The Passport in America: The History of a Document (28 page)

In reviewing an application to renew a passport, ministers and consul-generals had to establish that the applicant manifested a clear intention to return to the United States, where subsequent residence would provide evidence of loyalty. This demonstration gradually took the form of applicants swearing in front of a diplomatic official that they would return to the United States within two years—that is, before their new passport expired. While one official abroad argued that this was something that “might be said to come under the class of obligations denounced by the law for uncertainty,”
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officials in Washington disagreed, at least in the realm of diplomatic correspondence. The department assured another diplomat that it “trust[ed] to the oaths of the applicants and his witnesses, as in reality it is obliged to do, unless extraneous circumstances suggest the statement to be false.”
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Diplomatic officials were further instructed to renew passports only when an applicant presented “competent evidence” that they possessed the “state of mind” to return; that is, when “the honesty and good faith of this intention shall satisfactorily appear.”
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The necessary “state of mind” could be considered absent by “the patent circumstances of… continued domicile abroad.”
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Beyond this, the State Department did not demand definitive evidence of the actual desire to return in the form of a ticket or fixed date of travel. Instead, its officials abroad were instructed to assess “the manifestation of a fixed intention to return within some reasonable time.”
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The downplaying of an actual date stemmed from the primacy given to the specifics of any case: “It is obvious that no inflexible rule fixing a permissible period for residence abroad can properly be laid down, since the intent to return may actually exist in one case for many years after leaving the United States, and in another case may be nonexistent as soon as a person leaves our shores.”
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In the case of an
elderly man of poor health who had not lived in the United States for forty years, a secretary of state advised that the specific facts in this case “might properly operate to produce a lenient construction of the requirement of definite intention to return to the United States. However, being on the spot you are the best judge of whether as a fact, Mr. Bernheim has forfeited a right to the protection of the U.S., and should consequently be definitely refused a passport.”
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Face-to-face assessment remained an important, if not the primary, mode to assess the ongoing possession of full and substantial citizenship. But with the regular change of secretaries of state, no consistent policy developed. While some secretaries of state sanctioned a liberal construction of passport regulations to privilege the word and judgments of the State Department’s overseas officials, others still emphasized that these officials should not treat the declaration of intention to return as “an empty phrase.”
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However, in practice, subsequent secretaries of state used Fish’s 1873 letter to President Grant to generate a set of “general principles” to compensate for the lack of “fixed rules.”
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Specifically referring back to the letter, late NineteenthCentury diplomatic correspondence isolated three situations in which citizens living abroad were considered exempt from expatriation regardless of the length of their absence from the United States—ones involving health, religion, and commercial activity. The citizens in these circumstances were determined to be loyal because, through their actions abroad, they were considered to be contributing to the development of U.S. society in either the short or long term. In this manner, the State Department utilized its right to refuse passports in order to police what it defined as practices of good (and bad) citizenship. A small exempt category was constituted by people who needed a long-term stay abroad to recover from illness; the assumption existed that, once recovered, they would return home to become productive citizens.
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A second, slightly larger category, was that of missionaries. Passports were granted to missionaries living abroad long-term for two reasons; first, that they were pursuing “their religious calling” by attempting to convert the “uncivilized” world to Christianity, and second, because missionaries living indefinitely in a “semi-barbarous country” had to remain U.S. citizens “since obviously they [could] not become subjects of the native Government without grave peril to their safety.”
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The largest group of people the State Department excluded from expatriation were citizens living abroad long-term who could claim an ongoing economic relationship to the United States. These economically determined good citizens tended to be businessmen living abroad—those who worked
for an “American business house,” not for a “local calling.”
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From the 1860s, when William Seward became secretary of state, the State Department maintained sympathy for business abroad. Seward and others perceived the establishment of U.S. businesses abroad as an informal form of economic penetration into an international market in which the forces of industrialization had reorganized the frontiers of labor migration and export distribution.
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The resulting conception of the world had at its core an economic vision that determined the actions of State Department officials abroad. Therefore, the work of these citizens was considered to “be essential to the maintenance of some of our great industries.” Such citizens were to be treated as “if they were on a mere transient visit of inquiry,” no matter how long they remained abroad.
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This was in contrast to a person whose claim to citizenship was considered dubious because in the words of a secretary of state his “moveable wealth is purposely placed where it may never contribute to the national necessities, and his income is expended for the benefit of a foreign government and his accumulations go to swell its taxable wealth.”
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Outside of expatriation, the State Department also deployed its policy of discretionary issuance both to promote good behavior and to discourage behavior that could be considered inappropriate. The latter situations involved “dubious citizens” who in some way had deviated from the acceptable Anglo-Saxon, protestant foundations of responsible republican citizenship. The idealized citizen remained a white property-owning male, the head of a productive household. Throughout the nineteenth century, passport policy encouraged this ideal through the issuance of one passport per family or household that traveled abroad. A man’s wife and his minor children were included on his passport “inasmuch as they necessarily and legally share the status of the husband and father.”
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While women could obtain a passport (“the sex of the [applicant] is immaterial”
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), as noted earlier, most wives traveled without any documents, instead being identified on their husband’s passport by the phrase “and accompanied by his wife.” Officials often appealed to efficiency and the savings of multiple passport fees to actively encourage a family to travel together.
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However, wives and adult children could carry their own passports, though “reasonable cause” had to be shown before they would be issued, such as “the intended residence of one of a family in a foreign land.”
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The family traveling abroad often did so as a household, taking servants with them, who, prior to 1856, were also noted on passports. However, following the 1856 act, these servants could only be added to a passport if they could prove they were U.S. citizens.
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A more explicit attempt to police a particular vision of the family is evident
in the decision not to grant U.S. passports to Mormons, a decision that is the subject of a brief but tantalizing correspondence from 1886. Thomas Bayard, the secretary of state at the time, clarified that “inasmuch as polygamy is a statutory crime, proselytism with intent that emigrants should live here, in open violation of our laws, would seem to be sufficient warrant for refusing a passport.” He, therefore, instructed officials not to issue passports to “emissaries of the polygamous Mormon sect who were seeking to make proselytes” in Europe.
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However, officials did not want the passport to be perceived as explicitly enforcing particular moral codes. Alvey Adee, after the discussion of discretionary passport policy quoted earlier, explicitly clarified that although Congress had granted the secretary of state discretion, the department had no jurisdiction to make “conduct or deportment” a basis for refusing passports. Adee made these comments in an instruction to officials in China in 1899; moral character had become a point of interest for officials after federal immigration laws listed morality as a factor in determining the admissibility of immigrants to the United States. Adee informed the minister in Beijing he had to accept passport applications from two known prostitutes if the applications were “made out properly.” But in his instruction Adee did not condemn the subsequent decision by the consul not to forward the two women’s passport applications to be issued at the Beijing legation, because the applicants apparently wanted “travel certificates” required for Russian territory.
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In this manner, it seems, department officials could broaden the statutory jurisdiction over passport issuance by utilizing a bureaucratic and administrative structure created to “objectively” assess passport applications to in fact subjectively judge and police the behavior of citizens abroad. This was recognized as such by a subsequent assistant secretary of state, who in 1907 commented that “the conduct and character of an American citizen may under certain circumstances influence the department as regards the discretionary act of granting a passport.” Though he too later clarified, “A passport is not to be refused to an American citizen, even if his character is doubtful, unless there is reason to believe that he will put the passport to improper or unlawful use.”
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The improper use in this example was blackmail and a perceived general disposition to disrupt U.S. relations with foreign states; in an opinion from 1901, the attorney general offered the example of anarchists applying for passports as a circumstance “which would make it most inexpedient for the public interests of this country to grant a passport to a citizen of the United States.”
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However, secretaries of state did not generally offer the breaking of laws in other countries as the sole grounds for
refusing a passport, particularly as passports were intended to offer protection and aid when foreign officials detained a citizen in such circumstances.
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Nonetheless, on “rare” occasions it was acknowledged that the department had denied passports to citizens who violated U.S. laws while abroad.
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From the middle of the nineteenth century in the diplomatic and consular correspondence of the State Department, the passport appears as a certificate of citizenship and one which had value as a document that the executive could use to police the loyalty of its citizens by refusing to issue it to “dubious citizens.” However, outside of this context a passport was still not always recognized and used as a legally authoritative document. At the turn of the century, the U.S. ambassador in Paris informed the State Department that the passport primarily served the function of a personal identification document. According to him, French officials

do not attach to the possession of this document the importance that we do. For a French police officer it means nothing at all. In Paris it is usually asked for at the Police Headquarters for registration; at the post offices for obtaining registered letters and it is sometimes convenient for securing admission to monuments and various other places; but a certificate of identity, such as we issue to students and scholars who desire to study in the public libraries and galleries, would do just as well.
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This attitude was endorsed the same year in a French legal text that described passports as “a ‘curiosité’ of the science of jurisprudence, a subject for a doctoral dissertation, but not one of wider significance.”
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