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issued the following facts should be established to the satisfaction of the Secretary of State: (a) that the applicant had resided in the United States for at least three years as provided by law; (b) that he was not then eligible under the law for final naturalization; (c) that at least six months had elapsed since the applicant's declaration of intention; (d) that the applicant had not previously applied for and obtained a similar passport from the Department; (e) that a special and imperative exigency existed requiring the absence of the applicant from the United States;1 (f) that the applicant had not applied for and obtained a passport from any other government after he had declared his intention to become a citizen of the United States.

While the enactment of the statute indicated no disposition on the part of the United States to substitute domicile for allegiance as the test of national character for purposes of diplomatic protection in times of peace, save under the exceptional circumstances noted, it is believed that the repeal of the law was altogether desirable.

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$398. Extraterritorial Factories of American Citizens.

The Department of State has been confronted with the problem of determining to what extent the aid of the United States should in the United States who have resided here more than three years and have made declarations of their intention to become American citizens. Such certificates should not describe the holders as American citizens, but should set forth their exact status." Telegram of Mr. Lansing, Acting Secy. of State, Sept. 12, 1914, American White Book, European War, II, 155, 156.

i In this connection it was said that "The burden of proof will, in each case, be upon the applicant to show to the satisfaction of the Secretary of State that there is a necessity for his absence. The statement as to such necessity must be detailed and supported by satisfactory corroborative evidence. Under this rule passports will not be granted to persons who wish to go abroad as commercial travelers."

See, also, Mr. Lansing, Acting Secy. of State, to the American Embassies and Legations in Europe, Sept. 12, 1914, American White Book, European War, II, 155, 156.

In a communication of Feb. 20, 1914, to the American Consul-General at Shanghai, it was declared by Mr. Moore, for the Secretary of State, that the Department of State construed § 1 of the Act of March 1, 1907, as applicable only to cases of declarants who, because of some pressing necessity, were obliged to absent themselves from the United States for a brief period, and not to cases of persons who sought to establish themselves abroad with the intention of making a protracted stay. Mr. Moore had reference to the case of Leo Koeningsberger, a native of Germany, who, some three years after having declared his intention of becoming a citizen of the United States, went to China where he desired to remain for several years and complete his naturalization upon his return. Mr. Moore adverted to the fact also that residence in a foreign country where extraterritorial privileges were enjoyed could not be taken to satisfy the requirements of residence under the naturalization laws of the United States.

be accorded American citizens who have established manufacturing plants with American capital in foreign countries. It has been perceived that in certain instances the transfer to foreign territory of American enterprises with a view to securing benefits of certain preferential features of a foreign tariff law, has rendered such concerns direct competitors in certain markets of American firms in the United States. Thus, in 1910, the Department decided that firms which had removed "all or a part of their plants from the United States to Canada" were no longer entitled to the assistance of the Government so far as their foreign factories were concerned.1 It was recognized, however, that circumstances might justify the extension of governmental assistance to an extraterritorial factory either established or projected by American citizens who made use of American capital. It was declared that where, for example, an established manufacturing enterprise in the United States, exporting its products to foreign countries, found it expedient to meet competitive conditions in a certain foreign market by establishing a branch therein for the purpose of preempting the field and stopping competition, and thus preserving and fostering the main export business for the benefit of which the branch had thus been established, there would seem to be reason for the extension of the good offices and assistance of the foreign service of the United States. It was said that such a case was to be clearly distinguished from one where a foreign branch was a serious undertaking maintained to build up a trade which would compete with the genuine American export trade, "and might even result in making the branch in the foreign country a base for distributing foreign-made goods to third countries in competition with American exports." 2

The distinction thus laid down appears to be important. It reveals the fact that when American enterprise in foreign territory opposes the economic as well as political interests of the United States, the American nationality of the actors is a matter of subordinate consideration. The strength of the equity of those who invoke the extension of the good offices of the United

1 Mr. Knox, Secy. of State, to American Diplomatic and Consular Officers, March 24, 1910, quoting Circular Instruction to Consular Officers, of April 30, 1906, Dept. of State, Circulars Relating to Citizenship, 1916, 30-32.

2 Íd. "In cases of this kind," it was said, "the department must regard the enterprise as essentially foreign from the point of view of international competition, and, therefore, the activities of the diplomatic and consular officers in behalf of the American citizens who are concerned in the establishment of such extraterritorial factories should be limited to matters of courtesy and the supplying of general information only."

States depends not only upon the allegiance in name and in law of the individuals concerned, but also upon their abstention from commercial activities deemed to be at variance with the general economic welfare of the State.1

1 The rule of policy enunciated by the Department of State is in reality an application of the fundamental principle observed in the treatment of claims of nationals, and which is deemed to justify a withholding of interposition whenever the conduct of the claimant is inconsistent with his allegiance to the United States. Dept. of State, Claims Circular, 1919, Revision of Jan. 30, 1920, Section 7. The significant thing is that his conduct is deemed to possess such a character when it opposes the obvious economic interests of the United States. The reality of commercial disloyalty to the nation is perceived, and a penalty applied which is appropriate to the act,

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TITLE E

AMERICAN PASSPORTS

§ 399. In General.

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"A passport is the accepted international evidence of nationality; in its usual form, it certifies that the person described in it is a citizen or subject of the country by whose authority it is issued, and requests for him permission to come and go, as well as lawful aid and protection." A passport is the only permissible certification of American nationality. While the United States does not complain of the exaction by a foreign State of

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1 The language of the text is that in Moore, Dig., III, 856. "Other documents, such as safe-conducts, letters of protection, and special passes for individuals, and even passes for vessels, are referred to as passports, and not altogether inaccurately, since their object is to secure for the particular person or property freedom of movement and lawful protection. But these documents are used chiefly in war, and are granted on the strength of the personality rather than of the nationality of the individual, being issued, according to the circumstances of the case, even to enemies." Id.

See, generally, Gaillard Hunt, The American Passport, Washington, 1898; Rules Governing the Granting and Issuing of Passports in the United States, issued by President Wilson Jan. 24, 1917; proclamation and executive order of President Wilson, Aug. 8, 1918; President Wilson, message to the Congress, Aug. 25, 1919, respecting the continuance of the passport-control system, Senate Doc. No. 79, 66 Cong., 1 Sess.

A passport, as defined by Mr. Gaillard Hunt, "is a document issued by the Secretary of State, or, under his authority, by a diplomatic or consular officer of the United States abroad, to a citizen of the United States, stating his citizenship, and requesting for him free passage and all lawful aid and protection during his travels or sojourn in foreign lands." American Passport, 4. 2 Mr. Adee, Acting Secy. of State to Mr. Terres, No. 142, Sept. 26, 1893, For. Rel. 1894, 346. See, also, Mr. Bayard, Secy. of State, to Mr. McLane, Minister to France, July 2, 1885, For. Rel. 1885, 373, Moore, Dig., III, 857.

It may be observed that American consular officers have been authorized to issue to American citizens registered at consulates certificates of registration. Such documents do not certify that the registrants are citizens of the United States, but merely that they have registered as such. The same proofs of citizenship are, however, required in applications for registration as are demanded in applications for passports. Registration certificates are intended for use with local officials and not for purposes of travel. For this paragraph the author acknowledges his indebtedness to Mr. R. W. Flournoy, Jr. See Consuls, Miscellaneous Duties, infra, § 488.

such a certification of American citizens within its domain, objection is raised when the exaction constitutes a discrimination against such individuals.1

According to the existing law the right to issue passports in the United States is lodged solely in the Secretary of State, who is also empowered to permit the issuance and verification of passports in foreign countries by American diplomatic and consular officers, and by the chief or other executive officer in the insular possessions of the United States, and under such rules as the President may designate and prescribe.2

The Act of June 15, 1917, established as a condition precedent to the issuance of a passport to any person by or under the authority of the United States, the subscription to and submission by the applicant of a written application duly verified by his oath before a person authorized and empowered to administer oaths, and required that such application should contain a true recital of each and every matter of fact which might be required by law or by any rules authorized by law to be stated as a prerequisite to the issuance of a passport.3

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Passports are not issued by American diplomatic and consular officers abroad, except in cases of emergency. A citizen who is abroad and desires to procure a passport must apply therefor through the nearest diplomatic or consular officer to the Secretary of State. Where, however, inconvenience or hardship would result from failure of the applicant entitled to a passport to receive one at once, a diplomatic officer, or a consular officer duly authorized by the Secretary of State, may issue an emergency passport good for a period not to exceed six months, and to be used for a stated purpose. Such a passport may be issued only when it is clearly shown that the person applying therefor is

Mr. Bayard, Secy. of State, to Mr. Muruaga, Spanish Minister, May 19, 1886, MS. Notes to Spain, X, 420, Moore, Dig., III, 859.

2 Rev. Stat. § 4075, as amended by the Act of June 14, 1902, 32 Stat. 386, U. S. Comp. Stat. 1918, § 7623; also Rev. Stat. § 4078. See, also, Rules Governing the Granting and Issuing of Passports in the United States, Jan. 12, 1915, enclosed in circular to American Diplomatic and Consular Officers, Feb. 8, 1915, American White Book, European War, II, 158-161; Dept. of State, Circulars Relating to Citizenship, 1916, 52.

3 Chap. 30, title IX, § 1, 40 Stat. 227, U. S. Comp. Stat. 1918, § 7628a. According to the Act of June 4, 1920, the validity of a passport or of a visa is limited to two years, unless the Secretary of State limits the validity of either of such documents to a shorter period. 66 Cong., 2 Sess., Chap. 223.

Rules Governing the Granting and Issuing of Passports in the United States, January 12, 1915, American White Book, European War, II, 160. Concerning Applications for Passports, see, id.; also Rules Governing the Granting and Issuing of Passports to Those Who Have Declared Their Intention to Become Citizens of the United States, June 1, 1915, id., II, 164.

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