Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890

Mr. Blaine to Mr. Grant.

Department of State,
Washington, March 25, 1890.

No. 51.]

Sir: Your dispatch, No. 63, of the 24th ultimo, has been received.

You therein present certain general considerations touching the circumstances under which naturalized citizens of the United States frequently return to, and reside in, Austria-Hungary, and you further state the case of one Bela Washington Fornét, an applicant for a passport. You thereupon ask general and special instructions.

Your recital of the political and business advantages which accrue in Austria-Hungary to a native thereof, by reason of a change of his allegiance in youth and return to his native place there to enjoy exemption from the burdens and duties which bear upon his former associates, is, of itself, sufficient to justify the caution with which the question of alien protection should be treated in such cases, and throws light on the observed tendency in Austria-Hungary to restrict the rights of domicile of such persons.

In view of the frequent applications for passports made to you by persons so situated, and generally by American citizens whose stay abroad is indeterminate, you formulate six points upon which you ask the views of the Department:

(1) For how many years may a citizen of the United States reside abroad without losing his American domicile?

(2) Would any limit of time in this regard apply to native as well as naturalized citizens, or only to the latter?

(3) Applicants for passports being required to state under oath the time within which they intend returning to the United States, what is the longest period of time they may fix?

(4) If an applicant refuses to swear that he will return to the United States within a fixed time, should a passport be refused him?

(5) Does the limit of time referred to in questions 3 and 4 apply equally to native-born and naturalized citizens?

(6) If application is made to you for the renewal of a passport, and it appears on examination that the time has expired within which the bearer of the old passport stated his purpose of returning to the United States, and that, nevertheless, he has not been to America to resume the duties of citizenship, should a renewal of his passport be declined?

In reply to your first question, I have to say that there is no fixed term of foreign residence by which the loss of American domicile is decided. The domicile of a person depends upon his intention, which is to be determined upon all the facts in the case. In the determination of this question no distinction is made between native and naturalized citizens, but the comparative periods of residence in this and in foreign countries are to be considered in arriving at the real intention of the individual.

This observation answers your second question.

From what has been said, it results that the Department is unable to fix a certain and constant period within which a person must return to the United States. This answers your third and fourth questions, and the reply made to your second question applies also to your fifth.

In answer to your sixth question, I have to say that where, in his application for a passport, a person makes oath that he intends to return to the United States within a certain time, and afterwards, when he applies for a renewal of his passport, it appears that he has not fulfilled that intention, this circumstance raises a doubt as to his real purposes and motives, which he may be called upon to dispel. The unfavorable presumption which he has by his own act created is not conclusive against him, but he should be asked for explanation.

As has been stated no distinction is made between native and naturalized citizens. But certain elements of fact may exist in the case of the latter which do not arise in the case of native citizens. For example, we will take the case of a native-born subject of a foreign power, who, having grown up under its protection and owing it allegiance, comes to the United States and immediately after acquiring naturalization returns to his country of origin to reside, claiming exemption from the burdens of its citizenship, but performing none of the duties of citizenship in the United States. To permit such a thing to be done for the purpose of evading the obligations of allegiance, would be to promote a fraud under the guise of expatriation. To meet such a case we find that it has generally been provided in our treaties of naturalization that, where a citizen of one of the contracting parties, naturalized under the laws of the other, returns to his original country and resides there for two years, he may be held to have renounced his naturalization. The adverse presumption thus created may be rebutted. In deciding whether it has been, all the facts in the case must not be considered together, but these facts must be inconsistent with his resolve and his practical ability to return hither and fulfill the obligations of citizenship.

I gather from the tenor of your dispatch that the circumstance of the applicant being engaged in business in the country of his residence may have its influence in leading you to a conclusion. The fact may have importance, in opposite directions indeed, in connection with all the other facts. An American, whether by birth or naturalization, residing abroad, in representation of an American business, and keeping up an interested association with this country, is in a different case from an alien who returns, immediately after naturalization, to his native place, there to engage in a local calling and, it may be, marrying there and exhibiting every evidence of an intention to make his home among his kindred. In the latter instance it would require strong proof to countervail the prima facie presumption that his naturalization was obtained solely to enable him to dwell thereafter in his native land without subjection to the duties and burdens of native citizenship.

I now proceed to consider the special case of the application of Mr. Bela Washington Fornét, as presented by you. Born in New York July 19, 1857, of parents then naturalized citizens of the United States, he went abroad when only a little more than seven years old, and has remained out of this country for over twenty-five years. He would appear to have resided at Budapesth continuously for about nine years at least, or since the declaration he is stated to have made there before the mayor and the United States vice-consul, when about twenty-four years of age, of his purpose of retaining his American citizenship. He has, you add, apparently never before applied for a passport. His sworn application is consistent with these statements, adding nothing thereto except that he desires the passport “for the purpose of going to America,” but to what part of America is not stated. The old form is employed, and does not include the declaration, now required, of intention to return to the United States and fulfill the duties of citizenship.

Knowledge upon certain points might aid the Department in giving you more precise instructions in this case than are now practicable. It might be stated, for instance, whether his parents were originally subjects of Austria-Hungary, and whether they abandoned their domicile in the United States, although this is not essential in view of the fact, as would seem, that the Austro Hungarian Government makes no claim upon the applicant’s allegiance. If the circumstances of his return gave rise to an option of citizenship on his part after reaching majority, his right to do so would appear to have been acquiesced in by the Austro-Hungarian authorities. Information is also desirable upon the character of Mr. Fornét’s domicile at Budapesth, and touching the nature and effects of his contemplated visit to “America.”

If the facts point to his making Budapesth his permanent home, the presumption arising therefrom is not to be offset by a merely temporary visit to the United States, as to a foreign country. The essential thing is that his domiciliary status in Austria-Hungary shall not evidently conflict with any declared intent to make his home in the country from which he claims protection as a citizen.

A copy of the new form of application, of which copies are herewith inclosed, may be sent to M. Gerster, the vice-consul at Budapesth, with instructions to invite Mr. Fornét to fill it out in substitution of the one already filed with you. M. Gerster may, at the same time, be instructed to put to the applicant such inquiries as you may deem calculated to throw light on his actual status and intentions. If the result should satisfy you that the passport is not sought evasively, and that an honest and realizable purpose is manifest to make the United States his home and assume the duties of a good citizen, notwithstanding the adverse presumption raised by the facts so far as disclosed, you may issue him the passport.

I am, etc.,

James G. Blaine.

[Inclosure in No. 5.]

form of application for passport by a native citizen of the united states abroad.

No. —.

Issued, ——, 18—.

I, —— ——, a native and loyal citizen of the United States, hereby apply to the legation of the United States at —— for a passport for myself, accompanied by my wife, —— ——, and minor children, as follows: ——, born at —— on the —— day of ——, 18—, and —— ——.

I solemnly swear that I was born at ——, in the State of ——, on or about the —— day of ——, 18—; that my father is a —— citizen of the United States; that I am domiciled in the United States, my permanent residence being at ——, in the State of ——, where I follow the occupation of ——; that I left the United States on the —— day of ——, 18—, and am now temporarily sojourning at ——; that I am the bearer of passport No. ——, issued by ——, on the —— day of ——, 18—; that I intend to return to the United States within —— with the purpose of residing and performing the duties of citizenship therein; and that I desire the passport for the purpose of ——.

Oath of allegiance.

Further, I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

—— ——.

Legation of the United States at ——.

Sworn to before me this —— day of ——, 18—.

—— ——.

Description of applicant.

Age, — years; stature, — feet, — inches, Eng.; forehead, ——; eyes, ——; nose, ——; mouth, ——; chin, ——; hair, ——;.complexion, ——; face, ——.

Identification.

—— ——, 18—.

I hereby certify that I know the above-named —— —— personally, and know h— to be a native-born citizen of the United States, and that the facts stated in h— affidavit are true to the best of my knowledge and belief.

—— ——,
(Address of witness.) —— ——.

Note.—This form is to be filled out in duplicate, one copy being retained on the files of the legation and the other forwarded with the quarterly returns to the Department of State. It may be so filled out by the applicant, in which case no fee therefor is chargeable.