Mr. Uhl to Mr. Olney.
Berlin, September 24, 1896. (Received Oct. 8.)
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.,