Mr. Olney to Mr. Denby.

No. 1387.]

Sir: Your dispatch, No. 2636 of the 11th of November last, commenting upon the status of aliens who have taken out their first papers preparatory to acquiring citizenship in the United States and who may afterwards visit or sojourn in a foreign country, has been received.

You consider the question with reference to two applications made to you for contingent protection, one by an Englishman, the other by Rev. K. S. Stokke, a Norwegian, both of whom are now, or were at the time of the respective applications, in China.

The somewhat extreme position taken by Mr. Marcy in the Kozta case, that the declarant is followed, during sojourn in a third country, by the protection of this Government, has since been necessarily regarded as applying particularly to the peculiar circumstances in which it originated, and to relate only to the protection of such a declarant in a third country against arbitrary seizure by the Government of the country of his origin. As a hypothetical question that contingency is so unlikely to arise in either of the cases you mention as not to justify consideration and explicit instructions. Neither the Englishman or the Norwegian may be supposed to seek any other than extraterritorial protection by you in China, in virtue of his inchoate stage of citizenship.

It is established by the practical interpretation and application of domestic statutes, and by various treaties of naturalization concluded with foreign states, that a mere declaration of intention to become a citizen can not clothe the declarant with any of the international rights of citizenship, and he is clearly not entitled to a passport, which is the only protection paper issued by this Government. Under these circumstances it might be proper for you to exercise good offices in behalf [Page 93]of such a declarant; but as the conditions under which this might be done may vary greatly, and as the character and extent of your action would depend upon those conditions as actually ascertained, it is not practicable to give you a general instruction so to act.

It may, however, be said here that the act of naturalization being a judicial function depending upon the conditions prescribed by the existing statutes, one of which is a defined period of uninterrupted residence in the United States, it would obviously not be competent for you to determine whether the more or less continued abandonment of American residence and sojourn in a foreign land is or is not such an interruption of the statutory term of residence as to destroy the inchoate status which you have in mind in making your inquiry. That would be a question for the competent court should the party subsequently make application to be admitted to citizenship, and no action by an American minister abroad could prejudice the freedom of the court to decide whether the applicant had or had not fulfilled the statutory condition of residence.

It may further be noticed with reference to the case of the Norwegian, Mr. Stokke, that there is an express provision in our treaty with Sweden and Norway that declaration of intention shall not have the effect of naturalization. As regards the case of the Englishman, a similar declaration is not found in terms in the naturalization treaty of 1870, but under Article I Great Britain is obviously not constrained to treat as a citizen of the United States any subject who shall not have become naturalized according to law within the United States of America as a citizen thereof.

It would seem, therefore, that an Englishman, a Norwegian, or a declarant subject of any State with which the United States have a formal treaty of naturalization, would be excluded from protection by you in China.

I am, etc.,

Richard Olney.