7. MINOR CHILDREN. $ 501. Passports are issued to minors who are citizens of the United States. In the case of a minor, however, there may arise a question of double allegiance. In order to meet this contingency, the Government of the United States, from 1870 to 1885, used a qualified form of passport in the case of children born abroad of American fathers. This form, as elsewhere appears, was discontinued, not because of any doubt as to the existence and operation of the principle of double allegiance, but because it was supposed that it might stand in the way of the assertion by the individual of the rights, if any, which might be derived from "domicil." The form was not understood to deny or impair any right of American citizenship. It merely referred to the fact that a conflicting allegiance might exist. The form was merely precautionary, or suggestive, since a double allegiance does not always arise under the conditions to which it referred. Some countries do not claim, as the United States does, or, if they do so, claim only conditionally, the allegiance of all persons born on their soil and subject to their jurisdiction, even though born of alien parents. In order to determine the question, in a particular case, the municipal laws of the countries concerned must be known. It is erroneous either to speak or to think of a person as being a citizen, either jure soli or jure sanguinis, "by international law." International law recognizes both sources; it creates neither. If the municipal law of a particular country does not treat as citizens persons born on the soil, of alien parents, international law does not step in and thrust upon such persons the citizenship of the country. If, on the other hand, the municipal law does not impute citizenship to the foreign-born children of citizens, international law does not impute it. But it recognizes as readily the one rule as the other, as well as the fact that they may perchance both operate at the same time upon the same person. Where application was made to the Department of State for passports for five persons residing in the island of Curaçoa, four of whom were born in that island and one in the island of Saint Thomas, and all of whom were children of native citizens of the United States, but it did not appear that any of the applicants had ever resided or a For the law in relation to double allegiance, see supra, §§ 426–430. intended to reside in the United States, it was advised that they were not entitled to passports. Hoar, At. Gen., 1869, 13 Op. 89. This opinion, and the opinion of Attorney-General Pierrepont, in 1875, 15 Op. 15, are cited with approval by Mr. Blaine, who stated that they had "since been uniformly followed," in his instruction No. 33. Dec. 14, 1889, to Mr. Phelps, min. to Germany, MS. Inst. Germany, XVIII. 277. "Section 4076 of the Revised Statutes expressly limits the grant or issue of passports to citizens of the United States, who must be held to be actual citizens only, so that there is no authority for the issue of passports certifying a qualified or restricted citizenship." Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, May 7, 1888, For. Rel. 1888, I. 534, in relation to the case of Henry Asché, to whom a qualified passport was issued by the legation at Paris. The legation was instructed that it was desirable that the passport in question should, if it were practicable, be “recalled and cancelled." "Should not passports be refused to the children of naturalized citizens born abroad, who have never been in the United States, and whose fathers are or were permanently residing abroad? .. "The answer is in the affirmative, with the qualification that the exclusion does not apply to cases in which the applicant, when arriving at majority, seeks the passport in order to return to the United States with the avowed intention of taking upon himself the duties and responsibilities of American citizenship. If, however, clear proof exists of the father's renunciation of American citizenship prior to the son's birth, then a passport should not be granted to the son. Mr. Bayard, Sec. of State, to Mr. Vignaud, chargé at Paris, June 13, 1888, The Department of State, after mentioning the objections to issuing a passport to a person who had resided continuously for thirty years in France, the country of his origin, said: "As to the minor children of such a person born abroad, who were never in the United States, and not being sui juris can not elect their domicil or citizenship, the objection to issuing passports to them is even stronger; and during minority they can claim nothing more at least than their parent. The minor does not need a passport to enable him to come to the United States, to which country he can resort whenever he chooses.” Mr. Bayard, Sec. of State, to Mr. McLane, min, to France, July 20, 1888, For. Rel. 1888, I. 551. L. was born in the United States in 1862, his father being a naturalized citizen of German origin. In 1874 the father went to British Columbia, where he became a naturalized British subject. L. accompanied his father to British Columbia, and was still residing there, when in 1889 he applied to the consul of the United States at Victoria for a passport as a citizen of the United States. Held, That, when the father became a British subject, L., being then a minor, was affected by the change of allegiance, and that as he had, since attaining his majority, elected to remain within the jurisdiction of Great Britain, he was not entitled to a passport as a citizen of the United States. Mr. Wharton, Assist. Sec. of State, to Mr. Wheeler, May 8, 1889, 172, MS. "It has been suggested to the Department that unless this Government recognizes the American citizenship of Arthur Altschul he may be liable to the claims of the German Government, within whose jurisdiction he was born and still lives. It has, however, repeatedly been held, upon the maturest consideration of the law, that the protection of this Government can not be employed for the purpose of enabling a person to escape his obligations to a government to which he owes valid allegiance, and that, in the case of double allegiance, a passport should not be granted by one of the Governments to which allegiance is due in order that the applicant may, while continuing to reside within the jurisdiction of the other, be exempt from its claims. This principle was laid down in 1869 in the case of certain persons residing in Curaçao (13 Op. 89, Hoar, At. Gen.) and again in 1875, in the case of one Steinkauler, in Prussia (15 Op. 15, Pierrepont, At. Gen.), and has since been universally followed." Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, No. 33, Dec. 14, 1889, MS. Inst. Germany, XVIII. 277. In the text of this instruction, the opinion, in 15 Op. 15, is described as that of Attorney-General "Williams," but I have given it as Attorney-General Pierrepont's opinion, which it actually was. John Maurice Hubbard, a minor, who was soon to come of age, was born in France of American parents. "By the French law of citizenship a person born in France of alien parents and domiciled in France at the time of reaching majority is allowed one year after reaching majority to elect to retain the citizenship of his parents. In default of so doing, at the expiration of that period and if retaining French domicil, he is to be deemed a citizen of France. It is therefore evident that the acquirement of French citizenship is optional, not obligatory, and that the interested party, on becoming sui juris, is, in any event, as free to choose his citizenship as his domicile. "By the statutes of the United States Mr. Hubbard is by birth an American citizen. His right, however, to claim the protection of this Government abroad may be affected by the lawful claims of the Government within whose jurisdiction he was born. It depends also upon those considerations which prevail in the case of any citizen of the United States who takes up his residence in a foreign country. If he desires a passport, he should prove to the legation, as is requisite in such cases, that he has a fixed purpose to come to this country within a reasonable time with the intent of making it his permanent home. "John Maurice Hubbard's intentions in regard to his future domicil are not stated; but, from the circumstance of his resorting to the procedure prescribed by French law to legalize his status as an alien continuing his residence in France, it may be inferred that Mr. Hubbard intends to keep up his present domicil beyond the year following his coming of age. If this be so, the interest which this Government would have in assuring his claim to American citizenship for the purpose of indefinite residence abroad is not apparent. Both international and statutory law in this relation aim to insure to the Government of which the party claims to be a citizen the right and free opportunity to exact of him the fulfillment of the duties of citizenship, as much as to secure to the party the enjoyment of the rights and privileges of citizenship. The relation to be established is reciprocal, involving the allegiance of the person to the state which protects him, as well as the obligation of the state to protect him while he shall bear true faith and allegiance to it. "It rests, therefore, with Mr. Hubbard to determine his status on becoming sui juris. If he in good faith purposes to take up his abode in the United States and here perform the duties and enjoy the benefits of citizenship, he has clearly the right to do so and to be aided therein by his Government. But, if it be his purpose to remain indefinitely abroad, it is not incumbent upon this Government to assist him to evade the obligations of citizenship here and of domicil in France. "It appears that the consul at Havre has supplied Mr. Hubbard with documentary evidence to justify his claim to be a citizen of the United States, and that such evidence may suffice to determine his status as an alien under the French law you quote. It is desirable that the nature of the consul's intervention should be ascertained, and Mr. Williams will be called upon to report fully what he has done in the premises. “Should Mr. Hubbard resort again to the legation after attaining legal age, you will satisfy yourself as to his intentions respecting his future domicil, and, should it appear that he purposes in good faith to perform the duties of citizenship, a passport may be issued to him. The Department sanctions no other evidence of citizenship than this. But if it shall appear that Mr. Hubbard has no fixed intent to dwell 1 in the United States, you will treat his case precisely as any other where the conduct of the applicant suggests a voluntary abandonment of the rights of protection claimed by him, and will withhold a passport." Mr. Blaine, Sec. of State, to Mr. Reid, min. to France, No. 353, Oct. 30, 1891, For. Rel. 1891, 493. See, also, Mr. Reid to Mr. Blaine, No. 428, Oct. 8, 1891, id. 491. "The Department assumes that the staternent of Mr. Thompson that he is trying to get a position for young Hubbard in the United States, is a bona fide evidence of intention to come and make a home in this country; and a passport, good for one year only, may be given him to assist in the accomplishment of that end. "A passport is the only formal evidence the Department can give that the United States claims Mr. Hubbard as a citizen. If the French Government requires any other proof of claim, it would doubtless be fully developed in the correspondence which would follow any attempt of the French authorities to disregard the evidence of a passport. But Mr. Hubbard and his guardian should be distinctly advised that this Government can not be expected to manifest any interest in claiming as a citizen a person who is voluntarily withdrawn from the jurisdiction of our laws, and who exhibits no practical intention to fulfill the duties of citizenship. Unless Mr. Hubbard makes good his citizenship within the year, no new passport will be granted him.” Mr. Foster, Sec. of State, to Mr. Coolidge, min. to France, No. 119, Dec. 9, 1892, For. Rel. 169. See Mr. Coolidge's No. 77, Nov. 12, 1892, For. Rel. 1892, 168. As to the case of Jacob Woldenberg, in Russia, see Mr. Blaine, Sec. of C., the widow of an American citizen, applied to the legation of the United States at Berlin for a passport for herself and six minor children. It appeared that C. was of German birth, that she had resided. abroad since 1873, that she was domiciled in Germany, that all her children were born abroad, and that it was her intention to live in Germany till their education was completed, the eldest being 18 and the youngest 3 years old. It was decided that a passport should be given to her, in order that "the right of her sons to elect American citizenship on their majority may be preserved unimpaired;" and, that, as they came of age, and separate passports became necessary to them, "their right thereto must be determined independently and upon their own merits.” Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, Nov. 11, 1891, |