Mr. Adee to Mr. Coombs.

No. 84.]

Sir: Your No. 98 of March 21st last, in regard to the applications for passports made in behalf of Alex. Powers, aged 21, and Basil Powers, a minor, has been considered.

The two applicants were born in Kamchatka, a Russian possession, their father, Philip H. Powers, being a native citizen of the United States. The boys appear never to have been in the United States, and to have passed much of their youth in Russia. Their native language would seem to be Russian, the elder speaking no English and the younger but imperfectly. At present, sojourning in Japan, it is their intention to reside in Russia for purposes of business and education. It is believed that you correctly give the Russian law of citizenship applicable to these two young men, as follows:

Children horn of foreigners, not Russian subjects, born and educated in Russia, 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 (attained) their majority.

This provision appears to be permissive, not compulsory, and to contemplate that persons born in Russia of alien parents, may, under certain specified circumstances, make election of Russian citizenship, and thereupon be admitted to such citizenship by some formal act of naturalization.

The precedents you have examined would seem to have led you into the misapprehension that the theory of dual allegiance during minority is involved, requiring formal option between two conflicting claims. This is, indeed, the case according to the municipal law of certain countries.

The French rule is typical, and under it “a person born in France of alien parents and domiciled in France at the time of reaching majority, is allowed one year after attaining majority to elect to retain the citizenship of his parents. In default of so doing at the expiration of that period, and if retaining French domicile, he is to be deemed a citizen of France.” (Foreign Relations, 1891, pp. 493, 494.)

The contrast between the two rules is clear. In France, upon the expiration of the probationary year following majority, the domiciled alien loses his right to elect the status of his parents. In Russia, as explained to you by the Russian minister, if the election of Russian citizenship be not availed of within the prescribed year, the person loses his right to become a Russian subject.

The law of the United States does not, as you seem to suppose, provide for option of American citizenship by persons situated as you represent the Powers brothers to be circumstanced. By section 1993 of the Revised Statutes the children born abroad to citizens of the United States “are declared to be citizens,” with the sole exception that such citizenship shall not descend to children whose fathers never resided in the United States. The precedents you quote contemplate recognition of a formal option, only in the cases where a conflict of laws arises under the legislation of the foreign country of birth and sojourn. In Russia, however, it appears that such conflict does not arise, and that in the event of not acquiring Russian status in the permitted way, the persons in question will be regarded after attaining majority as lawful citizens of the United States.

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Between the legal status of citizenship and the right to continued protection during indefinitely prolonged sojourn abroad, the executive authority of the United States draws a clear distinction in exercising its statutory discretion to issue passports as evidence of the right to protection. The relation of the citizen to the state being reciprocal, embracing the duties of the individual, no less than his rights, the essential thing to be determined is the good faith with which the obligations of citizenship are fulfilled.

The best evidence of the intention of the party to discharge the duties of a good citizen is to make the United States his home; the next best is to shape his plans as to indicate a tolerable certainty of his returning to the United States within a reasonable time. If the declared intent to return be conspicuously negatived by the circumstances of sojourn abroad a passport may be withheld.

Alexander Powers being now sui juris, his case is to be treated precisely as any other where the conduct of the applicant suggests a voluntary evasion of the obligations of American citizenship and abandonment of the conditions under which protection is properly to be granted.

Basil Powers, the younger brother, is now 19 years of age, and therefore under parental control. It appears that it is his father’s purpose to send him to Vladivostock for business purposes, thus involving his separate residence in Russia. If the facts in your knowledge indicate reasonable bona fides, there is no objection to your granting a passport to Basil during minority. On his attaining his majority his case will fall in the same category as that of his brother Alexander.

The status of the father, Philip H. Powers, is questionable as to the continuance of a bona fide claim to protection as a native-born citizen. He appears to have resided constantly in foreign parts for at least twenty-one years; how much longer is not stated. He merely alleges a vague purpose to return to the United States with his children “as soon as convenient to do so,” or “when business circumstances would allow.” More positive evidence of intention to return is certainly requisite; but the facts of his business employment abroad may importantly modify this aspect of his case if the firm he serves, Walsh, Hall & Co., of Osaka and Hiogo, be the foreign branch of a business concern having its headquarters in the United States.

I am, etc.,

Alyey A. Adee,
Acting Secretary.