Mr. Hay to Mr. McCormick.
Washington, January 18, 1902.
Sir: Your dispatch, No. 38 of the 12th of November, ultimo, asking instructions with regard to issuing a passport upon the application of Moses Lilienthal, has been received.
You report that the applicant was born at Jerusalem, Palestine, on January 10, 1856, where he has since resided; that his father was born in the United States (but for what length of time he resided in the United States the application does not state), and that Lilienthal claims citizenship through the native citizenship of his father. You add that Lilienthal is the bearer of a certificate, Form 179, No. 11, issued by the United States consul at Jerusalem, January 29, 1901, which, with Turkish passports, you inclose. You state your belief that the consul at Jerusalem issued the certificate contrary to sections 169 and 149 of the Consular Regulations, and that for this reason, and because you are not convinced of the bona tide intention of the applicant to return to the United States (where he has never been) within two years, you have, pending instructions, declined to issue him a passport.
The Department’s instruction of August 15, 1894, to Mr. Buchanan, minister at Buenos Aires (Foreign Relations, 1894, p. 19), authorizes a certificate of deposit of a passport. Such a certificate may properly be issued. But in the certificate submitted in this case, and to which you invite attention, the words “deposit of passport and” are struck out in the caption and it reads: “Certificate of registry of a citizen of the United States.” As the document contains a description of the holder, and describes him as a son of a citizen who held a passport, it has doubtless served the purpose of a passport for him. It would seem, therefore, to be an improper document. It should have been based upon the deposit of the applicant’s passport. It could not properly be based upon the deposit of the passport of the father of the applicant. It is presumed the consul acted upon the theory that the father’s citizenship in this case descended to the son, and that the proof of the citizenship was tantamount to the holding of a passport; but the Department may, on occasion, refuse a passport to a person without denying that he may be a citizen of the United States. Your supposition concerning the impropriety of the issuance of the document by the consul at Jerusalem seems to be correct, and an explanation will be invited from him.
Your question whether this certificate of registry is not a violation of paragraph 169 of the Consular Regulations, which authorizes withholding a passport from one who has practically abandoned his country, and of paragraph 149, which prohibits the granting of a passport to anyone who is not a citizen of the United States, may be answered in the negative, as the document issued was not a passport.
The right of the applicant to receive a passport is another matter. If the father was a citizen of the United States when the son was born, the son was himself born a citizen of the United States. He was, moreover, as it would seem, born in a country in which the United States exercises extra territorial jurisdiction, and where the general principle concerning indefinite residence abroad is not so rigidly applied. Nevertheless, the circumstances of the present case do not seem to entitle the applicant to such exceptional consideration. Born in Jerusalem [Page 67] nearly fifty years ago, Mr. Lilienthal has never been in the United States, and while he declares his intention to come hither within two years, this statement, in your opinion, and in that of the Department so far it is advised, is negatived by the circumstances. Citizenship involves duties on the part of the citizen as well as obligations on the part of the Government. There has been an entire absence of performance of duties of citizenship on the part of the applicant. The fact that he does not become a subject of Turkey does not alter the fact that he is not performing, and never has performed, the duties pertaining to American citizenship. Your action in withholding a passport is approved.
Returning the original papers communicated with your despatch, as requested, I am, etc.,