The Passport in America: The History of a Document (25 page)

While this is possibly a strategic misreading of the document on the part of von Hülsemann (as may be his understanding of it as conferring naturalization), it does highlight that the practices of documentation were still in formation. Brown was no diplomatic novice—he had held various positions at the legation since 1835—and his reputation as a fine translator of Turkish literary classics into English suggests he was perhaps more intelligent than many administrative assistants.
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However, while he had acquired a noteworthy reputation in the classical literary world, Brown apparently struggled to be literate in the changing world of modern documentation. His action in producing a copy of Koszta’s declaration was likely the result of the infrequency of situations in which documented identity mattered, or perhaps simply the novelty of documentary authority in a world of diplomatic accommodation and trust. Whatever the causes of Brown’s actions, Austrian officials were able to take advantage of the contested formation of a new documentary regime and his apparent lack of understanding about how authenticity and authority were increasingly being translated onto official documents. The documentation of individual identity depended on the successful translation of an individual’s subjective statement into a legal
and administrative fact through a document that contained evidence of the presence and the authority of the appropriate official. The certificate of declaration was a document generated by the judiciary, not the executive, branch of the government to which Brown belonged as an employee of the State Department. In the developing documentary regime of verification, an agent of the executive branch was denied the authority to record a declaration of intent. A diplomatic official was now ideally meant to do no more than verify the document’s authenticity. Individuals’ specialized positions within an established hierarchy underwrote their authority; an official’s authority was circumscribed by his or her duties, and not a consequence of his or her reputation or personal character. Brown’s actions indicated he was unaware of (or rejected) how this “logic of location” produced a particular kind of authority. He seemingly believed that his reputation as a government official would carry sufficient authority to produce a “truthful” documentary record, to translate the fact of Koszta’s declaration into a document. But Brown could only offer the date of Koszta’s declaration on the document, not the evidence that gave it the legal significance that a documentary regime demanded—the name of the courthouse and the signature of an official with a title that indicated his authority to witness and record the declaration, which could trace the origins of the document to the time and place when the event occurred.

Koszta carried a fourth document to verify the legality of his relationship to the United States. Upon his request, a New York City notary public, Joseph Nones, had issued Koszta a document certifying his declaration of intent.
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Although it was issued outside of any federal or diplomatic channels, Brown was suitably impressed with this document and the category of “affiliated citizenship” it bestowed on the bearer.
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Beyond Brown’s comments, this document received little attention. This is surprising because in large part the controversy turned on the exclusive right of the U.S. government and its representatives to determine U.S. citizenship. While this rhetoric was directed against the claims of the Austrian Empire, the notarial certificate that Koszta carried with him is evidence of an internal challenge to the federal government’s exclusive claim to document its citizens. The State Department did contact Nones, but not until the following year, in response to a complaint from the U.S. minister in London about Nones’s so-called “passports.”
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Nones responded that, as a notary public, he believed he was entitled to issue certificates “proving existing facts—to be noticed abroad.” He argued further that he issued this particular certificate because of the
inadequate documentation produced by the courts. Nones contended his “Notarial Certificates of Affiliation and Identification” countered the possibility of fraud created by the “loose and imperfect” certificate of declaration issued by the courts. He believed his documents reduced the possibility of fraud as they “exemplify facts by a careful description of the bearer’s person, signature &c.” Nones also claimed he clearly outlined the purpose and function of his certificates to applicants, “impress[ing] upon persons the fact that no ‘passports’ are issued in America, but ‘Certificates of Citizenship’ by the State Department, and Certificates as foresaid, by me as a notary—and similar ones by the Mayor of our city and by other Mayors and State Officers which abroad are called ‘passports.’ “He enclosed a copy of one of his certificates, duly stamped and signed by foreign officials, to illustrate that they fulfilled their intended function of entitling “the possessor to respect in his position.”
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In reply, Secretary of State Marcy again requested that Nones stop issuing such certificates, especially to noncitizens. At this point these certificates were not illegal, so Marcy could merely request. However, he also challenged the distinction between a passport and a certificate of citizenship:

You have erred in stating to persons as you say you have done that no passports are issued in America, but only certificates of citizenship by the State Department. Although the passport of this department is substantially only a certificate of citizenship, still it is a passport and believed to be almost identical in form with that issued by other governments. The head of the Department is the only officer in the United States who can be recognized by the authorities of foreign governments.
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A passport structured as a letter from one government authority to another required the mutual recognition of specific government officers, and in the United States, in the absence of other documentation, the passport happened to also serve as the only evidence of citizenship issued by the government. Therefore, although Nones’s “passport” incorrectly stated that a declarant had declared allegiance, it was his request to foreign officials that “all whom it may concern” permit the bearer “safely and freely to pass” that made the document a passport; in this case a greater threat to the authority of the State Department than claims to citizenship. However,
these documents were perfectly legal and would be for another three years, at which time Congress established that the State Department was the only authority entitled to issue passports; even after this Nones maintained his right to issue such documents.
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The initial congressional intervention in the issuance of passports was a response to the Koszta controversy.
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On August 18, 1856, as part of an act that reorganized the diplomatic and consular services, Congress declared that passports could only be issued to citizens. It also gave the secretary of state the sole authority to issue passports and made it illegal for any other authority to issue a passport or a document in the nature of a passport. The act stated the secretary of state “may grant and issue passports.”
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Although passports could now be issued only to citizens and exclusively by the secretary of state on a discretionary basis (“may issue”) they were still understood as prima facie evidence of citizenship. As outlined in subsequent diplomatic correspondence the State Department remained adamant that “determination of the fact of citizenship is not an executive function. What is reserved to the executive is the use of its proper discretion as to the protection of a person abroad when the facts prima facie establish his citizenship by origin or naturalization, and the issuance of a passport is part of the exercise of that discretion.”
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Therefore, the refusal to issue a passport or to recognize a document issued outside of the State Department as a passport did not annul an individual’s citizenship. However, the discretion read into the department’s legislative mandate to issue passports became crucial to the development of the passport as a certificate of a very particular form of citizenship centered on a specific understanding of loyalty. The discretion granted to the secretary of state initially carried over to what constituted a passport application—the act did not specify the exact nature of the application process, but instead clarified that the president would proscribe the necessary rules. Until 1896 this was interpreted to mean that the State Department could simply issue instructions; that year a reinterpretation of the act meant subsequent passport application rules and amendments had to come as executive orders from the president.

With a passport law on the books the U.S. government was able to make use of passports in a time of crisis, as European governments had periodically done since the beginning of the nineteenth century. However in practice this
turned the U.S. passport into something closer to a travel permit. During the Civil War Secretary of State William Seward issued more stringent passport regulations than any the U.S. government would attempt to enforce until World War I. From August 1861 until June 1865, the arrival and departure of persons at U.S. seaports were subject to a series of regulations and the State Department issued circulars that specified passport requirements along the Canadian border.
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The federal government sought to use passports to manage the movement of military-aged males who might be leaving the country to avoid military service or arriving to fight for the South. With the exception of immigrants, everyone entering the United States had to have a passport, and nonimmigrant aliens had to have their passport visaed (signed) by a U.S. minister or consul. Everyone leaving the country had to have a passport, and those with non-U.S. passports had to have their passports visaed by the secretary of state. Within U.S. borders people could not pass the lines of the Union army without a passport. In all situations Seward requested the assistance of civil, military, naval, and municipal officials in the attempt to enforce demands for a passport. The additional requirement that passport applicants had to swear an oath of allegiance was a further manifestation of the articulation of loyalty and citizenship at the core of Seward’s Civil War passport policy. However, these passport requirements, issued under the authority of the 1856 act, were also accompanied by a suspension of part of that act to allow the granting of U.S. passports to nonnaturalized foreign-born residents or declarants. With this suspension, the State Department could issue passports to noncitizens who were eligible for military service but were leaving the country, having paid a bond. However, the issuance of passports to noncitizens meant that subsequent secretaries of state rejected so-called “Civil War passports” as evidence of citizenship, arguing that they were issued only as permits to leave the country.
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While the 1856 act enabled the federal government to use temporary passport requirements with some apparent success, the passport continued to be somewhat of a novelty for officials and travelers. The use of the U.S. passport frequently resulted in disputes centered on three key aspects of the 1856 act: the issuance of passports only to citizens, the sole authority of the secretary of state to issue passports, and the discretion read into that authority. In contrast to the passport’s wartime use at the border, the challenges and disagreements centered on the presentation or issuance of U.S. passports abroad. Many of these disputes originated in the uncertainties of U.S. citizenship law. The unsettled nature of the law made the problem
of verifying citizenship in a document even more problematic especially as both government officials and applicants often sought to turn the vagaries of citizenship to their advantage by exploiting whatever authority a passport might have as evidence of citizenship.