§ 401. Grounds of Refusal.

3

The issuance of passports is a discretionary act on the part of the Secretary of State, and he may, for reasons deemed by him to be sufficient, direct the refusal of a passport to an American citizen; but a passport is not to be refused to an American citizen, even if his character is doubtful, unless there is reason to believe he will put the passport to an unlawful use.1 A passport has been refused where the evidence showed that the applicant was engaged in "blackmailing projects, and was disturbing, or endeavoring to disturb, the relations of this Country with the representatives of foreign countries." 2

In the course of The World War the Secretary of State exercised more extensively than before his discretionary authority to refuse passports. During the earlier part of the conflict, the obtaining of, and the attempting to obtain, American passports for purposes of espionage and participation in belligerent activities rendered imperative the taking of great precautions in the issuance of such documents. Among those taken was the establishment of a rule not to issue passports for use in the belligerent countries except in cases of reasonable necessity. When the United States itself became a belligerent, more stringent rules were made and passports not issued for use in any country except in cases of such necessity.3

A passport is necessarily refused when the applicant is deemed to have expatriated himself. Again, a passport is withheld from a native or naturalized citizen who, on account of his domicile abroad, or for any other reason, is deemed to have lost his right to protection by the United States.4

April 11, 1906, For. Rel. 1906, II, 912; also important statement in Moore, Dig., III, 883. See Grounds of Refusal, infra, § 401; Double Allegiance, supra, §§ 372-375.

1 The language of the text is that of Mr. Wilson, Acting Secy. of State, to Mr. Beaupré, Minister to the Argentine Republic, No. 120, April 27, 1907, For. Rel. 1907, II, 1082.

2 Id. Also same to Mr. Giddings, Consul-General at Cairo, Jan. 31, 1907, id., II, 1081; Memorandum of the Solicitor of the Dept. of State, respecting the same case, Jan. 2, 1907, id., II, 1079. See, also, instructive note of Mr. Adee, Acting Secy. of State, to Mr. Conger, Minister to China, Aug. 24, 1899, For. Rel. 1899, 186-187, Moore, Dig., III, 922–923; Opinion of Mr. Knox, Atty.-Gen., 23 Ops. Attys.-Gen., 509, Moore, Dig., III, 921.

3 For the paragraph in the text the author acknowledges his indebtedness to Mr. R. W. Flournoy, Jr.

Loss of Right to National Protection, supra, §§ 388-393. Concerning the Cancellation of Passports procured by false representations or under circumstances when the retention of American citizenship at the time of issuance was doubtful, see documents in Moore, Dig., III, 983–984.

4

INTERNATIONAL EFFECT

$402. Evidential Force.

a

On the theory that a State is the sole and ultimate judge of the "citizenship of its own dependents, and is, in its sovereign capacity, competent to certify to the fact ", the United States demands that an American passport be respected abroad as prima facie evidence of the citizenship of the bearer.1 Thus the Department of State asserts that it is not, in the first instance, incumbent upon the bearer to prove his citizenship by extraneous evidence at the will of the country of sojourn, nor upon the United States to support its official attestation of the fact of citizenship by collateral proof.2 In case a foreign government has reason to believe that a passport has been fraudulently issued, or is held by a person other than the one to whom it was issued, or that the holder was fraudulently naturalized within the United States, it is declared that the matter should be brought to the attention of the American diplomatic officer accredited to the State making complaint, who will render the necessary assistance (if need be in conjunction with the Department of State), in examining the authenticity of the document. It is believed that upon proof of fraud, there would be no disposition on the part of the United States to regard the passport other than as a nullity.1

1 Mr. Gresham, Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Sept. 4, 1893, in the Case of John Benich, For. Rel. 1893, 23, 24, Moore, Dig., III, 987; Case of Solomon Czosnek, For. Rel. 1895, I, 13-20, Moore, Dig., III, 989-991; Mr. Olney, Secy. of State, to Mr. Risley, Minister to Denmark, Nov. 28, 1896, For. Rel. 1897, 118, Moore, Dig., III, 986.

It may be observed that an American passport does not purport to certify that the bearer is an American citizen. It simply attests the citizenship of the person named and described therein and whose signature is appended thereto.

In a case decided by the Supreme Court of the United States in 1835, Urtetiqui v. D'Arbel, 9 Pet. 692, 699, when there were no laws regulating the issuance of passports, it was declared that a passport issued by the Secretary of State was not evidence in an American court that the person to whom it was given was a citizen of the United States. See, also, In re Gee Hop, 71 Fed. 274.

2 Mr. Gresham, Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Sept. 4, 1893, For. Rel. 1893, 23, 24, Moore, Dig., III, 987.

Id. See, also, Mr. Foster, Secy. of State, to Mr. White, Minister to Russia, Nov. 26, 1892, For. Rel. 1893, 530, Moore, Dig., III, 986; Mr. Uhl, Acting Secy. of State, to Mr. Hengelmüller, Austrian-Hungarian Minister, May 22, 1895, MS. Notes to Austrian Legation, IX, 217, Moore, Dig., III, 1000.

Mr. Marcy, Secy. of State, to Mr. Jackson, Jan. 10, 1854, MS. Inst. Austria, I, 89, Moore, Dig., III, 1000. Also Impeachment of Naturalization, supra, §§ 370–371.

When, according to a naturalization treaty, recognition of a change of allegiance is made dependent upon both naturalization and a residence of five years within the domain of the State of adoption, the Department of State has admitted, that in the absence of disrespect to a passport as prima facie evidence of citizenship, it is not easy to dispute the claim of a contracting State of a right to ascertain by some separate process whether the requirement as to residence has been fulfilled, in the case of a person capable of acquiring citizenship in less time than five years, and in view of the fact that a passport does not disclose the statute under which naturalization was effected.1

$403. Visa.

b

Mr. Gaillard Hunt has said that

Some foreign countries, before recognizing the validity of a passport, require that a visa, or visé, shall be, or shall have been, affixed to it. This is an endorsement denoting that the passport has been examined and is authentic, and that the bearer may be permitted to proceed on his journey. Sometimes it is required that the visa be affixed in the country where the passport is issued, by a diplomatic or consular officer of the government requiring. it; sometimes simply by such officer anywhere; sometimes at the frontier of the country to which admission is sought. It may even be required from a diplomatic or consular officer of the government which issued the passport.2

While the United States does not dispute the right of a foreign State to require that a visa be affixed to an American passport, objection is made if American citizens are subjected to discrimination in the amount of the charge exacted.3 The Department

1 Mr. Olney, Secy. of State, to Mr. Jackson, Chargé at Berlin, No. 544, Feb. 13, 1896, For. Rel. 1895, I, 520, 522-523, Moore, Dig., III, 993. The class of persons especially referred to were minors, honorably discharged soldiers, merchant seamen, naturalized under special provisions of law on less than five years' residence.

2 The American Passport, 5, quoted in Moore, Dig., III, 994, and citing Dana's Wheaton, p. 298, note.

See, also, notice respecting the visas of passports issued by the Department of State, May 20, 1915, American White Book, European War, II, 163.

3 Mr. Frelinghuysen, Secy. of State, to Mr. Foster, Minister to Spain, March 12, 1884, MS. Inst. Spain, XIX, 504, Moore, Dig., III, 999; Mr. Bayard, Secy. of State, to Mr. Muruaga, Spanish Minister, May 19, 1886, MS. Notes to Spain, X, 420, Moore, Dig., III, 999.

By the Act of June 4, 1920, 66 Cong., 2 Sess., Chap. 223, from and after July 1, 1920, the fee for executing each application for a passport was fixed

of State objects, moreover, to any indorsement on a passport serving to deface it or to impair its usefulness, by a representative of a foreign government who, for any reason, declines to affix a visa to the document.1

The Department of State at one time lodged vigorous protest against the practice of Russian consuls in the United States, of interrogating American citizens as to their race and religion, and, upon the ascertainment thereof, of denying to persons of Jewish faith the authentication of passports for use in Russia.2

404. Local Papers.

5

Certain foreign countries require an alien, upon entering the national domain, to deposit his passport with the local authorities or with his diplomatic or consular representative, and thereupon to secure a permit to sojourn or travel. Such a permit was given in Russia under imperial authority to the holder of a passport duly visaed when entering the empire.3 In Turkey a so-called tezkéréh is issued which is considered as a safe-conduct.*

When, as sometimes happens in Latin-American countries, an American citizen is obliged to deposit his passport with his legation or consulate, and receive a certificate of registry, in the native tongue, the Department of State has announced that the

at one dollar, and the fee for each passport issued to a citizen or person owing allegiance to or entitled to the protection of the United States was fixed at nine dollars.

1 Mr. Runyon, Ambassador to Germany, to Baron Rotenhan, Sept. 2, 1895, For. Rel. 1895, I, 540, Moore, Dig., III, 997–998; also For. Rel. 1896, 517

519.

2 President Cleveland, Annual Message, Dec. 2, 1895, For. Rel. 1895, I, xxxii, Moore, Dig., III, 996; see, also, documents in Moore, Dig., II, 8-12, especially Mr. Adee, Acting Secy. of State, to Mr. Breckinridge, Minister to Russia, Aug. 22, 1895, For. Rel. 1895, II, 1067, Moore, Dig., II, 11.

It may be observed that the refusal of Russia to honor passports of American citizens of Jewish faith was a reason which caused President Taft to have the American Ambassador at St. Petersburg notify the Russian Government, Dec. 17, 1911, of the intention of the United States to terminate the operation of the treaty of commerce and navigation with Russia of Dec. 18, 1832, and which caused the Congress to pass a joint resolution ratifying the action taken by the President. The resolution was approved by President Taft, Dec. 21, 1911. See editorial comment, Am. J., VI, 186–191.

3 Notice of Department of State, Aug. 1, 1901, in which it is also stated that at least twenty-four hours before departure from Russia the permit of sojourn should be presented to the authorities, whereupon a passport of departure will be granted and the original passport returned." For. Rel. 1901, 453, Moore, Dig., III, 994.

4 Documents in Moore, Dig., III, 1004-1006, especially Mr. Bayard, Secy. of State, to Mr. Straus, Minister to Turkey, No. 14, May 10, 1887, MS. Inst. Turkey, IV, 573.

certification must in no sense partake of the nature of a passport, attesting the nationality of the bearer, but must be simply either a certificate of the deposit of the passport and of the registration of the individual, or an indorsement on the passport itself certifying what that document purports to attest. Whatever certificate is given must be predicated upon a regular passport and not issued in lieu thereof.1

§405. In General.

6

WAR REGULATIONS

a

A State engaged in war may with reason adopt extraordinary precautions respecting the entering and departing from its territory of both aliens and nationals.2 Passports duly visaed may be required of all persons seeking admission from a foreign

1 Mr. Gresham, Secy. of State, to Mr. Buchanan, Minister to the Argentine Republic, No. 24, Aug. 15, 1894, For. Rel. 1894, 19, Moore, Dig., III, 1007; Mr. Sherman, Secy. of State, to Mr. Stuart, Minister to Uruguay, May 25, 1897, For. Rel. 1897, 593, 594, Moore, Dig., III, 1008.

Respecting the use in China of travel certificates and transit passes as well as passports, see Moore, Dig., III, 1009-1015 and documents there cited.

Respecting the certification by American consular officers in Italy of Italian or French translations of American passports, and the desirability that American travelers in that country provide themselves with livrets d'identité, see For. Rel. 1908, 482-483.

Concerning the Registration of American Citizens Abroad, see Consuls, Miscellaneous Duties, infra, § 488.

Special Passports. A special passport limited to the case of a person going abroad in the fulfillment of some official trust or duty, and necessary as a certification of the individual's public character is, on appropriate occasions, issued by the Secretary of State, but not by American agents abroad. Mr. Olney, Secy. of State, to Mr. Wagner, Nov. 25, 1895, 206 MS. Dom. Let. 200, Moore, Dig., III, 1002; Mr. Hay, Secy. of State, to Mr. Storer, No. 313, March 25, 1901, MS. Inst. Spain, XXIII, 117, Moore, Dig., III, 1003; also statement, id.,

1001.

"Safe conducts, in a form similar to that of special passports, have also been issued to aliens, especially as bearers of despatches.

"So, also, letters of safe conduct, commonly called passports, are given to foreign ministers traveling in or departing from the United States." Moore, Dig., III, 1002, citing Hunt, American Passports, 7-35.

"During the recent war the Department of State adopted the practice of European Governments in issuing to diplomatic and principal consular officers documents known as 'diplomatic passports.' They are in form similar to 'special passports', but bear the heading 'Passeport Diplomatique' in red ink, according to the European custom. These documents insure to the bearers unusual courtesies and facilities." Communication of Mr. R. W. Flournoy, Jr., to the author, Sept. 20, 1920.

2 The rigor of the regulations of the United States during the Civil War is fully narrated in Moore, Dig., III, 1015-1021.

See, also, War, Pacific Intercourse of Belligerents, Passports. Safe Conducts, infra, §§ 640-641.