a guaranty of protection, nor does the refusal to issue one indicate a definite forfeiture or withdrawal of protection. The passport is issued under statutory authority (Revised Statutes, §§ 4075, 4076), and while it has been held by the Attorney General that its issuance under the statute is discretionary with the Secretary of State,1 still the compliance by a law-abiding American citizen with the terms of the statute and the rules prescribed, will usually be followed by the issuance of the passport.2 The extension of diplomatic protection, however, being but slightly limited or controlled by statutory provisions, involves the exercise of a far wider discretion, so that the mere possession of a passport will under many circumstances not carry with it the right to diplomatic protection. Thus, the inequitable conduct of the citizen even though in possession of a passport has in several cases operated as a forfeiture of diplomatic protection and warranted its withdrawal by the government (infra, § 338 et seq.).

On the other hand, diplomatic protection is a more vital right than the claim to a passport and it has been extended in cases where compliance with statutory provisions as to the issuance of a passport was impossible, or where in the exercise of discretion the passport was denied. Thus, the title to a passport having generally been limited to citizens of the United States, the free American negro, (before the adoption of the Fourteenth Amendment), the unnaturalized Indian, and the natives of Porto Rico and the Philippines (between 1898 and 1900, and 1902, respectively), though unable to secure passports, were nevertheless protected abroad by the United States. Similarly, the Secretary of State having declined on grounds of public policy to issue a passport, it does not follow that diplomatic protection will be refused in case of need for it. Protection is not dependent upon a passport, and while its possession is in international law an evidence of citizenship, its absence is not fatal to protection.3

1 Knox, Atty. Gen., Aug. 29, 1901 (Chinese citizens of Hawaii-passport), 23 Op. Atty. Gen. 509, 511; citing Hoar, Atty. Gen., June 12, 1869, 13 Op. Atty. Gen. 72, 89. See also Moore's Dig. III, 919-923.

2 Mr. Hay, Sec'y of State, in Circular-Passports for persons residing or sojourning abroad, March 27, 1899, For. Rel., 1902, pp. 1, 2.

3 Memorandum of Solicitor of the State Dept. in case of J. H. Brown, Jan. 2, 1907, printed in For. Rel., 1907, II, 1080.

Under the rules governing the issuance of passports it will be refused where desired to further an unlawful or improper purpose.1 The causes of refusal to issue passports to citizens are many and depend upon considerations applicable to individual cases. It has been refused to an American citizen in Egypt engaged in blackmailing projects and in the endeavor to disturb the relations of this country with the representatives of foreign countries. Yet the United States would protect such an individual in his right to a fair trial and just treatment.

Thus, while it seems clear that the right to a passport and to diplomatic protection do not entirely coincide, it is, nevertheless, true that as a general rule the issuance of a passport will carry with it the protection of the government and its refusal may be interpreted as a denial of protection. The cases in which its issuance has been refused on the ground that protection is not properly due will be considered hereafter under the head of limitations on protection (infra, § 302 et seq).

The passport and the certificate of registration are practically the only documents issued by the United States operating internationally as a primary evidence of the citizenship of its citizens abroad and of their right to diplomatic protection. Other documents have been occasionally issued, as, for example, safe-conducts, issued in war time, letters of protection, documents in the nature of safe-conducts issued to American vessels, sea-letters, and particularly, so-called special passports, issued to officials travelling abroad on public business, which emphasize the personal character or position of the individual rather than his nationality.3

1 Rules governing the granting and issuing of passports in the United States, Sept. 12, 1903. This clause has been omitted from the "Rules" of March 10, 1913, Nov. 13, 1914 and Jan. 12, 1915, but the principle is in no wise changed. Mr. Hill, Ass't Sec'y of State, to Mr. Clarke, Nov. 4, 1898, For. Rel., 1899, p. 88.

2 Case of Waldberg, Mr. Wilson, Act'g Sec'y of State, to Mr. Beaupré, April 27, 1907, For. Rel., 1907, II, 1083.

3 The American passport, p. 7 et seq., in which various forms of special passport, issued from time to time, are set forth. See also Moore's Dig. III, 856, 1001–1003. Safe-conducts in a form similar to special passports, have been issued occasionally to aliens. See Moore's Dig. III, 1002. For passport regulations in time of war, see Moore's Dig. III, 1015 et seq.

§ 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

1 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 executive 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.

2 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.