HOLLISTER, United States Consul to Alexander S. Asboth, January 30, 1867

Mr. Hollister to Mr. Asboth

Sir: I have the honor to acknowledge the receipt of your communication of the 29th instant, with the enclosure marked A, being a copy of a letter addressed to you by Mr. Harry C. Albee, an American citizen, in which you state that he complains that I refuse to grant him a duplicate of his protection papers, issued by my predecessor Mr. Helper, September 19, 1866, and recorded accordingly in this office, and that I disclaim any obligation on my part to protect United States citizens here on the ground that all United States citizens residing in a foreign country lose, as such, their claims to the protection of the United States government; and also that Mr. P. O. Gondon, a citizen of the United States, registered as such in this office under No. 990, has made a similar complaint by letter, a copy of which, marked B, is also enclosed. In this communication you do me the favor to express an inclination to believe that both these gentlemen are laboring under a misapprehension as to my decision, and ask for an explanation upon the subject from me, at the same time referring me to an act of Congress approved February 10, 1855, Chap. 71 of the Laws of the United States, by which it is enacted that even the sons of United States citizens born abroad shall be considered and declared citizens of the United States, and which you state are thereby entitled to all the rights as such, and most certainly to the protection of the United States government and its agents all over the world. You also, in this communication, express the hope that I will, in obedience to our laws, consider both the complaining gentlemen as citizens of the United States and give to them the protection to which they are entitled, and that you (I) will be pleased to give the same protection to all other citizens of the United States who may in future apply to me for it.

In answer thereto I beg leave to state, that as far as I can at this time remember the conversation with these two gentlemen, they have stated it correctly, so far as it has been communicated to your excellency, but in order to a correct understanding of the question in its relation to all the facts and the law applicable thereto, it becomes necessary for me to observe that these two gentlemen, as they informed me, left the United States some years ago, (Mr. Albee, if I mistake not, five years,) leaving no families there, with no fixed intention of returning, and had made this country the place of their business and residence. It is important further to observe, that in some portions of the Argentine Confederation there had been a rising in rebellion against its authority, and that it was deemed necessary by the public authorities to order an enrolment of the national guards, with a view, if the public exigencies required it, of calling out the military to quell it. It becomes further important to state that martial law, as I have been informed, had been established to a certain extent in Buenos Ayres, and that in its execution the authorities had made arrests of persons suspected of hostile intentions towards the government, and of some also who had failed or refused to enroll their names in the national guards, among the latter of whom are found some who claimed to be citizens of the United States. That they had the right to do so, seems to be unquestionable, for it cannot be doubted that martial law “extends to all the inhabitants (whether civil or military) of the district where it is in force.” (Halleck’s Elements of International Law.)

To escape from arrest and to protect themselves from military service, “for the preservation of order, and the enforcement of the laws,” these two gentlemen applied to me for the protection papers referred to. With this preliminary statement of facts, and the single allusion to the principle of law authorizing military arrests, I beg leave to state some further principles of law applicable to the question under consideration, and to refer you to the authorities which support them.

“In case of war between the country in which a person actually resides, with the intention of remaining, and any other country, he is obliged to defend it, in return for the protection it affords him, and the privileges which the laws bestow upon him as a subject. The property of such a person, equally with that of the native subject in his vicinity, is to be considered as the goods of the nation in regard to other states.” (Wheaton’s Elements of International Law, p. 404, part 4, chap. 1.)

The same author, on page 403, says, “having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it, until he has thrown it off either by an actual return to his native country or to that where he was naturalized, or by commencing his removal, bona fide, and without an intention of returning.”

Halleck in his Elements of International Law, abridged edition, page 174, latter clause of section 7, asserts the doctrine that domiciled foreigners may be required to do duty in the militia, or the civic or national guards for the preservation of order and the enforcement of the laws within a reasonable distance of the place of their domicile. “It does not include,” he adds, “service against a foreign enemy, nor general military service.” In the works quoted, and to which I beg leave to refer your excellency, the law as to what constitutes a domicile so as to render a citizen of one country a subject of that in which he resides, with the consequences resulting there from, is well settled, and in my view applicable to the case of the two gentlemen to whose communications you refer.

Not having the act of Congress of 1855, to which I am referred, before me, I am unable to judge of its bearing upon the question under consideration.

There is, however, in my view, a clear distinction as to the rights of a citizen who continues to reside within the jurisdiction of his native or adopted country, and those of one who abandons his country, withdraws himself from its defence, withholds all aid in its support, and makes another the place of his personal domicile. In the one case he is not only a citizen but a subject also; in the other, though he may not cease to be altogether a citizen in the general acceptation of the term, he ceases to be a subject, and become by his own choice the subject of another, and a qualified citizen thereof. In the latter case he voluntarily puts himself under the jurisdiction of the government where he resides, enjoys the protection of its laws in his person and property, and owes obedience thereto. This distinction is shown, in my view, by the authorities to which I have referred you, and I have felt it my duty in these two cases to be governed by them, for the reason that they are brought within their general scope. In thus stating somewhat fully the reasons for my action in the premises, I avail myself of the opportunity which the occasion affords of frankly confessing the great reluctance with which I departed from what I am informed was the uniform usage of my predecessors, inasmuch as it was the cause of disappointment to citizens of our country, and implied a disregard of precedent, which, in all cases I shall feel under obligation to follow, unless I find it opposed to some well established rule of law.

I am happy to be relieved from further embarrassment of this character by your excellency’s communication, and shall endeavor hereafter to follow the course indicated therein, in all cases of citizens of the United States who may apply at this consulate for protection. Before concluding this reply it may be of interest to state that I have acted in this question upon the presumption that there are no treaties existing between our government and that of the Argentine Confederation by which the operation of the laws of nations bearing upon it has been suspended or in any degree modified. If there are such they have not been brought to my notice.

In further explanation of my course, I beg leave to state that neither in Statutes of the United States nor the consular instructions have I found any authority conferred upon consuls to issue what are technically called “protection papers.”

I am, with great respect, your obedient servant,