§ 216. Regulations Governing Issuance.

Up to 1856 the issuance of passports was not regulated by law. The loose methods of issuance by the Department of State, as well as by governors of states, state officials, and even notaries public, brought about complaints of foreign governments. Some of them refused in fact to recognize the documents issued by local authorities. Thereupon, the attempt was made by statute to lay down a definite practice. By the act of August 18, 1856, as embodied in § 4075 of the Revised Statutes, the Secretary of State was authorized to "grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by such diplomatic or consular officers of the United States and "(as amended by the Act of June 14, 1902, 32 Stat. at L. 386) by such chief or other executive officer of the insular possessions of the United States" and under such rules as the President shall designate and prescribe for and on behalf of the United States."

The frequently expressed demand of the United States that foreign countries accept the American passport as final evidence of citizenship has resulted in the exercise of great care in its issue and insistence upon compliance with stringent requirements by the applicant to insure the authenticity of his citizenship. The requirements of the Department of State for the issuance of a passport 2 are considered hereafter. The primary condition is the proof of citizenship, which in the case of native citizens, owing to the absence of birth registration requirements in most of the states of the country, consists usually of an affidavit only and in the case of naturalized citizens or those

1 Moore's Dig. III, 862.

2 The rules governing the granting and issuing of passports in the United States are revised by each incoming administration. Those in force in 1896 are set out in the American Passport, 59 et seq.; those of September 12, 1903 are used by Professor Moore in his chapter on passports and by Van Dyne in his work Citizenship of the United States, Rochester, 1904, 223 et seq. The rules of March 10, 1913, adopted by the Wilson administration, were revised and amended in important particulars by those of Nov. 13, 1914 and Jan. 12, 1915 (in force Feb. 1, 1915), the changes being necessitated by the exigencies arising out of the European War. The "Rules" issued Jan. 12, 1915 and the Instructions to Diplomatic and Consular Officers of Dec. 21, 1914 (on the basis of the rules of Nov. 13, 1914), are printed, infra, §§ 219,

claiming citizenship through the naturalization of another, the submission of the certificate of naturalization. In certain cases secondary proof of naturalization is admitted. Under the rules of January 12, 1915, a native citizen born in a place where births are recorded, is expected and may be required to submit a birth certificate with his application.

In 1907 an important change was made in the rules governing the issuance of passports. The practice of issuing passports not only by the Department of State, but by embassies and consulates of the United States in foreign countries, had seriously impaired the control of the Department over its passports and the individuals in possession of them. This was especially the case owing to the practice of the embassies in issuing successive passports to the same individual while abroad, who could thus for long periods of time supply himself with these proofs of citizenship without undertaking any of the duties of citizenship.2

By an instruction of Secretary of State Root of April 19, 1907, which quoted the Diplomatic Instructions and Consular Regulations, as amended by the executive order of April 6, 1907, it was provided that passports could not, after July 1, 1907, be issued by diplomatic or consular officers

"if the applicant has time to apply to the Department of State and await its reply. Where inconvenience or hardship would result to a person entitled to receive a passport unless he received it at once, a diplomatic officer, or a consular officer who shall have received authority to do so from the Secretary of State, may issue to such person an emergency passport, good for a period not to exceed six months from the date of issuance, and to be used for a purpose which shall be stated in the passport."

On satisfactory proof of citizenship and title to the passport submitted to the diplomatic or consular officer, the application was to be forwarded by him to the Department of State and the passport

'The American passport, p. 155, et seq.; see also with reference to the means of proof necessary for persons claiming citizenship through the naturalization of parents, For. Rel., 1901, pp. 206-208; Mr. Hay, Sec'y of State, to Mr. Porter, October 14, 1902, For. Rel., 1902, p. 420.

* Report on the subject of citizenship, expatriation and protection abroad, House Doc. 326, 59th Cong., 2nd sess., p. 14.

issued from Washington. The issue of emergency passports is also restricted to cases in which the applicant is about to proceed to a country to obtain admission into which a passport is obligatory. Local authorities frequently require the possession of a passport as a condition of sojourn in the country. Emergency passports may be issued to satisfy these local requirements only in case the authorities will not accept a certificate of registration, which in accordance with paragraph 172 of the consular regulations and the provisions of the execu tive order of April 8, 1907, may be issued by consuls on the registration by American citizens of their citizenship, the certificates being good for one year only and renewable.2

Diplomatic and principal consular officers were, until January, 1915, authorized to extend for a period of two years a passport issued by the Department, the life of which, limited to two years, was about to expire. A passport which had expired could not be extended. No passports could be extended more than once, and emergency passports not at all. These provisions have been amended by the rules of January 12, 1915 (which will probably remain in force until the end of the European War) to the extent that a passport is now valid for six months only, and may be renewed not more than twice, for a similar period, by a diplomatic or principal consular officer, on presentation of a sworn statement of the names of the countries which the citizen expects to visit and the objects of his visits thereto.

The effect of these regulations is to centralize control in the Department of State over every bearer of a passport, in that it provides more stringent scrutiny of the authenticity of citizenship and its continued conservation by citizens abroad. It enhances the probative weight of a passport by abolishing many of the abuses which made the possession of a passport so easily possible by persons who were not bona fide citizens of the United States.

Passports since 1845 have always been limited in duration. Up to 1845 passports were either general or granted for a specific voyage.

1 Circular "Issuance of Passports," April 19, 1907, For. Rel., 1907, p. 13. The numerous conditions for the issue of certificates of registration may be found in the Circular "Registration of American citizens," April 19, 1907, For. Rel., 1907, p. 6.

The latter class terminated when their purpose was accomplished, but the former contained no notice of their limitation. In that year, however, by a Department circular, a new passport was required each time a citizen left the country, to be renewed at least annually, the time limit of the passport up to 1873 being one year. By the circular of September 1, 1873, the duration of the passport was extended to two years from the date of issuance.1 The following reasons have been advanced to justify the short limitations: first, the fee is the only contribution made by many citizens abroad; secondly, the government is entitled to place its grant under such conditions as would preclude it from being made the instrument of imposition either upon itself or upon foreign governments; and thirdly, to secure at reasonable intervals evidence of the conservation of American citizenship by persons residing indefinitely abroad.2 Under the recent "war regulations," the duration of the passport is limited to six months, renewable, not by the Department, but by a diplomatic or principal consular officer, on the presentation of certain sworn evidence, for two periods of six months each.

Besides the regular passport issued to citizens, the issuance of other documents in the nature of passports has at times been authorized, largely to comply with requirements of local law abroad, or to cover the cases of such persons as could not comply entirely with the requirements for the issuance of a regular passport. Thus documents were issued to an unnaturalized American Indian abroad, certifying his status and name and adding that he is "a ward of the United States and is entitled to the protection of its consular and other officials," 3 and to free American negroes before the enactment of the Fourteenth Amendment, stating that they were "free persons of color born in the 1 The American passport, pp. 54, 75; Moore's Dig. III, 977 et seq.

Mr. Bayard, Sec'y of State, to Mr. Winchester, min. to Switzerland, March 28, 1887, For. Rel., 1887, p. 1060, and Mr. Hill, Asst. Sec'y of State, to Mr. Clarke, Nov. 4, 1898, For. Rel., 1899, p. 88, quoted in Moore's Dig. III, 981, 982.

On the question of fees for passports, which have varied from time to time but are now fixed at one dollar, see Moore's Dig. III, 918; The American passport, 72; Rule 2 of Rules governing the granting and issuing of passports, March 10, 1913, and Rule 3 of Rules of January 12, 1915.

'Mr. Sherman, Sec'y of State, to Mr. Breckinridge, Amb. to Russia, April 3, 1897, printed in The American passport, 146 and in Moore's Dig. III, 879.

United States" and invoking for them all lawful aid and protection.1 These documents were not considered as passports. Certain documents known as letters of protection were issued until 1869, when, by a circular of Secretary of State Fish, their issuance was prohibited.?

Protection papers were formerly issued occasionally by consuls in order to certify to the citizenship of the bearer, and thus meet the requirements of local law. The Department of State has forbidden consuls to issue such papers. To citizens, the Department issues passports only and it has been said in various forms and on many occasions by our secretaries of State that the passport is the only attestation of American nationality which a United States legation is authorized to give.3 The purpose of local protection papers is now served by the consular certificate of registration. Mr. Seward, Secretary of State, stated that "what are technically known as protection papers are used in our international intercourse with uncivilized nations." 4

§ 217. To Whom Issued.

In theory, the passport as a certificate of citizenship and protection, can be issued to citizens alone, and with a few exceptions, this has been the policy of the United States. Before the Act of 1856, which confined the issuance of passports to citizens, a few such exceptions had been made, and again by the Act of March 3, 1863 (12 Stat. L. 731, 754), passports were authorized to be issued to aliens, who had made a declaration of intention, and who were, under specified conditions, liable to military duty; but this Act was repealed in 1866 (14) Stat. L. 54). The term "citizens" has not been extended to include citizens of the states, but is confined to citizens of the United States.

1 Mr. Clayton, Sec'y of State, to Mr. D. W. C. Clark, Aug. 8, 1849, Moore's Dig. III, 880. Forms of such documents are to be found in the American passport, 15 et seq.

2 Moore's Dig. III, 896.

See quotations from Mr. Seward, Mr. Bayard, Mr. Blaine and Mr. Foster in Moore's Dig. III, 857, 858.

Mr. Seward in an instruction to Mr. Asboth, min. to Argentine Republic, March 27, 1867, Moore's Dig. III, 857; see, however, the British practice which authorizes British consuls to issue protection papers for use with the local authorities, Notification of Foreign Office of August 22, 1898, 90 St. Pap. 1176.

The American passport, 44; Moore's Dig. III, 871.