No. 400.
Mr. Bayard
to Mr. McLane.
Washington, July 20, 1888.
Sir: Your No. 631, of the 2d instant, has been received. In it you confirm your telegram of June 29, acknowledge the receipt of my reply thereto, and reiterate your desire to be permitted, in your discretion, to dispense with the production of certificates of naturalization by persons asserting themselves to be naturalized citizens of the United States and desiring to obtain passports from your legation.
In instruction No. 350 of June 30 last, the Department briefly stated the reasons why this discretion could not be extended; but in view of the earnest representations which you have made to the Department, it may be well to state my views more in detail.
You suggest that a discrimination is made, under the instructions recently given to you, between natives and naturalized citizens of the United States, or at least that applicants for passports may allege the existence of such a discrimination. The answer to this suggestion seems to me plain. The rule of proof applied to each class of “citizens is the same; and it is the well known legal rule, universally adopted, that in all cases the proof to be submitted of the existence of a fact must be the best proof of which the case is in its nature susceptible. In the case of native citizens of the United States, as there is no system in existence of individual registration, such as exists in some other countries, the best proof is by affidavit and personal identification to the satisfaction of the legation. But in the case of naturalized citizens additional and other facts essentially different must be established.
By the laws of the United States naturalization of a foreign-born person to be an American citizen is intrusted to the courts of record, both of the several States and of the United States. By the rules of evidence, as universally administered here, the record of such court can be proved either by an inspection of the records themselves or by a certified copy under the seal of the court; and such evidence is the conclusive and sole proof of the action of the court.
Whenever the question of citizenship is brought in issue within the United States the certified abstract from the record of the court is required to establish the fact of naturalization. In cases of loss or destruction of the original records an exception is made, but then the ground for the introduction of secondary evidence must be laid by proofs in the usual mode.
It is not perceived how a less stringent rule could properly be laid down for the guidance of the agents of the Government residing in foreign countries. The expediency of increased strictness is rather apparent, when the serious nature and consequences of the guarantees of national protection which are to accompany the issue of a passport are taken into consideration, At the present time, questions of allegiance and citizenship are undergoing unusually serious examination in Europe, especially in the provinces of Alsace and Lorraine, lately part of the territory of France, but in which German power is now maintained in consequence of cession under the duress of war. The obligations of the Government to its citizens are of the most far reaching nature, and the United States expect to perform their full duty in protecting their citizens abroad, but the fact of such citizenship must be [Page 553] established before our intervention can be appealed to. It is not competent for this Department to alter the law which makes naturalization the act of a judicial court of record, and for that reason to be proven like other records.
The hardships of the enforcement of the rule here insisted upon, and which is not, as you seem to suppose, of recent origin, are more apparent than real. The procurement of a certificate of naturalization under the seal of the court is easy and inexpensive, and duplicates can always be obtained before going abroad, or within a fortnight, by telegraphing, by any one now in Europe.
The instructions heretofore given (No. 343) have thus been reviewed in the light of your recent representations, and it is not perceived how this Department, consistently with public interests or duty, can dispense with the customary and reasonable proof of American naturalized citizenship.
The present time appears opportune to inform that portion of the public who propose in their residence in foreign countries to enjoy all the privileges of American citizenship, that at least they must establish their right to do so by the usual and easily-acquired proofs.
The special question you present, whether the last paragraph of section 120 of the printed personal instructions dispenses with the necessity of producing other proof of citizenship than a duly executed passport less than two years old, the renewal of which is applied for, has been anticipated by my instruction No. 358, of the 16th instant, which transmitted for your information copies of the Department’s correspondence with Mr. Twyeffort.
I am, etc.,