No. 666.
Mr. Bayard
to Mr. Winchester.
Washington, March 28, 1887.
Sir: I have received your No. 89, of the 30th of November last, and your No. 105, of the 11th instant, both requesting instructions on the question whether citizens of the United States residing in Switzerland may rightfully be required by the local authorities to renew their passports two years after the date of issue as a condition of the continuance of their permis de séjour, such passports being, under the regulations of this Government, invalid after that period. Every foreigner, as you state, in order to enjoy the privilege of sojourn for a specified period in Switzerland must, according to Swiss law, deposit with the cantonal authorities authenticated evidence of his citizenship in the form of a passport visaed by a diplomatic or consular officer of his Government. The validity of this regulation is unquestionable. Every state has, under international law, the right to require of persons entering or residing in its territory some evidence of their personal identity and nationality, and the usual evidence of such nationality is a passport.
There is nothing in the conventional engagements between the United States and Switzerland that is inconsistent with the right of the Swiss Government to require citizens of the United States entering or intending to reside in Switzerland to deposit with the local authorities a duly authenticated passport. In Article I of the treaty concluded November 25, 1850, it is provided that—
The citizens of the United States of America and the citizens of Switzerland shall he admitted and treated upon a footing of reciprocal equality in the two countries where such admission and treatment shall not conflict with the constitutional provisions, as well federal as state and cantonal, of the contracting parties. The citizens of the United States and the citizens of Switzerland, as well as, the members of their families, subject to the constitutional and legal provisions aforesaid, and yielding obedience to the laws, regulations, and usages of the country wherein they reside, shall be at liberty to come, go, sojourn temporarily, domiciliate or establish themselves permanently, the former in the cantons of the Swiss Confederation, the Swiss in the States of the American Union, to acquire, possess, and alienate therein property * * * to manage their affairs, etc.
Article IV of the same treaty provided as follows:
In order to establish their character as citizens of the United States of America, or as citizens of Switzerland, persons belonging to the two contracting countries shall be bearers of passports, or of other papers in due form, certifying their nationality, as well as that of the members of their family, furnished or authehticated by a diplomatic or consular agent of their nation, residing in the one of the two countries which they wish to inhabit.
By the first of these articles the right of residence and property is recognized and confirmed, and by the second the proper evidence of claim to such rights is indicated and agreed upon.
It hardly seems necessary to say that the provision in Article I of the treaty, that “the citizens of the United States and the citizens of Switzerland shall be admitted and treated upon a footing of reciprocal equality in the two countries,” is not to be construed so as to prevent either the United States or Switzerland from adopting such reasonable police regulations as circumstances may require, even if there were no express declaration in the article that such reciprocal equality of treatment “shall not conflict with the constitutional or legal provisions, as well federal as state and cantonal, of the contracting parties.”
The requirement of a passport is merely a police regulation for establishing the nationality and identity coming into the [Page 1061] country, and it is a matter to be decided by each state according to its political and social conditions. In Switzerland, as you say, not only are passports required of foreigners residing there beyond a certain period, but Swiss citizens going from one canton or commune to another are strictly required to deposit with the local authorities properly authenticated evidence of citizenship.
In this manner there is established a system of registration of all persons, both citizens and foreigners, and to this no reasonable objection can be made. It is true that in some cases, as in that of the bureau of nationality in Mexico, where it was formerly sought to make the failure of a foreigner so to register the ground of a denial of his right to call upon his Government for protection, which amounted to imposing a forfeiture of nationality as a penalty for failure to register, this Department has been constrained to protest, and has taken the ground that a state can not by its municipal laws take away the rights to which a foreigner is by international law entitled, among which rights is that of the protection of his Government. But it has never been maintained that a municipal law, merely requiring registration as a condition of residence, is internationally invalid.
There still remains for consideration the question whether the Swiss authorities may require citizens of the United States to renew their passports two years after issue, in view of the regulations of this Department.
In its regulations made pursuant to law, and in its special instructions to our ministers, this Department has for many years acted upon the rule that passports are not good for more than two years from the date of issue. Formerly, the period of vitality was only one year, and on May 9, 1870, Mr. Secretary Fish, in a circular note to foreign ministers, made complaint that many of the consuls of foreign governments residing in the United States were in the habit of visaing passports of citizens of the United States which had been issued for more than a year. In that note Mr. Fish said that as the regulations of the Department, made pursuant to law, required “that every passport to be valid must be renewed * * * at the expiration of one year from its date, and that a revenue tax of $5 shall be paid on each passport at the time at which it shall be issued or renewed, it is essential to the protection of the revenue from this source that foreign consuls should abstain from attaching their visa to passports * * * which are a year or more old, when presented for visa.”
This note, it is to be observed, requests that the officers of foreign governments shall not recognize as valid American passports beyond a certain age.
On the 5th of February, 1878, Mr. Secretary Evarts, in an instruction to Mr. Everett, chargé d’affaires at Berlin, said:
Upon that subject I have to inform you that applicants at the Department are uniformly advised that a passport is good for two years from its date and no longer; and that persons applying to an American representative abroad will be required to furnish satisfactory evidence that they are still entitled to protection of the United States. It is considered that indefinite residence abroad might be quite as much encouraged by the possession of a passport good for an indefinite period as by the operation of the rule which forces the party to submit his case anew to the careful scrutiny of the legation as often as once in two years, with suitable evidence bearing upon his claim to continued protection.
In the printed personal instructions to the diplomatic agents of the United States there is the following, direction:
No visa will be attached to a passport after two years from its date. A new passport may, however, be issued in its place by the proper authority, as hereinbefore provided, if desired by a holder who has not forfeited citizenship.
These provisions are repeated in an existing circular of this Department, containing general instructions in regard to passports.
In section 174 of the Consular Regulations of the United States, issued in 1881 and unrevoked, there are the following provisions:
A passport is good for two years from its date and no longer. No visa will be attached to a passport after two years from its date.
It is thus indubitable that under the regulations and practice of this Department passports are not regarded by the Department as valid after two years from the date of their issue. The reasons for this rule have already been disclosed. In the first place, there is the matter of revenue. In. many cases the fee for the renewal of passports is the only contribution made by citizens of the United States residing abroad to the support of this Government, whose protection they claim and enjoy, together with the privileges, immunities, and exemptions incident to their American citizenship. In the second place, this Government, while granting passports, is entitled to place them under such restrictions as to time as would in part preclude them from being made under changed circumstances the instrument of imposition either upon itself or upon foreign governments.
Now, as this Government has announced and acts upon the rule that its passports are not valid after two years from the date of issue, this Department is unable to perceive upon what ground it could ask foreign governments to recognize those passports as valid after that period, provided there has been opportunity to obtain new ones. A passport is evidence of citizenship, and as such is entitled to recognition as long as it remains in force; but if this Government decides that its passports are not valid for more than two years, it must be held to mean that they are not to be internationally used as evidence of citizenship after that time; and this being so, the Department is unable to see how it could ask the authorities of foreign countries, in which alone passports are required or intended to be used, to recognize them as valid evidence after they have ceased to be so by our own express regulations.
The refusal of a foreign government, under these circumstances, to recognize an extinct passport is not a denial of American citizenship or of any of its incidental rights, but merely a requirement of proper evidence of such citizenship.
In the case of Switzerland this requirement is strengthened by Article IV of the treaty of 1850, in which it is provided that passports or other evidences of nationality of citizens of the two countries shall be “furnished or authenticated by a diplomatic or consular agent of their nation residing in the one of the two countries, which they wish to inhabit.”
It has been seen that an American passport more than two years old can not be authenticated either by a diplomatic or a consular agent of the United States; consequently, if this Department should contend that the Swiss authorities ought to recognize American passports more than two years old, it might be placed in the position of asking those authorities to recognize as valid passports neither furnished nor authenticated by the diplomatic agent or by any consular officer of the United States in Switzerland.
You will therefore inform citizens of the United States seeking instruction on the subject that, under the regulations of the Department of State, made pursuant to law, passports. are good for two years from their date, and no longer, and that this Government can not ask foreign governments to recognize American passports more than two years old.
I am, etc.,