” The issue can not well be made with the Swiss authority, for between him stands the agent, of the United States, embarrassed, if not precluded, by the fact that, if he advises the issue to be made, he practically advises the holder of the passport that it is still in full force and effect, and disregards his instruction that it “is good for two years from its date and no longer.” If he conceives it to be his duty to advise the person that his passport, in contemplation of law, no longer has any existence, and must be renewed, then the police authority considers itself sustained. It is from this dilemma the consular officer desires to be relieved. Whenever a United States citizen residing here, summoned by a policeman, appears at the consulate or legation to make inquiry if his passport, which has long since passed the two years’ limit, retains its vitality for evidencing nationality and citizenship required for purposes of residence here, and, it may be, complains that to be subjected to a biennial tax of $5 is a hardship, and one not imposed on citizens of other countries, the United States diplomatic or consular agent on the one hand finds an official [Page 1056] statement from the Department that the question of the limit placed on a passport is a matter that merely exists and applies as between the holder of the passport and the Government that issued it, and of which no other person can rightfully take notice, and, on the other hand, as the agent of the Government that issued the passport and his sworn duty to see that its laws and regulations, so far as entrusted to him, are in good faith complied with, he is confronted with the emphatic instruction that “a passport is good for two years from its date, and no longer,” and then, as to indicate the duty of the agent, it is said “a new passport may, however, be issued in its place by the proper authority, as hereinbefore provided, if desired by the holder.” The diplomatic or consular agent, reading this, very naturally feels estopped from giving an official sanction to the claim that it still survives for the paramount purpose of attesting the citizenship of the holder, if he does not feel constrained to go further and inform his fellow-citizen that his passport is no longer available for any purpose, and he should apply for a new one. In fact, does not the diplomatic and consular instructions by implication, if not totidem verbis, not only prohibit a visa being attached to a passport after two years from its issue, but also carry with it the correlative duty to warn the holder that it has expired by virtue of law, and should be renewed? If this be true, how is it possible to insist that it can, under any conditions, subserve the very highest function with which it is clothed? The opinion of the Department contained in the dispatch alluded to of December, 1878, asserting that perfect reciprocal privileges were sought to be established by the treaty, must be taken in connection with the clause in Article I, which limits the reciprocity to a point where it “shall not conflict with the constitutional or legal provisions, as well Federal as State and cantonal, of the contracting parties.” The United States and the several States recognize every Sweitzer who goes there, so long as he remains, as practically a citizen. He goes in and out every where unchallenged. But under the cantonal and communal laws of Switzerland it is different. Every foreigner, even to enjoy a permis de séjour, must deposit properly authenticated evidence of his citizenship, or he is invited to proceed on his way. Article IY contemplates this contingency, and prescribes in what form this evidence shall be furnished. If it rested here there would be no difficulty, but a regulation as binding on the agent as the treaty provision follows, and forbids him to give official indorsement to a passport after two years. The order is positive and makes no exception, but declares substantially that after two years it is no longer in esse. It has lost its character and value as a passport; it has run the period of existence accorded to it, and is as valueless and lifeless as any other document given for a specific period when that period has passed. The Government has chosen a certain form for attesting the nationality of its citizen which on its face declares him to be a citizen and invokes in his behalf all lawful aid and protection. It then instructs its agents that its sign manual, as it were, is good for only two years. Can its agent claim that it is good beyond that period for any purpose? And under Article IV of the treaty, is it not the right of the Swiss police authority to demand that a United States citizen residing here shall produce and deposit such evidence of his citizenship as will command the recognition of the Government that issued it, and not one which is denounced by that Government as lapsed and no longer good 1 This position would not only possess the virtue of consistency, but it would afford an opportunity of a biennial inspection of passports, and discovering those fraudulently obtained or improperly held. The large [Page 1057] majority of passports held by United States citizens established abroad are nearer a score than two years old, declaring the citizenship and asking the protection of persons who have forfeited all right to enjoy this high privilege.

The two years’ limitation must have had some substantial purpose in view. It must mean a renewal every two years or its absolute extinguishment.

I am, etc.,

Boyd Winchester.