Mr. Olney to Mr. Jackson.

No. 544.]

Sir: The late Mr. Runyon’s dispatch, No. 440, of the 24th of December last, in relation to the acceptance in Germany of certificates of naturalization and passports as proof of citizenship and of right to the treaty benefits stipulated in favor of naturalized citizens, has been carefully considered.

[Page 521]

In their most general form the propositions involved may be thus stated: That the rights of citizens of the United States abroad are qualified in certain particulars and to some extent by treaties of naturalization with several countries; that those treaties impose distinct conditions upon the recognition of the rights of a naturalized citizen, namely, that the fact of naturalization shall be established and that an uninterrupted residence of five years in the United States shall be shown; that these conjoining conditions are separable; that a passport is not, on its face, evidence of the fact of naturalization nor of the period during which the bearer may have resided in the United States; that while a passport held by a person known to have been originally a subject of another State may be constructive evidence that such alien bearer must have been naturalized in conformity with the laws of the United States, it does not conclusively or even inferentially prove that the bearer has been naturalized under that particular provision of our laws which prescribes five years’ residence prior to admission to citizenship; and that consequently a government with which the United States have a naturalization treaty containing a five years’ residence condition may rightly take such steps, judicially or otherwise, as will determine whether the holder of an American passport has fulfilled the several conditions prescribed by the treaty. Thus formulated, the propositions contained in Mr. Runyon’s dispatch appear to be covered.

While, as stated in the Department’s previous instructions, No. 238, of March 11, 1895, and No. 445 of October 14, 1895, the fact of naturalization in conformity with our laws implies, in the great majority of cases, a five years’ residence prior to admission to citizenship, the mere statement that the individual has been naturalized in conformity with the laws of the United States does not exclude the exceptional instances in which other statutory provisions are applicable, as, for example, the case of a minor child of alien birth coming to the United States during the father’s five years’ probationary term and becoming a citizen through the father’s subsequent naturalization; the case of a widow and minor children acquiring citizenship under section 2168 Revised Statutes, upon the death of the husband and father, he having declared intention to become a citizen; the case of discharged soldiers and certain classes of merchant seamen whose actual residence within the territory of the United States before naturalization may sometimes be less than five years, and the case of an alien woman marrying a citizen of the United States and becoming herself a citizen ipso facto.

In all these cases the fact of citizenship, both under the municipal law of the United States and international law, may be fully established and the right of such citizenship assertable; but the term of their residence in the United States may remain an unexpressed quantity, and even the treaty condition of naturalization may be opened to question if a nice distinction be attempted between the judicial act of naturalization by decree of a court, upon personal application, and the statutory acquisition of full citizenship through the citizenship of another, as in the cases of minor children, the widow of a declarant, or an alien woman marrying a citizen.

The diversity of the forms of naturalization certificates issued by the various courts of record in this country precludes uniform ascertainment of the period of an alien’s residence within the jurisdiction of the United States, even in those cases where the statute makes a five years’ residence a preliminary condition to admission to citizenship, and of course they furnish no basis whatever for ascertaining the total time during which an alien naturalized by a decree of court under the [Page 522] exceptional statutes above adverted to may have resided in the United States. So, too, the period of residence of a minor child or married woman of alien birth who becomes statutably invested with citizenship without formal decree of naturalization is not inferable from any statement now required to be of record in the usual course.

It would not, therefore, be feasible, under existing circumstances, for this Department to note upon a passport the time during which the bearer had lived in the United States prior or subsequently to acquiring citizenship. Further complexity is lent to the question by the circumstance to which Mr. Runyon’s dispatch adverted, that even where citizenship may have been acquired within less than five years’ residence in the United States, the circumstance is immaterial, provided the individual can show a total residence of five years in the United States, so that a person becoming a citizen in less than five years may, by residing in this country a sufficient time after acquiring citizenship, entirely meet the requirements of the treaty.

Whether it may be practicable by executive regulation to provide for ascertaining the duration of an applicant’s residence in the United States and inscribing that fact upon the passport by way of an independent certification may be a subject for consideration, as also may be the question whether greater uniformity in the certificates of naturalization issued by the various courts of this country, with express recital of the term of residence, might not suffice to meet the great majority of the cases liable to arise in Germany and other countries with which the United States have naturalization treaties.

In the absence, however, of disrespect to the passport itself, as prima facie evidence of citizenship, or of any apparent purpose on the part of the governments of Germany to question the fact of naturalization when duly certified to have been performed in accordance with the statutes of the United States, it may not be easy to dispute the claim of those States, under existing naturalization treaties, to ascertain by some separate process whether the conjoint requirement of those treaties in respect to residence has been fulfilled. We can not, of course, admit any impugnment whatever of the validity and sufficiency of a passport as a prima facie certification of the fact of lawful citizenship, nor could we acquiesce in any proceedings in determination of the residential condition which would impose undue hardship upon the individual or exact of him proof of statutory naturalization, for this latter is abundantly covered by this Government’s formal certification of the fact of lawful citzenship. We certainly could not question the competency of a German court to admit and pass upon proof of five years’ total residence in the United States in the case of those persons acquiring our citizenship in less time and as to whom this Government might not be able to certify to the duration of any other part of their period of residence than that which antedated naturalization, and if thus admissible, and in such a case even necessary as to a part of the five years, the claim as to the whole period can not readily be contestable.

The newspapers recently published a telegraphic item reporting a decision by the imperial supreme court in Saxony which appears to relate to the present subject. If not already done, you will report to the Department the facts and circumstances of that decision. In the meantime, or until otherwise instructed, you may suspend action upon the Department’s No. 238 and No. 445, unless it should appear that the courts go behind the passport as prima facie evidence of the fact of citizenship and require the bearer to prove naturalization. As stated [Page 523] in the instructions to the United States minister at Vienna, to which those dispatches refer, the attestation of citizenship contained in the passport can only be traversed by allegation of unlawful acquisition of citizenship, in which case it is the right and duty of the naturalizing Government to determine whether the party be or be not rightfully one of its citizens.

I am, etc.,

Richard Olney.