Mr. Uhl to Mr. Hengelmüller .
Washington , May 8, 1895 .
Sir: I have the honor to acknowledge the receipt of your note of the 1st instant, with which, by direction of the Imperial and Royal ministry of the national defense at Vienna, you send me an original passport, No. 3897, issued by this Department on the 7th day of August, 1893, to Frederick Hillebrandt, “for the purpose,” as you state, “of ascertaining whether Friedrich Hellebrand has really become a citizen of the United States, and whether he is consequently to be exempted from the performance of military duty, and from the consequences of the nonperformance thereof, in pursuance of Article I, paragraph 1, and Article II, final paragraph, of the treaty between Austria-Hungary and the United States of America which was concluded September 20, 1870.”
No previous instance is recalled, certainly not in late years, of such a reference on the part of the Austro-Hungarian Government, and it would be much regretted were the present instance to form a precedent. The passports issued by the Secretary of State, under the seal of this Department, are evidence of the facts therein certified, and they would fail of the purpose for which they are issued were foreign authorities at liberty to disregard them until certified anew by the authority which issued them.[Page 10]
In many recent instances, and notably in Austria-Hungary, this Government has had occasion to remonstrate against the embarrassment to, and even the deprivation of, personal liberty to which the holders of United States passports have been subjected by the action of the local authorities in detaining them while their passports were held for investigation or sent to the United States legation in the country for attestation of the facts therein certified. Protracted correspondence on the subject was held between the American legation at Vienna and the Imperial and Royal foreign office in 1893 and 1894, in the course of which the United States minister was instructed to convey to your Government the views here entertained touching what appeared to be the insupportable assumption of the Austro-Hungarian officials that a foreign passport is valueless as evidence per se, an assumption which, as Mr. Gresham instructed Mr. Bartlett Tripp under date of September 4, 1893,1 “is wholly incompatible with the universally admitted doctrine that a state is the sole and ultimate judge of the citizenship of its own dependents, and is, in its sovereign capacity, competent to certify to the fact. A passport, in the eye of international law, is one of the highest sovereign acts of a state whereby it attests that the holder is a lawful citizen. In the nature of the case it must be assumed to be prima facie valid until shown to be otherwise. This Government can be satisfied with no less degree of respect in Austria-Hungary for its sovereign acts than it shows in the United States for the like sovereign acts of Austria-Hungary.”
In Count Welsersheimb’s note to Mr. Tripp of August 18, 1894, your Government admits “the necessity that papers issued by the competent authorities of one country should be respected and recognized by the authorities of a third state as long as these documents do not bear unmistakable proofs of having been counterfeited or otherwise obtained by fraud.”
This last reservation is responsive to the proposition of the United States Government that the prima facie evidence of a verity supplied by the passport might be traversed by allegation of fraud, in which case this Government would hold itself ready to investigate the allegation when duly presented, and act as its duty might require.
It was supposed that the question at issue was definitely set at rest by this correspondence. Your present note, however, revives it in a modified form, for in place of the ex parte and independent municipal investigation of American passports by the Austro-Hungarian authorities, against which we have heretofore had just ground to remonstrate, a passport bearing the signature of the Secretary of State and seal of this Department is now sent to the authority which granted it “for the purpose of ascertaining whether Friedrich Hellebrand has really become a citizen of the United States.”
No imputation of fraud or irregularity in connection with the passport in question is presented to this Government for investigation and action—nothing is asked save a renewed attestation of the fact already certified by the passport itself, that the bearer is a lawful citizen of the United States and as such entitled to the rights guaranteed to citizens by the existing treaties between the United States and Austria-Hungary.
This Government stands ready, as assurance has been before given, to cooperate in the investigation of any case where reasonable evidence of the fraudulent use of a United States passport may be forthcoming, [Page 11] and to that end the legations of the United States abroad will cheerfully render assistance, so far as an examination of the authenticity of the document is concerned, whenever there may be good ground to believe that a passport has been forged or tampered with, or is held by another than the person to whom it was lawfully issued, or was procured by fraud.
Having thus stated the views of this Government in the premises, and assuming that the Friedrich Hellebrand to whom your inquiry relates is the same as the Frederick Hillebrandt mentioned in the passport you inclose, I may state, without prejudice to the position herein taken that the passport in question was duly issued by this Department upon proof that the applicant had been lawfully naturalized after more than five years’ residence in the United States. Our statutes penalize the issuance of a passport to any person not a citizen of the United States.
Returning the passport of Frederick Hillebrandt as requested, I avail, etc.,