My action in this case is in accordance with my understanding of the views of
the Department, gathered from instructions to myself and from the Digest,
and I would be glad to be informed if I am in error, as I have an intimation
of a future application in which the circumstances of the applicant are not
unlike those of Mr. Oliver.
[Inclosure in No. 184.]
Mr. Lincoln to Mr.
Sherman.
Legation of the United States,
London, February 14,
1890.
Sir: I have to acknowledge the receipt of your
letter of the 11th instant, returning the application of Mr. Samuel B.
Oliver for a passport with further information transmitted by you.
[Page 324]
From the application and the additional information in your letter, it
appears that the applicant, the son of a native American residing in
Liverpool and registered at the United States consulate there as a
citizen of the United States, was born in New Orleans, La., August 14,
1855, left the United States when “a mere child,” and has never been
domiciled there since. For the past 16 years he has been in business in
Brazil, and has been in the United States as a visitor only, the only
occasion mentioned being a visit which ended in July 17, 1889. He holds
passport No. 71, issued by the United States consul at Rio de Janerio,
October 9, 1878. He has recently temporarily sojourned in Liverpool,
having no occupation, and has now gone to seek business in Portugal. It
is stated that, “although hoping and in bending ultimately to reside in
the United States, the time for, his return thither can not be stated
even approximately.”
A part of the above statement is derived from your letter used as a
supplement to the incompletely-filled-up application for a passport
presented through you by Mr. Oliver.
There is no doubt that the applicant, being a citizen of the United
States by birth, would, if personally subject to their jurisdiction, be
entitled to all the rights and privileges of such citizenship; but,
assuming as I must, that he has presented all the controlling facts
favorable to his application which he wishes to have considered, it is
my opinion that Mr. Oliver is within the class of citizens who, in the
view of the Department of State, are not entitled to claim the
protection of our Government as a right. In such cases it is held that
it is always a matter of discretion, in each individual case, as to
whether or not a passport shall be issued. In exercising this discretion
it is, of course, my duty to apply the principles of the known
instructions of the Department in similar cases, though it is impossible
to find one case identical with another in all the circumstances which
should be considered.
Mr. Oliver is now nearly 35 years of age, and, having lost his domicile
in the United States when a child, has not sought to regain it in the 14
years which have passed since he reached manhood, more than all of which
he has spent in Brazil; and now, when he finds himself without
occupation, he does not seek it within the jurisdiction of the
Government whose protection he asks, but does so in Portugal. It is not
suggested that he has property interests in the United States, or that
he has ever performed any duty of an American citizen, or that,
excepting on one temporary visit, he has ever permitted himself to be
subject to the enforcement of such performance. The indication of a
purpose to return and assume such duties is so vague that, while it may
not be equivalent to the expression of a purpose never to do so, it
seems to me to be equivalent to the absence of any such bona fide
intention. Under these circumstances, the language of a former
distinguished Secretary of State, Mr. Fish, is very apt:
“Citizenship involves duties and obligations, as well as rights. The
correlative right of protection by the Government may be waived or lost
by long-continued avoidance, and silent withdrawal from the performance,
of the duties of citizenship as well as by open renunciation.”
I think, therefore, that under the above and other decisions of the
Department of State the exercise of my official discretion to issue the
passport requested by Mr. Oliver would be of such doubtful propriety
that I must decline to do so and leave Mr. Oliver to apply directly, or
through this legation if he so desires, to the Department of State, by
which any error of judgment committed by me in the premises may be
corrected.
I return herewith the postal order for 4s. 2d. you sent me.
I am, etc.,
