Mr. Sherman to Mr. Storer.

No. 52.]

Sir: Your No. 42, of the 26th ultimo, has been received. You therein state the facts in the case of Stephan E. Bayer upon which you have refused to issue to him a passport.

Mr. Bayer asks whether he is an American citizen and whether he is entitled to the protection of a passport. Determination of the fact of citizenship is not an executive function. What is reserved to the executive is the use of its proper discretion as to the protection of a person abroad when the facts prima facie establish his citizenship by origin or naturalization, and the issuance of a passport is part of the exercise of that discretion. The question simply is whether the circumstances of Stephan E. Bayer’s origin and residence abroad are consonant with citizenship on the face of the facts and with continued protection while he sojourns without the territory of the United States.

The essential fact to be ascertained is whether at the time of Stephan E. Bayer’s birth abroad his father, Elias Bayer, was a citizen of the United States, and entitled, while so residing in a foreign country, to the continued protection of this Government.

The records show that Elias Bayer, the father, was naturalized before the supreme court of New York on May 12, 1868. A few days thereafter he received from the Department passport No. 37399, dated May 22, 1868. Sixteen years later another passport (No. 13217) was issued to him by the Department on November 18, 1884, upon surrender of the old one. No record appears of the issuance of any other passport in his favor between the dates mentioned.

Stephan E. Bayer was born in Dresden in 1871, only three years after the naturalization and return to Germany of his father. There is nothing adduced to suggest that the father, Elias, by unduly prolonged residence abroad then—as has been seen, only about three years—or by any other act, had renounced his acquired status. He is to be assumed to be an American citizen by birth abroad of American parents, unless he has lost such citizenship since he reached majority. Section 1993, Revised Statutes, expressly meets the circumstances of a child so born abroad never residing in the United States. Germany, it would seem, has never made adverse claim to his allegiance, so that the abstract question of his right of option between two conflicting allegiances upon reaching majority is not material to the case. Under German law and treaty it would seem that no proper claim to his allegiance can be made by Germany. Belgium, the country of his present [Page 30] residence, has obviously no claim thereto. The case is to be treated precisely like that of a native-born citizen of the United States who has gone abroad and remained six years—the time which has elapsed since Stephan E. Bayer came of age. Such person would doubtless be required to show, before a passport could be issued to him, that he intended to return to the United States within some reasonably definite period, or at least that he had a definite intention to return for the purpose of residing here permanently. In other words, in such case, upon compliance with the usual requirements, a passport would be granted, warning the applicant of the necessity of properly conserving his citizenship in the future.

If Stephan E. Bayer meets the presumption created against any valid intent to come to the United States, resulting from the circumstances of his long residence abroad, and fully complies with the prescribed requirements, including declaration of intention to return to and reside in the United States, there would seem to be no reason why a passport should be refused to him unless his expressed intention be negatived by facts or circumstances known to you.

Respectfully, yours,

John Sherman.