Mr. Herdliska to Mr. Hay.
Vienna, July 10, 1901.
Sir: I have the honor to lay before the Department for instructions the following case:
On the 2d instant, Consul Donzelmann, at Prague, sent to this legation the application for passport of one Carl Schimaneck, with the following report:
I have the honor to transmit to you, herewith inclosed, a passport application by one Carl Schimaneck, together with an old passport, a declaration of intention made by one Anton Schimaneck, who is claimed as having been the father of this applicant, a certificate of marriage establishing the fact of the applicant’s parents having been married in the United States, and a certificate of birth of this applicant. The facts in the case of this applicant, as he has stated in this consulate this day, are these, viz:
His father emigrated to the United States in 1876, and shortly after his arrival there declared his intention to become an American citizen, as evidenced by the certificate herewith inclosed. The father died before completing his American citizenship, and having married between the time of declaring his intention to become an American citizen and his death, as the issue of this marriage was this applicant who was born in the United States. The mother of this applicant returned to her and her deceased husband’s native country, which was Bohemia, belonging to the [Page 12]Emperor of Austria as the sovereign, taking with her this applicant, her child. The mother never perfected her American citizenship, as provided by law, and has remained ever since her return to Bohemia, which was in the year 1881, an Austrian subject, and the child so brought over here never left Bohemia, never knew a word of the American language, and has married here in Bohemia another subject of Austria, thus evincing every desire to forever remain here in Austria. The facts, then, are that the applicant was born of foreign parents while they were sojourning in the United States of America, and under the facts stated heretofore this applicant did not become an American citizen simply because he happened to be born in the United States. Indeed, the declaration of intention made by the applicant’s deceased father is not valid in law, as it states that he declared himself to have been a subject of the Emperor of Germany, when in fact he never had been any other than a subject of the Emperor of Austria. But admitting for the sake of argument that this certificate is in conformity with the law governing the same, yet the applicant is not an American citizen because his mother, as well as himself, never complied with the law of the United States governing such cases. I do not think that our Government ought to be charged with the protection of this applicant, the law not permitting it.
As section 1992, Revised Statutes of the United States, expressly declares that “All persons born in the United States and not subject to any foreign power * * * are declared to be citizens of the United States,” Mr. Carl Schimaneck would appear to be a native citizen of the United States. It is true that he left the United States when but 4 years of age and has resided in Bohemia, the native country of his parents, ever since. It is also true that he has married an Austrian subject, and he does not appear to have any interests in the United States. And while he declares it to be his intention to return to the United States within two years, Consul Donzelmann says Mr. Schimaneck’s real purpose in applying for a new passport is to enable him to obtain a license from the Bohemian authorities to engage in business in Bohemia. In the application for passport made before this legation on the 2d of August, 1894, Mr. Schimaneck also declared his intention to return to the United States within two years. This intention he did not carry out. But he has not applied for a passport since and it does not appear that his case is one where trouble is to be feared from the military authorities. He appears to desire the new passport solely for the purpose of obtaining a new concession to enter into business, and I have therefore the honor to lay the case before the Department with the respectful request that full instructions may be sent to me in the matter. Copies of the documents in the case as transmitted to me by Consul Donzelmann are respectfully inclosed herewith.
I have, etc.,