Mr. Coombs to Mr. Gresham.

No. 98.]

Sir: I have the honor to submit to you my decision in the matter of the application of Alexander Powers and Basil Powers for citizens’ passports. As will be seen, I have issued a passport to Philip H. Powers, the father of Alexander and Basil, and the same includes his minor son Basil and two other minor children.

Whether my conclusions are correct or not, I have pursued the investigation into the facts as thoroughly as possible and have faithfully considered the law in order to arrive at a just conclusion. I must admit that the position of the minor child, Basil, has impressed me with doubts; yet under the rule such doubts would warrant me in refusing his application pending your instruction. It may be impossible to convey to you accurately all of the facts outside of the record, by which I am privileged to measure the motives of the applicants and upon which I am called to apply the rule of discretion as laid down in the many instructions from the Department of State.

I herewith inclose, as a record in the case, copies of certain papers, and I have the honor to refer you to them as containing the facts. Mr. John Walsh, of the firm of Walsh, Hall & Co., of Yokohama and Kobe, and at one time U. S. consul at Nagasaki, Japan, an American highly esteemed in this country, acting upon a letter (inclosure 5) from Philip H. Powers, called upon me with reference to the matter. I mention this fact for the reason that in my discussion of the question I often draw conclusions of facts which, perhaps, might not be warranted by the records, but which, to my mind, are clearly inferential from his conversation with me.

It may be well to consider the law of Russia, as it unquestionably has a bearing upon this case. I quote as follows: “Children born of foreigners not Russian subjects, born and educated in Russia, or, if born abroad, yet who have completed their education in a Russian upper or middle school, will be admitted to Russian allegiance, should they desire to do so, within the succeeding year after they shall have obtained their majority.” In this connection I have the honor to call your attention to the naturalization law of Russia of 1864, found on p. 1288, Foreign Relations of 1873, subdivision 12. The law, as it appears there, is different from my quotation in that it is made to appear in the [Page 394]law found in such report that the time of election of citizenship is “a year after they shall have obtained their majority,” and, of course, it would follow that at any time subsequent to the expiration of said year their right would remain unimpaired, other requirements having been fulfilled. In order to be certain in the matter I referred this construction to the Russian minister at this court, who informs me that there is a mistake in the translation, as it should appear that the right of election is only during the year immediately following the time of the person obtaining his majority, and if it is not availed of within that time he loses such rights of citizenship as he may have by reason of birth.

Alexander Powers was 21 years of age last August, and he may now take advantage of the same and become a Russian subject. Basil Powers, as will be seen from his application, will be 21 years of age May 3, 1894, and can then and within the year following elect to become a Russian subject by reason of birth.

The importance of the Russian law, as I have thought, consists in the fact that it confers upon them, equally with the law of our own country rights to be taken advantage of when they arrive at years of responsibility and practically at the same time. Under our law the child of an American citizen born abroad inherits the rights of citizenship from its father. I have, therefore, considered that they, in this case, owe a double allegiance, and that both countries simultaneously require that they should elect between the two.

Conceding that the law of Russia, as given in the Foreign Relations of 1873, is correct, then if they fail to elect the United States, when they are required so to do, it evidences an intention to elect Russia when their ability arises under the law and they are required so to do. But I shall consider these applications under the light of the law as translated at the Russian legation in Tokio, though, perhaps, the distinction as applied to this case is immaterial. It appears apparent that the Powers brothers have a dual capacity as citizens, or, rather, they have a double right to be exercised at option when they become of age. There can be no absolute rule embracing every possible condition, and it must be determined according to the circumstances of each individual case. The position of the father becomes an essential in this consideration and he will be termed an American citizen, giving to his children all the rights that they could inherit under the law. They are in a position where a decisive act must be necessary to avail themselves of the rights of inheritance under the law. In this case they say that “they intend to make their residence in the United States at some future day.” This declaration on the part of a person having established his citizenship might be sufficient. This declaration on the part a person electing between coexisting rights in two countries must be considered under the light of different rules and may be as evidencing a different intention. They say “that their permanent residence is in the United States.” This is intended as a conclusion of law and, I think, a wrong one. Their apparent purpose of life, so far as it can be ascertained, points to the selection of a residence, not in the United States, but in the country of their birth; to take up those duties of life and assume such functions as tend most to establish their identity with and fix their prospects in the latter country. Every circumstance of their past and present, every measurable prospect of their future, fixes their domicile in the country of their birth. They go back to Russia, not to continue in an old, but to engage in a new enterprise. This argues their intention more strongly than can any formal declaration.

In the case of Rudolph Nejedly, found in Mr. Blaine’s No. 110 to Mr. [Page 395]Grant, the statement of the applicant was that he intended to return to the United States “when circumstances would permit.”

It appears to me that the statement of the Powers “at some future day” as expressive of a purpose to select between two nationalities, is as indefinite as Nejedly’s, and especially as it is accompanied with the fact that they propose to fix a present residence in a country having an equal claim upon them for a purpose, measured by every standard of life calculated to make that residence permanent. If they owe a double allegiance to Russia and the United States in selecting between the two, they say to Russia “We shall now take up our residence within your domains and engage in business therein,” and to America “We shall make our residence with you at some future day,” it would appear that, for the ordinary purposes of life, their choice was in favor of Russia, and that their destiny would be cast in the latter country. If it is a matter of double allegiance it must cease sometime. It can only be solved in favor of the United States, after becoming of age, by their actions in such direction. Taking up business in Russia at a time when they are called upon to make an election is an act looking toward the adoption of the latter country. There are certain kinds of business conveying the idea of a temporary interest and a temporary residence in the location selected; but generally it means an identity with the welfare, the progress, and the government of such country.

I recognize that the status of American citizens abroad engaged in mercantile pursuits should be preserved when the same does not do violence to all other considerations. At times such business is immediately connected with the prosperity of his country and the expansion of its commerce, under some circumstances the indefinite avoidance of the obligations of a citizen does not work a forfeiture of his rights. These cases have come within the consideration of the Department but they do not bear upon the present question. In Mr. Blaine’s No. 330 to Mr. Phelps, with reference to the application of Mrs. Cadmus for passports for her minor children, he took occasion to say: “I am disposed to instruct you to grant her a passport at this time, that the right of her sons to elect American citizenship, on their majority, may be preserved unimpaired. As they come of age, however, and separate passports become necessary to them, their right thereto must be determined independently and upon their own merits.”

It seems that the case of Alexander Powers falls within this rule, and his right to a passport “must be determined independently and upon his own merits.” Under such a rule he can not elect American citizenship by the declaration of a future remote intention accompanied by acts taken most strongly against it. Mr. Blaine again observes, in his No. 76 to Mr. Reid, in effect, that passports must be confined to those who at the time they apply for the protection of the Government are its loyal citizens, bearing, in the language of the oath they are required to take, “true faith and allegiance to the same.” It can not be said of a man born in Russia, of a Russian mother, educated in Russia, speaking its language fluently, not speaking or understanding English, never having seen America, that he bears “true faith and allegiance,” whose intention of settlement is as undefined as the future, and who seeks the territory of his birth for the pursuit of those plans which call for the best energies of his life and forge every bond of interest in such country.

In the concluding language of Mr. Adee, Acting Secretary of State to Mr. Lincoln, p. 461, “Foreign Relations” of 1889, the doctrine is cited that a person with a dual status must elect upon obtaining his majority. [Page 396]The intention to elect the United States is not only not apparent on the part of Mr. Powers, but is negatived by every circumstance of his life. The same doctrine seems to obtain in the Yignaud case, p. 543, “Foreign Relations” of 1888, and in the case of Straus.

In most of these cases the father was a naturalized citizen, and while there are greater presumptions against a naturalized citizen returning to land of his adoption, yet when the right of citizenship is preserved to the naturalized father the status of the child is controlled by the same rules as in the present case.

On page 12, “Foreign Relations” of 1886, Mr. Bayard observes: “An election in case of a doubtful or dual allegiance must be made upon obtaining majority or shortly afterwards, and must be signified by acts plainly expressive of intention, such as immediate intentions to return to the elected country.” The case of Ernest Labrone, p. 304 of the same, seems to be determined on like ground. In the very able review of Mr. Fish, Secretary of State, Wharton, vol. 2, pp. 362 to 367, inclusive, although dealing with a case stronger against the applicant, indicates a policy which would clearly place the applicants beyond the rule which sanctions the issuance of passports.

Without further quotations from the authorities contained in the reports from the Department of State, suffice it to say that while I have found no case exactly parallel yet they are uniform in the construction of the law and, it appears to me, applicable to the case of Alexander Powers. The position of the minor child, Basil Powers, is more doubtful and I have come to the conclusion with less satisfaction. As a preliminary it is well to consider the language of Mr. Smithers. He says: “I suggested to the father that he should apply himself for a passport to include his minor son, but he states that the youth is going to Vladivostock to reside while his residence will be at another place.”

Under the ordinary rule it would appear that the boy inheriting, through his father, the rights of citizenship, was entitled to be protected as such, that such rights should be preserved until he became of age. This is the view I should take of it if his passport had been applied for by his father, as will hereafter appear. I think the passport for a minor is generally upon that assumption. There may be unavoidable circumstances requiring separate passports, but they are not upon the theory of an independent life and distant residence, when applied to a person entitled to the rights of citizenship, and by reason of his father’s status. His application placed him in a position where it is hardly possible to consider his rights arising from his relation and association with his father, but to consider the question of his established allegiance to the United States by reason of his inheritance and his acts. It is to be observed that he is now applying as a free agent, out of the protection and control of his father, with motives of furthering his own interests in Russia and, as it appears to me from the knowledge I have been able to gain, avowedly with the purpose of making Russia his home and the field of his permanent business aspirations. He is to engage as a clerk under Russian employers. He understands English a little better than his brother, yet hardly enough to be of use to him. He has never been in America and it can not be assumed that he has strong and influencing affections for that country. He will be of age in less than fourteen months; and his business ties in Russia if successful, as he must hope and expect they will be, will fix his residence there beyond that time. As far as I am able to conclude, he does not intend to give up those relations, upon [Page 397]becoming of age, for the purpose of electing the United States as his country. In fact he is not now evidencing those inclinations towards allegiance which the United States expects from those who ask for her protection.

Born upon Russian soil, living within her territory all of his life, having no interests within the United States, never having seen that country, with no strong ties of affection for it, it requires some strong affirmative act showing a fixed purpose for the future, inconsistent with Russian allegiance, in order to create the assumption in favor of electing American citizenship.

It may be true that he desires to become an American citizen. A desire is not always sufficient. Every benefit derived from citizenship has its corresponding obligation. A simple desire should not be permitted to acquire the benefit without satisfying the obligation. I may say that in both cases the primal conditions seem complete, yet the fulfillment thereof is lacking upon which to base their claims for passports, and I shall deny their applications until such time as the Department may properly consider them, and each of them, with reference to the law and the facts. As will be seen (inclosures 6 and 7), I have issued a passport to Philip H. Powers, including his minor son, Basil. This might appear inconsistent with the reasons for refusing his independent application, yet it has appeared to me that the reasons operating against him in the first instance might be properly construed as operating in his favor in the second instance.

While the passports answer for the same purpose, practically, they are granted upon different grounds. The refusing of one and the granting of the other recognizes his dependence and his right only by reason thereof and is for the purpose of preserving that right during his minority. When he comes of age, within fifteen months, or within a reasonable time thereafter, the proper officer, at such time, must hold his rights to cease thereunder and he will be called upon to elect between the United States and Russia.

There appears to me a difference between recognizing him as a citizen of the United States for all purposes and all time in Russia and recognizing his right to become such upon obtaining majority and protecting him until then. It may be that I have made a distinction where a difference does not exist, but, in view of all the facts, it appeared to me proper.

All of the questions contained herein I have the honor to submit to you for instructions.

I have, etc.,

Frank L. Coombs.
[Inclosure 1 in No. 98.]

Mr. Smithers to Mr. Coombs.

Sir: I have the honor to inclose herewith the applications of Alexander and Basil Powers for passports. These young men are sons of Philip H. Powers, a citizen of the United States, who holds a citizen’s passport granted to him by the legation on May 20, 1892. Mr. Powers has resided for the most part in Russia for thirty years past, where he acted as the agent of Messrs. Walsh, Hall & Co., of this port. His two sons, who now apply for passports, were horn in Russia and have never been in the United States. I have made their applications conform to the above facts. I suggested to the father that he should apply himself for a passport to include his [Page 398]minor son, but be stated that the youth is going to Vladivostock to reside, while his residence will be at another place, and it is necessary for him to have a passport to obtain license to remain in the country.

Fees inclosed.

I have, etc.,

E. J. Smithers, Consul.
[Inclosure 2 in No. 98.]

native.

I, Alexander Powers, a native and legal citizen of the United States, hereby apply to the legation of the United States at Tokio for a passport for myself.

I solemnly swear that I was born at Sigil, Kamtchatka, in the Empire of Russia, on or about the 4th day of August, 1871; that my father is a native citizen of the United States; that my permanent residence in the United States is at Waterford, Conn.; that I follow the occupation of clerk, and am now sojourning at Kobe, Japan; that I intend to make my residence in the United States at some future day, with the purpose of residing and performing the duties of citizenship therein, and that I desire the passport for the purpose of business.

Alexander Powers.

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.

Alexander Powers.

Consulate of the United States at Hiogo, Japan.

Sworn to before me this 7th day of March, 1893.

E. J. Smithers, Consul.

Description of applicant.—Age, 21 years; stature, 5 feet, 11½ inches, English; forehead, high; eyes, dark gray; nose, medium; mouth, rather small; chin, small; hair, dark brown; complexion, florid; face, long.

Identification.

Kobe, March 7, 1893.

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

C. P. Hall, Kobe.
[Inclosure 3 in No. 98.]

native.

I, Basil Powers, a native and legal citizen of the United States, hereby apply to the legation of the United States at Tokio for a passport for myself.

I solemnly swear that I was born at Sigil, Kamtchatka, in the Empire of Russia, on or about the 3d day of May, 1873; that my father is a native citizen of the United States; that my permanent residence in the United States is at Waterford, Conn.; that I follow the occupation of clerk, and am now temporarily sojourning at Kobe, Japan; that I intend to make my residence in the United States at some future day, with the purpose of residing and performing the duties of citizenship therein, and that I desire the passport for the purpose of business.

Basil Powers.

[Page 399]

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 hear 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.

Basil Powers.

Consulate of the United States at Hiogo, Japan.

Sworn to before me this 7th day of March, 1893.

E. J. Smithers, Consul.

Description of applicant.—Age, 19 years; stature, 5 feet 9½ inches; forehead, rather high; eyes, dark; nose, medium; mouth, small; chin, oval; hair, dark brown; complexion, florid; face, medium.

Identification.

Kobe, March 7, 1893.

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

C. P. Hall, Kobe.
[Inclosure 4 in No. 98.]

Mr. Powers to Mr. Coombs.

Dear Sir: By advice of Mr. Smithers. U. S. consul at this port, I write you these few lines explaining who I am and my present condition.

I am a native American, born at Waterford, Conn., and still have a mother and brother living there and intend to return there with my children as soon as convenient to do so. I am at present in the employ of Messrs. Walsh, Hall & Co., and have served them since my first arrival in Japan. My children were born in Russian Siberia where I, at that time, resided as agent for Messrs. Walsh, Hall & Co. At present, business obliges me and my eldest son to travel a great deal and to do so, we are obliged to have a passport, or some recognition of who and what we are. My youngest son is, at present, clerk at Vladivostock and also requires some document to certify who he is.

I could have become a Russian subject, which would have been a great advantage to me in my business, but I have always felt a love for native country and always looked forward to the time when business circumstances would allow me to go home again.

It was the intention to send my youngest son, Basil, away on the 20th, but without any passport he can not possibly go. That would be a serious detention and probable loss to us in the future.

Hoping that you will kindly consider the matter and grant our request,

I remain, etc.,

Philip H. Powers.
[Inclosure 5 in No. 98.]

Mr. Powers to Mr. John G. Walsh.

Dear Sir: I wish to ask your kind assistance, if convenient for you to assist me. I applied through the American consul for a passport for my two boys, or for some document to allow them to travel in foreign countries, but the minister refused my application and wrote a letter to the consul and, in this letter, mentioned that I myself held a doubtful position.

I hold an American passport and also a certificate from the town clerk of my place of birth and the consul requests me to write to the minister at Tokyo explaining to him who and what I am and also asked me to write to you and ask your assistance in recognizing me.

[Page 400]

If you can do anything to help the matter along you will greatly oblige me, for the young son must have something to show who he is on arrival at Vladivostock and without which he may lose his position.

Hoping that you will excuse me for so much trouble,

I remain, etc.,

Philip H. Powers.
[Inclosure 6 in No. 98.]

Mr. Smithers to Mr. Coombs.

Sir: I have the honor to acknowledge the receipt of your telegram of yesterday’s elate, as follows: “Impossible to grant passport to Alexander Powers; can grant new passport to Philip Powers including minor son Basil, upon new application.”

In obedience to your decision I have to request a passport be issued to Philip H. Powers and his three minor children, the application for which is herewith inclosed in duplicate.

The passport referred to in the application issued to Mr. Powers in May, 1892, is also inclosed.

I have, etc.

E. J. Smithers.
[Inclosure 7 in No. 98.]

Mr. Coombs to Mr. Smithers.

Sir: The applications of Alexander Powers and Basil Powers for citizens’ passports were received, and, as you have been informed by telegraph, were denied. The application of Philip Powers to include Basil Powers and other minor children was granted and forwarded to you.

I understand the following to be the facts:

Alexander and Basil Powers were both born in the Empire of Russia, the former on the 4th day of August, 1871, and the latter on the 3d day of May, 1873. Alexander Powers is now of age; Basil Powers will be of age in May, 1894. They have both lived all their lives in Russia and now propose to go to Russian territory for the purpose of business. The father was a native citizen of the United States and their mother was a Russian lady. They have never been in the United States. The older speaks the Russian language well and does not speak English. The younger speaks Russian well and English imperfectly. The elder is engaged in business with his father in Russian territory. The younger is to engage with a Russian firm as clerk at another place in Russia.

The elder son has arrived at the age when under the law he is compelled to elect between Russia and the United States, and an election in favor of the United States, under the circumstances of his birth, education, and life, must be evidenced by going to the United States and assuming the obligations of citizenship within the near future. His present plans are inconsistent with that idea.

The younger son, by his separate application, places himself much upon the same footing. I think he should be required to avail himself of his privilege through his father, and have, therefore, included him in a passport, as a minor, with his father. It must be observed that this is to preserve his right of electing, when he arrives at age, and upon the happening of that event he will be called upon, as his brother now is, to elect the United States by going there to assume the obligations pf citizenship or to lose his rights under and by virtue of such passport. I am, sir, etc.,

Frank L. Coombs.