VII. INTERNATIONAL EFFECT. 1. EVIDENTIAL FORCE. § 525. "This Government has a right to ask that if citizens of the United States, who are traveling with regular passports, or what appear to be such passports, happen to fall under unjust suspicions, every facility will be granted to them to vindicate their innocence. The refusal to let friends communicate with them while under arrest, or to let them appeal to our consuls and ministers, was an illiberality of treatment on the part of subordinate officials that can not but be reproved by the Executive Government of Switzerland. It is expected that they will take proper steps to prevent this in future." Mr. Marcy, Sec. of State, to Mr. Fay, No. 16, Oct. 4, 1854, MS. Inst. Switz. "Your predecessor was instructed that we would not in any instance allow the sufficiency or supremacy of a passport to be questioned by Mexican authorities. Such a proceeding would clearly constitute an international case." Mr. Fish, Sec. of State, to Mr. Foster, No. 43, Oct. 31, 1873, MS. Inst. This instruction related to the action of the Mexican authorities in "A certificate of naturalization and the possession of a passport are presumptive proof, in the absence of other evidence, that the person named therein is a citizen of the United States. If he has not forfeited his right to be so regarded he remains such. The question in each case must be decided by the facts peculiar to it, and should be investigated and decided by the officer to whom the application is made. Where the facts have been investigated and doubt exists, a reference may be made to this Department.” Mr. Fish, Sec. of State, to Mr. Davis, Dec. 22, 1874, MS. Inst. Prussia, "The pretension of that Government [Mexico], too, to ignore the passport of this Department, and to require an inspection of the certificate of the naturalization of an alien, cannot be acquiesced in. You will distinctly apprise the minister for foreign affairs to that effect, and will add that this Government will expect to hold that of Mexico accountable for any injury to a citizen of the United States which may be occasioned by a refusal to treat the passport of this Department as sufficient proof of his nationality. "The assumption by the Mexican Government of a right to inspect and decide upon the validity of certificates of naturalization issued by these numerous courts in preference to receiving the proof afforded by a passport of this Department must be regarded as wanting in proper courtesy to the Government of a friendly power. "It may also be remarked that there are many citizens of the United States who were neither born such nor naturalized in the ordinary way. These were naturalized by treaties with foreign powers, and not a few of them by treaties between the United States and Mexico. If these should visit the Mexican Republic, they will have no such certificate of naturalization as is granted to natives of other countries naturalized here. The only guarantee of nationality in their case would be a passport from this Department." Mr. Evarts, Sec. of State, to Mr. Foster, June 16, 1879, MS. Inst. Mex. A passport and not a certificate of naturalization is the proper prima facie evidence of the holder's right to protection as a citizen of the United States while residing abroad. Mr. Olney, Sec. of State, to Mr. Risley, min. to Denmark, Nov. 28, 1896, In 1892 a person bearing a passport as Jacob Goldstein, a naturalized citizen of the United States, was arrested and imprisoned at Kharkov, Russia, under § 977 of the penal code, on a charge of having entered Russia with a false passport, it being alleged that his real name was Yankel Klotow. Subsequently the Russian legation at Washington presented Goldstein's passport and certificate of naturalization to the Department of State, with an inquiry as to their genuineness. The Department of State objected to this procedure, saying that as passports issued by the Secretary of State, under the seal of the Department, were "prima facie evidence of the facts therein certified," the purpose for which they were issued "would be defeated were foreign authorities at liberty to disregard them till certified anew by the issuing authority;" that "their examination and visé is properly the function of the legation of the United States in the country where the bearer may chance to be;" and that, in the case under consideration, while the ascertainment of the genuineness of the papers would neither prove nor disprove the alleged false impersonation of the bearer, the sending of them to Washington would seem to have restrained him of his liberty several weeks longer than if a seasonable application had been made to the legation at St. Petersburg for the desired information. In conclusion the Department said: "You may say to the minister of foreign affairs that where there may be good ground to believe a passport has been forged or tampered with, or is held by another than the person to whom it was lawfully issued, your legation will cheerfully render assistance so far as an examination of the authority [authenticity] of the document is concerned, and will, in case of need, refer the matter to this Department, but that otherwise it is the just expectation of this Government that its passports will be duly respected abroad as prima facie evidence of the facts therein stated, and that its validity is only to be traversed by competent proof." Mr. Foster, Sec. of State, to Mr. White, min. to Russia, Nov. 26, 1892, The Russian foreign office received these representations "in a very satis- "The real grievance in the case is the refusal of the Austro-Hungarian authorities to accord respect to the passport, duly issued by the lawful agencies of the United States, as prima facie attestation of the citizenship of the bearer, and therefore of his treaty rights. The passport and naturalization certificate of Benich have been equally disregarded by the judicial and military authorities, who seem to have been left free to take whatever course they chose, to independently ascertain the citizenship of the party. The Austro-Hungarian officials appear to proceed on the intolerable assumption that a foreign passport is valueless as evidence per se, and that the true citizenship of an alien found within Austrian jurisdiction is to be ascertained by some independent municipal investigation having no regard whatever to international obligations. This assumption 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. . It is neither incumbent upon the bearer to prove his citizenship by extraneous evidence at the will of the country of his sojourn; nor upon the certifying government to support its official attestation of the fact of the citizenship by collateral proof under the municipal requirements of another country. .. Should the Austro-Hungarian authorities have reason to believe that they [passports] are fraudulently held by others than the persons to whom they were lawfully issued, or that the holders have obtained naturalization in fraud of the laws of the United States, or claim privileges of citizenship not granted by the treaty of naturalization between the two countries, the facts should at once be brought to the notice of the Government of the United States through its accredited envoy in Austria-Hungary. It is hoped that the incident will have been satisfactorily terminated before this reaches you by the full release of John Benich; by the disavowal of the contempt shown by the Croatian authorities for the sovereign acts of the United States under our treaty with Austria-Hungary; by a frank expression of regret; and by the adoption of measures to prevent the recurrence of so vexations a class of questions and to dispose of any doubtful cases of citizenship by the cooperative action of the legation and the foreign office." Mr. Gresham, Sec. of State, to Mr. Tripp, min. to Austria-Hungary, Sept. 4, 1893, For. Rel. 1893, 23, 24. It appeared that Benich, a native of Croatia, who was duly naturalized in the United States, in conformity with the requirements of the naturalization treaty with Austria-Hungary of Sept. 20, 1870, was, while on a visit to his former home, arrested, about May 16, 1893, at Novi, in Croatia, and held for military duty. He had a passport issued by the United States legation at Vienna, April 15, 1893. The consular agent of the United States at Fiume intervened in his behalf with the local authorities, and particularly with the military recruiting commissioner at Fiume, who replied that “he does not recognize the convention of September 20, 1870, and neither the authority of the U. S. consular officer." The judicial authorities took the same view, and Benich was escorted to Pola to perform military service. The case was then taken up by the United States legation at Vienna, with the result that by a telegraphic order of the Hungarian minister of defense he was temporarily discharged from active service, but the final erasure of his name from the rolls was reserved till “full information" should be received as to his American citizenship, although his passport and certificate of naturalization had been submitted, in original and translation, to the judge at Novi, May 17, 1893. It was with reference to this situation that the foregoing instruction was written. (For. Rel. 1893, 15, 23.) See, also, the case of Edward Drucker, For. Rel. 1893, 1. In the case of Charles Mercy, alias Saul Moerser, an arrest was made on See Mr. Hay, Sec. of State, to Mr. Harris, No. 59, Jan. 5, 1900, MS. Inst. The views set forth in Mr. Gresham's instructions to Mr. Tripp of Sept. 4, 1893, supra, were fully communicated to Count Kalnoky by Mr. Tripp in a note of September 26, 1893. A full response was made by the Austrian foreign office, in which the principle contended for by the United States was fully conceded. The reply of the foreign office was based upon and embodied a report of the governor of Croatia, in which it was stated 1. That the members of the enrollment commission were not justified in refusing to recognize Benich's certificate of naturalization and passport, or in declining "to respect them as legal documentary proof," but that they should have taken cognizance of the papers and of the protest of the United States consular agent at Fiume and have cancelled Benich's enrollment, and then have submitted their suspicions as to the authenticity of the papers to the competent authorities for decision. 2. That by failing to show either to the papers or to the remonstrance of the consular agent the respect which was due them, they had rendered themselves liable for a violation of official duty, for which proceedings against them would be taken, although they had been governed by the belief that Benich was still a Hungarian subject and not by any intentional disrespect to the provisions of the treaty or to the representative of a friendly government. 3. That the position maintained by the United States as to the necessity that papers issued by the competent authorities of one country should be respected and recognized by the authorities of another unless the documents bore "unmistakable proofs of having been counterfeited or otherwise obtained by fraud," was fully concurred in, and that the governor of Croatia had instructed all his subordinate officers to act in future in conformity with this principle. Mr. Tripp, min. to Austria-Hungary, to Mr. Gresham, Sec. of State, Aug. 23, 1894, For. Rel. 1894, 36, 44, enclosing copy of a note of Count Welsersheimb of Aug. 18, 1894. In March, 1895, Solomon Czosnek, who bore a passport from the Department of State at Washington, was, on his arrival at Chrzanow, in Galicia, summoned to appear for military duty. In reply, he submitted his passport, and claimed American citizenship. On the 1st of May he was arrested, and held to answer the criminal charge of illegally abstaining from fulfilling military duty. To this charge he made the same answer. It appeared that he was born in Galicia in April, 1872, but emigrated in 1878 to America with his father, who was duly naturalized in 1888. Solomon was then sixteen years of age, and he continued to reside in the United States till January, 1895, when he revisited Austria on a matter of business. Mr. Tripp, minister of the United States at Vienna, in presenting the case to the |