No. 415.
Mr. Bayard
to Mr. McLane.
Washington, December 8, 1888.
Sir: Your dispatch No. 710, of the 17th ultimo, in relation to the issuing of a passport to Mr. Stephen Emil Heidenheimer has been received. You therein report that after inquiries for the purpose of [Page 566] refreshing his memory on the subject, Mr. Heidenheimer now recognizes and admits the fact that the “Edward Heidenheimer” who arrived in New York on board the Australasian on the 1st of November, 1866, was in fact himself, notwithstanding the error in the name as it appears on the steamer’s passenger list. Mr. Heidenheimer further states that when he applied to the court for naturalization in 1871, it was “with a view of leaving the United States for Germany on account of his health,” that he then intended to return to the United States when his health would permit, and that he had no intention of defrauding or misleading the court which naturalized him, but is, at this lapse of time, unable to state whether his application six months before the earliest legal date arose from ignorance of the law or a mistake as to the date of his arrival. Mr. Heidenheimer does not explain why he has never carried out his intention of returning to the United States, or why he supposed he needed to be naturalized in order to return to Germany, but he contents himself with appealing to have his affirmation accepted, that he had no intention of perpetrating a fraud when he applied for naturalization, and was sincere in representing to your legation that he had resided for five years in the United States. His ignorance of the law and facts in regard to the time of his arrival in the United States he attributed to his illness in 1870 and 1871.
You have properly explained to Mr. Heidenheimer the distinction between the right to receive a passport and the right to become naturalized under the laws of the United States.
The duty of the courts is imperative (see section 2170, Revised Statutes), and they have, therefore, no discretion in the matter, and Mr. Heidenheimer’s protestations of innocent intent can not confer jurisdiction upon the court to validate the act of naturalization which was admittedly obtained by false representations.
The discretion of the Secretary of State in issuing passports does not permit issuance to a person not a citizen, which is expressly prohibited by section 4076 of the Revised Statutes, which provides that—
No passport shall be granted or issued to, or verified for any other persons than citizens of the United States.
In the present case Mr. Heidenheimer has confessed that his certificate of naturalization was obtained by means of false statements to the court, whether ignorantly made or not is immaterial. He is not a citizen of the United States, and there in no authority for the issuance to him of a passport or other certificate that he is such citizen.
The Department can exercise no authority and express no opinion as to the judicial methods by which the defects in Mr. Heidenheimer’s naturalization, now fully admitted, can be cured after seventeen years’ interruption of that continued residence which the law makes a condition precedent.
You will cancel the passport heretofore issued by you to Mr. Heidenheimer, and you will return hither the passport issued to him in 1871 by this Department.
I am, etc.,