Mr. Runyon to Mr. Olney.

No. 440.]

Sir: Referring to your instruction, No. 445, of the 14th of October last, also to a former instruction, No. 238, of March 11 last, on the same subject, the result of my investigation, made in accordance with the first-named instruction, is that the action of the Wurtemberg authorities which is called in question does not rest on any formal regulation or decree of the Wurtemberg Government, but, as appears from a statement from the minister of foreign affairs of that kingdom now before me (a copy of which is herewith inclosed), is due to the requirements of the penal code of Germany, under which it is submitted to a court to pass (judicially) upon the value of the proof in the cases in which the action in question takes place. The treaty between the United States and Wurtemberg provides that “citizens of Wurtemberg who have become or shall become naturalized citizens of the United States of America and shall have resided uninterruptedly in the United States five years shall be held by Wurtemberg to be American citizens, and shall be treated as such.”

The provision is, first, that the person shall have become naturalized, and, second, that he shall have resided uninterruptedly within the United States for five years; and, it may be observed that the provision is not for a residence of five years previous to naturalization, but for five years’ uninterrupted residence in the United States. A United States passport is evidence of citizenship, but it is silent on the subject of the five years’ uninterrupted residence. On this latter subject, which is a question of fact, the court, if the certificate of naturalization expressly states that the person naturalized had lived five years in the United States, regard it as sufficiently establishing the five years’ residence. But if, as is often the case, it does not expressly state it, then other proof is required. While it is true that in cases where the certificate of naturalization states, in general terms, compliance with the law of naturalization that may be equivalent to saying that (among other things) the party naturalized had lived in the United States five years, it is not necessarily so. But, apart from that, the court may not know the law of the United States on the subject, or if it does, may doubt that the certificate, even in view of that law, is sufficient proof of the five years’ uninterrupted residence. It is to be observed that it would appear that the courts do not refuse to give effect to the passport, but accept it as proof of citizenship unless there is reason to suspect fraud either in the naturalization or in the use made of the naturalization [Page 520] certificate; as, for example, where it is suspected that the person holding the certificate is not the person who was naturalized.

It is obvious that in view of the fact that the action in question is judicial and not under any formal regulation or decree of the Wurtemberg Government, and that it is conceded that the requirement of extraneous proof is proper in some cases, the remedy must be by a limitation or restriction of the judicial inquiry. It will not be out of place to remark that in Benick’s case, to which you refer (Foreign Relations, 1893, p. 23), Secretary Gresham, while admitting that the certificate of naturalization, in the exceptional cases to which he refers, is not conclusive, denies the right of ex parte municipal (in that case Austrian) action, but lays it down that it rests with the Government of the United States to certify the facts on request.

I have thought it my duty to take no action in the premises without your further direction, since your instruction to me as to my action beyond investigation was conditioned upon my finding that the action of the authorities rests on a formal regulation or decree of the Wurtemberg Government.

I have, etc.,

Theodore Runyon
[Inclosure in No. 440.—Translation.]

Minister of Foreign Affairs of Wurtemberg to Mr. Johnson.

Sir: Referring to your esteemed communication of the 5th ultimo, I beg to answer the question whether the courts and state’s attorneys may demand of a naturalized citizen of the United States, of Wurtemberg origin, aside from his passport, still other proof as to his five-year uninterrupted residence in America, in the meaning of the treaty between Wurtemberg and the United States of America, of July 27, 1868, and of the protocols of the same day, that this has not been regulated by special law or by any decree.

It is furthermore, according to the regulations of the penal code for the German Empire, a matter for the courts solely to pass on the value of the proof presented, and in the matter in hand it is for the courts to pass in individual cases upon the value of the proof of passports.

The royal ministry of justice is therefore not in a position to give to the courts or state’s attorneys any particular order in one direction or the other.

With distinguished consideration, etc.,

Minister for Foreign Affairs.