Mr. Coombs to Mr. Gresham.
Tokio, Japan, March 21, 1893. (Received April 22.)
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.,