No. 673.
Mr. Winchester to Mr. Bayard.

No. 153.]

Sir: Mr. Henry Edward Kern, through the United States consul at St. Galle, has applied to this legation for a passport. The application as filed by him shows that he arrived in New York May 21, 1873, and [Page 1069] received his certificate of naturalization in Philadelphia October 23, 1877, having resided in the United States only four years and five months preceding his admission, instead of five years, as required by section 2170, Revised Statutes.

It is true that a certificate of naturalization is a judicial act, and, as stated by the President in his message, there is no statutory provision by which even a fraudulent decree of naturalization can be canceled; but it certainly rests in the discretion of the Government to extend its protection to persons who have improperly obtained certificates of naturalization. Under existing laws, if the formalities attending the acquisition of citizenship be evaded or disregarded, the Government is left no remedy but to decline attesting the nationality of such persons in the form of passports. I am free to say, from the high testimonial of character presented by Mr. Kern, that, in my opinion, there was no fraud on his part in obtaining the certificate of naturalization; that at the time of applying for the same he was urged to do so by the officials of the Fairmount Park, Philadelphia, where he was employed, being informed that two years having expired since his declaration of intention to become a citizen, he was entitled to take out his second or final papers of citizenship, and no inquiry was made or statement required by the court from him as to a five-years’ residence in the United States. The following year Mr. Kern was sent abroad by the commissioners of the park, to establish connections with horticultural and botanical gardens, and is now engaged in the nursery business in Switzerland, but declares his intention to return to the United States so soon as he can dispose of his property. The United States consul at St. Galle speaks in the highest terms of Mr. Kern, of his entire confidence in Mr. Kern’s loyalty to the duties and responsibilities of his American citizenship, and the good faith of his intention to return and assume these duties. However, under the circumstances of Mr. Kern’s insufficient residence in the United States to have entitled him to acquire citizenship in 1877, I have preferred to submit the question to the better judgment of the Department. Mr. Kern holds a certificate of naturalization, in due form and properly authenticated, from the court of quarter sessions, Philadelphia, dated October 23, 1877.

I am, etc.,

Boyd Winchester.