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“ The attorney-general of the State of New York, under date of the 16th instant, declares it to be his opinion that by section 18 of the domestic regulations law of the State of New York, chapter 272 of the laws of 1896, as amended by chapter 725 of the laws of 1899, “ an illegitimate child, whose parents have not heretofore intermarried or shall hereafter intermarry, shall thereby become legitimatized and shall become legitimate for all purposes, entitled to all the rights and privileges of a legitimate child; but an estate or an interest vested or trust created before the marriage of a parent of such child shall not be divested or affected by reason of such child being legitimatized.'
“ Section 1993 of the Revised Statutes of the United States provides that “all children heretofore or hereafter born out of the limits and jurisdiction of the United States whose fathers were or may be at the time of their birth citizens thereof are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers have never resided in the United States,' and section 1992 declares all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States.
“ Assuming that the father of Louis Rover, Léon Jean Rover, who was born in New York, had never renounced his American citizenship acquired by his birth, it is the opinion of the Department that Louis Rover, born in France in 1888 of a French mother, became a citizen of the United States by the subsequent marriage of his parents in 1891, in pursuance of section 18 of the domestic relations law of New York, cited at the beginning of this note.”
Mr. Hay, Sec. of State to Mr. Lardy, Swiss chargé, Aug. 23, 1901, For.
Rel. 1901, 512.
In the case of a person born in China whose father was a citizen of the United States and whose mother was a Chinese woman, it was held that as the “ father was an American citizen the nationality of his mother previous to marriage would make no difference in the son's nationality, provided he was legitimate, unless the father was a citizen of one of the States which prohibit marriage with Chinese, of which there is no allegation in the present instance.”
Mr. Bayard, Sec. of State, to Mr. Smithers, chargé at Peking, May 4,
1885, For. Rel. 1885, 171. Accompanying this instruction there is an opinion of Dr. Francis Whar
ton, law oflicer of the Department of State, dated April 29, 1885. As the facts were reported to the Department of State it was not clear whether the son was born in wedlock. On this question a further investigation was directed to be made, but it was remarked by Dr. Wharton in his report that “the rule of law undoubtedly is that, in doubtful cases, the presumption in favor of legitimacy is to control.” (For. Rel. 1885, 172.)
Half-castes born in Samoa, of American fathers by Samoan women, with whom the fathers lived “fa'a Samoa,” are not citizens of the United States.
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia,
April 26, 1888, S. Ex. Doc. 31, 50 Cong. 2 sess. 55, 125 MS. Inst. Con
suls, 118; supra, § 234. Mr. F. W. Seward, in reply to a question as to the nationality of Samoan
half-castes, born of American fathers and native mothers, gave an answer based on the assumption that $1993 applied to such offspring and that they had a double nationality. It seems, however, that his attention was not drawn to the nature of the relations between the parents in such cases, nor was anything said by him on the subject. (Mr. F. W. Seward, Assist. Sec. of State, to Mr. Coe, commercial
agent at Apia, Feb. 11, 1867, 45 MS. Desp. to Consuls, 63.) See Mr. Adee, Act. Sec. of State, to Mrs. Forsayth, Oct. 25, 1890, 179 MS.
Dom. Let. 497.
The law officers have
reported with reference to inquiries made
by certain half-castes residing in Fiji, as to the protection which could be granted to them on account of their British origin, in connection with the establishment of a de facto government, that the half-castes in question appear to be illegitimate children of Fiji women, and to have been born in Fijian territory, and that, consequently, their nationality is not British, and that they are not entitled to British protection.”
Circular of Lord Kimberley to the governors of Australian colonies, Aug.
14, 1872, Blue Book, C. 983, April, 1874, pp. 22, 23.
As has been seen, by $ 1993 the children of fathers who never Continuous nation- resided in the United States are not American
Inst. Hayti, III. 346.
“ The Department recently made a careful and thorough examination of the question of the status of citizens of the United States who are members of continuous communities of American nationality existing in Turkey for business or religious purposes.
“(1) Persons who are members in Turkey of a community of citizens of the United States, of the character above described, do not lose their domicil of origin, no matter how long they remain in Turkey, provided that they remain as citizens of the United States, availing themselves of the extraterritorial rights given by Turkey to such communities, and not merging themselves in any way in Turkish domicil or nationality.
“(2) The American domicil they thus retain they impart to their descendants, so long as such descendants form part of such distinctive American communities, subject to the above proviso.
“(3) Section 1993 of the Revised Statutes, providing that “the rights of citizenship shall not descend to children whose fathers never resided in the United States,' does not apply to the descendants of citizens of the United States, members of such communities. Such descendants are to be regarded, through their inherited extraterritorial rights recognized by Turkey herself, as born and continuing in the jurisdiction of the United States. That this is the construction to be given to section 4125 of the Revised Statutes, coupled with our treaty of 1830 with Turkey, is fully shown by the abovementioned instruction of April 20, 1887, to which I again refer as binding you in this relation."
Mr. Porter, Act. Sec. of State, to Mr. Emmet, consul at Smyrna, Aug. 9,
1837, For. Rel. 1887, 1125; approved in Mr. Bayard, Sec. of State, to Mr. Straus, min. to Turkey, Aug. 11, 1887, For. Rel. 1887,
1120-1125. For the instruction of April 20, 1887, see For. Rel. 1887, 1094; and infra,
$ 870. See Mr. Porter, Act. Sec. of State, to Mr. Emmet, No. 14, March 30, 1887,
120 MS. Inst. Consuls, 638.
I have now to add that the Department considers as citizens of the United States all non-Mahometans descended from citizens of the United States (not naturalized Turks) whose parents or prior ancestors settled in Turkey for religious or business purposes, and who themselves remain non-Mahometans, retain and proclaim their American nationality, and are recognized by Turkish authorities as citizens of the United States."
Mr. Rives, Assist. Sec. of State, to Mr. Emmet, No. 30, Jan. 11, 1888, 123
MS. Inst. Consuls, 584.
“ The purpose of this statute (S 1993] was to define and limit the rights of citizenship of children of citizens of the United States born out of the limits and jurisdiction thereof, in order that such rights might not be abused. It is, however, believed that the limitations of the act do not apply to a country like Samoa, where citizens of the United States, although beyond the limits thereof, are not outside of its jurisdiction, but subject thereto under express conventional provisions. As citizens of the United States in such a country are expressly exempt from the operation of the local laws and are answerable only to the laws of their own country, no conflict of laws can arise, and registration in the United States consulate may be regarded as sufficient election of American citizenship.
“Of course there is nothing in the laws of the United States to prevent a citizen of the United States from expatriating himself and assuming allegiance to any government of which he may desire to become a citizen, and should it appear in any case that a citizen
of the United States, who had been under your protection, had expatriated himself, you would decline further to treat him as an American citizen."
Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul-general at Apia,
No. 28, Jan. 6, 1888, 123 MS. Inst. Consuls, 532.
2. BY NATURALIZATION.
Citizenship may be acquired after birth by naturalization. So, also, nationality may be changed, as the result of a shifting of sovereignty, without the acquisition of full rights of citizenship in the sense of the municipal law of the new sovereign. Again, in this sense, nationality and citizenship are not necessarily coextensive terms. A separate place will therefore be here given to naturalization, as affecting both nationality and citizenship.
3. BY REVOLUTION.
On the execution of the treaty of 1783, acknowledging the independence of the United States, all persons, whether born in the United States or otherwise, who adhered to the United States, were absolved from their allegiance to Great Britain, while those who adhered to Great Britain were British subjects.
McIlvaine v. Coxe's Lessee, 4 Cranch, 209.
603; Blight v. Rochester, 7 Wheat. 535 ; Contee v. Godfrey, 1 Cranch
By an act of the 4th of October, 1776, the State of New Jersey asserted its right to the allegiance of all persons born and then residing within the territory of the State. Therefore, one who was born there, and continued to reside there till 1777, was a citizen of the State; and his leaving the State afterwards, and actually adhering to the side of the Crown, did not render him an alien, nor did the treaty of peace of 1783 have that effect.
McIlvaine v. Coxe's Lessee, 4 Cranch, 209. “But it is insisted that the treaty of peace, operating upon his condition at
that time, or afterwards, he became an alien to the State of New Jersey in consequence of his election then made to become a subject of the King, and his subsequent conduct confirming that election. In vain have we searched that instrument for some clause or expression which, by any implication, could work this effect. It contains an
acknowledgment of the independence and sovereignty of the United H. Doc. 551--vol 3—19
States in their political capacities, and a relinquishment on the part of His Britannic Majesty of all claim to the government, propriety and territorial rights of the same. These concessions amounted, no doubt, to a formal renunciation of all claim to the allegiance of the citizens of the United States. But the question who were at that period citizens of the United States is not decided, or in the slightest degree alluded to, in this instrument; it was left necessarily to depend upon the laws of the respective States, who, in their sovereign capacities, had acted authoritatively upon the subject. It left all such persons in the situations it found them, neither making those citizens who had, by the laws of any of the States, been declared aliens, nor releasing from their allegiance any who had become, and were claimed as, citizens. It repeals no laws of any of the States which were then in force and operating upon this subject, but, on the contrary, it recognizes their validity by stipulating that Congress should recommend to the States the reconsideration of such of them as had worked confiscations. If the laws relating to this subject were, at that period, in the language of one of the counsel, temporary and functi officio, they certainly were not rendered so by the terms of the treaty nor by the political situation of the two nations, in consequence of it. A contrary doctrine is not only inconsistent with the sovereignties of the States, anterior to and independent of the treaty, but its indiscriminate adoption might be productive of
more mischief than it is possible for us to foresee. “If, then, at the period of the treaty, the laws of New Jersey, which
had made Daniel ('oxe a subject of that State, were in full force, and were not repealed or in any manner affected by that instrument; if by force of these laws he was incapable of throwing off his allegiance to the State and derived no right to do so by virtue of the treaty, it follows that he still retains the capacity, which he possessed before the treaty, to take lands by descent in New Jersey, and, consequently, that the lessor of the plaintiff is entitled to recover." (Cushing, J., in Mellvaine v. Coxe's Lessee, 4 Cranch, 214, 215.)
Persons born in the colonies before the Declaration of Independence had a right to elect whether they would retain their native allegiance to the British Crown or would become citizens of one of the several States. The rule as to the point of time at which Americans, born before the Declaration of Independence, ceased to be British subjects differed in England and in the United States, England taking the treaty of peace in 1783; the United States, the date of the Declaration. It was not necessary that the election should have been manifested by any act prior to, or on or about, the 4th of July, 1776. Persons remaining here after that day were, prima facie, to be deemed American citizens, but this presumption was subject to rebuttal by showing adhesion to the British Crown during the struggle.
Inglis v. Trustees, 3 Pet. 99.