Mr. Uhl to Mr. Olney.

No. 135.]

Sir: I have the honor to inclose herewith, with a request for its ultimate return, one form of Paul Rosenheim’s application for a passport, together with letters, more particularly mentioned below, from Mr. W. J. Black, United States consul at Nuremberg, and other papers bearing upon the case, which, after some hesitation, I have concluded to submit to the Department, with the observation that in my opinion the passport should not issue, unless it shall be held as a rule of the Department that a minor son, born in Bavaria many years after the return of his father, also Bavarian born, who, having emigrated to the United States, resides there about eighteen years, during which time he remains an alien, then becomes naturalized, and in six months [Page 216] thereafter returns to the land of his nativity and there has his permanent domicile, as a retired gentleman, to the present time—more than twenty-nine years—is of right entitled to a passport upon application until he shall reach his majority.

The facts in the present case, as they are disclosed in the application and the accompanying papers from the consulate, are as follows:

The applicant, Paul Rosenheim, was born in Wurzburg, Bavaria, on June 7, 1878, has never been in the United States, and desires the passport to visit Holland in November next. The father of the applicant, Seligman Rosenheim, was likewise born in Bavaria, emigrated to the United States about the year 1849, and there resided until 1867, when he returned to Bavaria, which has since that time been his home. While living in America he continued an alien (a German subject) until the 8th day of October, 1866, when he became naturalized in the city of New York, and within six months thereafter took his departure for Germany. In view of his continued permanent residence abroad of nearly thirty years, it is very probable that he had contemplated and arranged for the same prior to the date of his naturalization, and it is not improbable that the naturalization itself was procured with a view to his early departure from the United States, without the intent of returning, that he might enjoy such benefits, privileges, and exemptions as American citizenship would confer while residing in Germany, rather than with a view of taking upon himself at any time its duties, burdens, and obligations within the United States. The consul reports that he is a man of means, living the life of a retired gentleman. He obtained a passport from the Department of State on April 18, 1867. It does not appear that he ever applied for a renewal thereof. He doubtless recognizes that he is not entitled to a passport, as the name of the minor son might be inserted in any that would issue to the father. The consul reports that shortly before the presentation of this application Paul Rosenheim made inquiry at the city hall at Wurzburg as to his obligation to perform military duty, and in this connection I beg to refer to your instruction No. 99, of June 30 last, and the letter of Isidor Rosenheim to the Department making inquiry as to the liability of Paul Rosenheim in that behalf.

Upon the facts stated, it is to my mind clear, and I think should so be held, that Seligman Rosenheim left the United States and renewed his residence in Bavaria without the intent to return to America.

The treaty with Bavaria, concluded May 26, 1868, provides (Article IV) that “if a Bavarian naturalized in America renews his residence in Bavaria without the intent to return to America, he shall be held to have renounced his naturalization in the United States,” and that “the intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.”

If Seligman Rosenheim did renew his residence in Bavaria in or about the year 1867 without the intent of returning—and, in my judgment, it should be so held—he thereby, under the treaty, renounced his naturalization in the United States, and all rights and privileges acquired there-under were surrendered, and the son Paul, born in Bavaria in 1878, long subsequent to such renunciation, has no rights as to American citizenship superior to those of his father.

Section 2172 of the Revised Statutes of the United States, 1878, provides:

The children of persons who have been duly naturalized under any law of the United States, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are or have been citizens of the [Page 217] United States shall, though horn out of the limits and jurisdiction of the United States, be considered as citizens thereof.

And section 1993 provides:

All children heretofore horn or hereafter horn out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States.

Mr. Secretary Fish (see Foreign Relations, 1878, Vol. II, p. 1191), in commenting upon this section as originally enacted in the law of February 10, 1855 (10 Stat, L., 604), remarks:

If born after the father has become the subject or citizen of another power, or after he has in any way expatriated himself, the children born abroad are to all intents and purposes aliens, and not entitled to protection from the United States. * * * It will be noticed that the act professes to extend citizenship only to those born abroad whose fathers at the time of their birth are citizens. * * * No sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto; nor can the municipal law of one state interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign state and without the jurisdiction of their own country. * * * The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father. The same principle on which such children are held by us to be citizens of the United States and to be subject to duties of this country applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizens and to subject them to duties to it.

The Ulmer case (see Mr. Bayard to Mr. Coleman, No. 387, December 4, 1888) was upon the facts not unlike the present. The father, however, who had returned to Bavaria and there remained, applied “for a passport as a citizen of the United States, to include his son,” born in Germany. The application was refused. Mr. Bayard, in disposing of the case, quotes from the treaty with Bavaria, and adds:

Upon the facts stated, the Department is of the opinion that Mr. Ulmer long since renounced his American citizenship, and that to grant a passport to him as now requested would be to promote an obvious abuse of our naturalization and to commit a breach of that fair dealing which should characterize the observance of treaty obligations.

It will be observed that in refusing the passport Mr. Bayard does not intimate that a separate application on behalf of the son would be granted. He places his decision upon the ground that Ulmer “long since renounced his American citizenship.”

My conclusion is that Seligman Rosenheim, having renounced his naturalization as an American citizen long prior to the birth of the applicant, the latter, being born in Germany, is a German subject, and not entitled to an American passport.

I shall be gratified if the decision of the Department shall reach me as early as November 1st, that the applicant, who expects to visit Holland in November, and desires the passport before leaving Bavaria, may be duly informed.

I have, etc.,

Edwin F. Uhl.
[Inclosure 1 in No. 135.]

Mr. Black to Mr. Uhl.

Sir: Inclosed please find application of Paul Rosenheim for a passport.

[Page 218]

Under this same cover I also hand you the citizen’s paper and passport of his father.

The applicant, your will notice, was born in Wurzburg on the 7th day of June, 1878. He has never been to the United States, and has but a slight knowledge of our language. He claims he wants this passport to go to Holland in November, and said he asked for it now for the reason that he would not have so much time at his disposal later. Upon questioning him sometime after upon this same subject he informed me he wanted this passport to cover the four months he might reside here before November, and he desired to have it to report with when he leaves.

In this connection I think it well to take into consideration that July, August, and September, if I mistake not, are the months for calling in the military.

It appears he went to the city hall at Wurzburg and asked there if he had to serve in the army, and they informed him that as he had no domicile here he would not have to serve, but at the same time impressed upon him the fact that if he desired to remain in Germany he would have to serve in the army.

The applicant’s father, you will notice, emigrated to the United States about forty years ago. He lived in the United States about eighteen years. He passed through all the period of our war and never obtained a certificate of citizenship until after it closed, and six months after he obtained citizenship he returned with his family to Germany; has lived here ever since, never having been back to the United States. He is a man of means, living at Wurzburg the life of a private gentleman, and his son has informed the secretary of this consulate that the father did not want to become naturalized when he took out his citizen’s paper, but he desired a passport; and he found that unless he took out his citizen’s paper a passport could not be secured by him. Of course this must be family gossip, as the boy was not born at the time this passport was taken out.

It strikes me that this is a very weak foundation upon which to build a claim for the boy’s right to a passport. The father never performed his duties as a citizen of the United States for a longer period than six months. He then returned to his native land, Germany, where he has resided continuously for the past twenty-nine years. He still holds his original passport of 1867, which does not include this applicant, for he was not in esse at that time, and he offers these musty documents as evidence sufficient to warrant the issuing of a passport to a son who was born in Germany, who has never seen America, and who speaks our language most imperfectly.

Is it not a pertinent question, Why did not the father apply for a new passport that would have been sufficient to cover not only this son’s case, if it had been granted, but also that of his whole family?

Does it not appear, taking all the circumstances into consideration, as though this old evidence of former citizenship was being used to assist this boy in a, perhaps, military dilemma, and the rest of the family, having nothing to disturb their equanimity, are quite indifferent to their claim to United States citizenship?

The fee of 4.20 marks has been remitted by postal money order.

I have, etc.,

Wm. J. Black,
United States Consul.
[Page 219]
[Inclosure 2 in No. 135.]

Mr. Black to Mr. Uhl.

Sir: I have the honor to inclose you herewith the reply received by me from the Stadtmagistrat, Wurzburg, in re Seligman Rosenheim.

As the information is conveyed to me upon the letter I addressed to the Stadtmagistrat upon the 10th instant, I have to inclose also my communication concerning the subject. The intelligence conveyed is so full that it appears to answer fully all your inquiries and sets at rest all question as to time of arrival, continuance of residence, and occupation while in this country.

I have, etc.,

Wm. Black,
United States Consul.
[Subinclosure to inclosure 2 in No. 135.]

Mr. Black to the Burgomaster of Wurzburg.

Will you be kind enough to inform me how long Mr. Seligman Rosenheim, of No. 89 Semmelstrasse, formerly of New York, has lived in the city of Wurzburg and its vicinity? I understand that he also lived at Heidingsfeld. If so, will you be kind enough to inform me also how long he lived in that place?

Is he, or has he been, engaged in any business in Wurzburg, or has he always lived there as a private gentleman?

For any information which you can give me in regard to this subject I beg to express my thanks.

Yours, very respectfully,

Wm. J. Black,
United States Consul.

The letter is returned to the consulate of the United States at Nuremburg, with the respectful remark that Seligman Rosenheim, born at Heidingsfeld on August 17, 1821, has sojourned here as a private gentleman since 1867.

The City Magistrate,