Mr. Adee to Mr. Conger .

No. 204.]

Sir: I have received your dispatch No. 230 of the 11th ultimo, with which you transmit copies of correspondence between the legation and the consul at Chefoo concerning your refusal to issue passports or travel certificates to certain women of disreputable life at Port Arthur, who it would seem seek those papers to enable them to continue to reside there.

While the statute vests in the Secretary of State the discretion to issue passports to citizens of the United States, which discretion has been delegated under appropriate regulations to the agents of this Department in foreign countries, the exercise of that discretion has been generally confined to requiring full establishment of the citizenship of applicants and of their conservation, in good faith, of the character of citizenship, to the end that the statute may be obeyed and that passports may issue to none but citizens. Their conduct or deportment has not been made the subject of discretionary regulation so far as the granting of passports is concerned. Their acts, if wrongful, are matters for the cognizance of the law of the place of their sojourn, or of the law of the United States, if any statute be applicable to their case. Even when accused of crime or offense in a foreign land, a citizen of the United States would be entitled, in case of need, to such certification of his status as a passport affords. There have been instances in the past where the Department has exercised its discretion to the extent of directing the refusal of passports to those whose conduct in another country was violative of the laws of the United States, as when, several years ago, passports were ordered to be denied to emissaries of the then polygamous Mormon sect who were seeking to make proselytes in Germany, but such instances have been rare, and this course could obviously only be pursued under distinct warrant of law. The Federal statutes indeed take cognizance of questions of morality in the case of aliens immigrating to our shores or applying for admission to citizenship, and this may have been deemed by you applicable, by analogy, to the case in point. But these statutes [Page 187] do not reach the cases of citizens returning within the jurisdiction of the United States.

The Department would not hold itself authorized to prescribe any conditions or qualifications of title to claim a citizen’s passport other than those prescribed by law. Unless the refusal of a passport can be predicated on authority of law or of diplomatic instructions and regulations made pursuant to law, a passport may not be withheld from a bona fide citizen.

The foregoing considerations make me hesitate to sanction the action you report lest it might be found to work deprivation of rights of citizenship otherwise than in pursuance of judicial course, and so inflict a penalty without the jurisdiction to try and sentence.

In this conclusion I but follow your statement to Mr. Fowler, that, “As a general rule, it would hardly do to make moral character a basis for the issuance of passports.”

Your direction to the consul, however, does not amount to a refusal of a passport upon application actually made, but only directs him to decline to forward applications, and, consequently to give travel certificates. As to the travel certificates, their issuance by the consul would appear to be discretional, Port Arthur being in territory administered by Russia and not by China.

Under all the circumstances, therefore, I am inclined to take the view, both in the interest of the right of American citizens and because of the necessity for a passport in a place under Russian jurisdiction, that in case you receive applications from these two women, either through the consul or themselves directly, made out properly, you should issue the desired passports.

I am, etc.,

Alvey A. Adee,
Acting Secretary.