may happen to be, so that, although not at the time of the naturalization of the father actually within the jurisdiction of the United States, the son, Anton Macek, may be held to have been vicariously present in the person of the father through whom he then and there became a citizen of the United States, the same as though he had been personally present at his father's home in Chicago.

"Still another view is brought forward, to the effect that the protective force of section 2172 only applies to the minor children of naturalized aliens while such minor children are actually within the jurisdiction of the United States.

"This narrow interpretation is no longer entertained by the Department, although as a proposition in municipal law it has on several occasions in the past been enunciated; but it has been replaced in practice by a quasi conventional interpretation, as will be later shown, by which the acquisition of a parent's citizenship by an alien minor is assimilated to the actual naturalization of the minor himself.

"On page 301 of the volume of Foreign Relations for 1890 you will find a carefully formulated instruction sent by Mr. Blaine to Minister Phelps at Berlin, No. 57, February 1, 1890, in which considerable attention is given to the intent and application of section 2172, Revised Statutes. The purport of that opinion (which is understood to have been prepared by Mr. John B. Moore, then Assistant Secretary, and now a known and recognized authority on matters of international law) is that the effect of the American law is to make actual residence in the United States, and not residence at the time of naturalization, the test to the claim of citizenship, inasmuch as the provision relates to children born of parents who are not at the time citizens of the United States, and upon whom the country of the parent, under the same rule of law as that announced by this Government with respect to the children born abroad of citizen parents, might have claims of allegiance. In respect to such persons the words 'if dwelling in the United States' recognize a possible conflict of allegiance. In the absence of any such conflict of allegiance being adversely raised by the government within whose jurisdiction the minor may be temporarily dwelling, there could be little doubt that the law of the country which naturalized the father would obtain; and in fact it does obtain, by common consent, in the relations of the United States with Germany. In practice, therefore, it may be said that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child, if he be at the time of the father's naturalization within the jurisdiction of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority.

"The principle may be broadly stated that no country can naturalize an inhabitant of another country while that person is dwelling

within the jurisdiction of the other country; that naturalization is a municipal act valid within the jurisdiction of the naturalizing power, and that, once performed by due operation of law, it is entitled to respect. It is not necessary that naturalization should be a strictly judicial act, as in the case of the original naturalization of an alien father. The minor son is just as much naturalized by the fact of being within the jurisdiction of the United States at the time of the father's naturalization, or coming within that jurisdiction subsequently during minority, as if he himself had been admitted to citizenship by a decree of the court.

"The view that citizenship acquired by a minor through the parent's naturalization is in effect a process of naturalization according to law, obtains in applying the German-American naturalization treaties. where evidence that a minor child has acquired citizenship through the father, according to the laws of the United States, coupled with evidence that the minor had resided at least five years in the United States, are taken to fulfill the conditions of the treaty-that is, in effect, to show that the minor child has been naturalized according to law.

"These points are, however, adverted to for your information merely and not as controlling your action in respect to Anton Macek's application for a passport. Whatever construction be given to section 2172 of the Revised Statutes, it is quite clear that it can not apply to this present case, because the words 'if dwelling in the United States' do not fit the circumstances. The applicant was not dwelling in the United States at the time of his father's naturalization, he has not at any time since dwelt in the United States, and of course is not now dwelling here.

“Your action in withholding the passport from Anton Macek is approved."

Mr. Hay, Sec. of State, to Mr. Harris, min. to Austria-Hungary, Jan. 22, 1900, For. Rel. 1900, 13-15.

That the naturalization of the parent effects, under the treaties [e. g., that with Sweden and Norway], the expatriation of minor children dwelling in the United States, if or after the latter have also resided there five years, see Mr. Sherman, Sec. of State, to Mr. Grip, Swedish min., No. 104, June 15, 1897, 8 MS. Notes to Sweden, 58.

"As stated in my instruction, No. 603, of October 15, 1898, in the case of Jacob Lenzen, the words of the statute dwelling in the United States' are held to mean either at the time of the father's naturalization or afterwards during the child's minority."

Mr. Hay, Sec. of State, to Mr. Jackson, chargé at Berlin, Oct. 3, 1900, For.
Rel. 1900, 527.

2. MARRIAGE OF ALIEN WIDOW TO AMERICAN.

§ 414.

"I transmit herewith copy of a letter addressed to this Department under date of 23d ultimo by Mr. George Haberacker, of Cleveland, Ohio, in relation to the impressment into the Bavarian army of his brother, John Haberacker.

"From this letter, and from the newspaper clipping which accompanied it, the facts of the case may be thus conveniently summarized: "John Haberacker was born in Windsheim, Bavaria, on August 18, 1869, and has but very recently attained his twenty-first year. His father was a subject of Bavaria, and died in that country in 1883, when John was 14 years old. His widow emigrated to the United States the same year (1883), bringing her minor children with her. Three years later (in 1886) the widow Haberacker married one Andrew Knauss, a Bavarian by birth, but then for thirtythree years a citizen of the United States by naturalization. About three months ago Mr. Knauss and his wife went to Bavaria to visit relatives at Windsheim, taking with them John Haberacker, who had not yet reached full age. They returned in July, leaving John in Windsheim for a further stay of a fortnight. On August 3, a few days before he had arranged to return to the United States, John Haberacker was arrested as liable to military service and taken to Uffenheim, where a partial examination was had. Thence he was taken to Anspach, where he was heard before a military court and adjudged liable to three years' service as a Bavarian subject in the armies of the Kingdom. He was accordingly assigned to the Fourteenth Regiment of Infantry, on duty at Nuremberg, where he was when last heard from.

"The statutes of the United States applicable to the case are as follows:

"SEC. 1994. Any woman who is now, or may hereafter be, married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.

"SEC. 2172. The children of persons who have been duly naturalized under any law of the United States being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.

"It has been held by our courts that the husband's citizenship confers citizenship upon the wife without application for naturalization on her part or the usual qualifications. There is also an express decision of the United States circuit court (13 Federal Reporter, 82) that upon the marriage of a resident alien woman with a naturalized citizen both she and her infant son, dwelling in this country, become

citizens of the United States as fully as if they had become such in the special mode prescribed by the naturalization laws.

"It is conclusive, therefore, under the laws of this country, that John Haberacker, upon the marriage of his mother to Knauss in 1886, became a naturalized American citizen. That he shall be treated as such by the Royal Government of Bavaria, our treaty with that Government of May 26, 1868, only requires further that he shall have resided uninterruptedly within the United States for five years.'

"It is the generally accepted theory in this country that a widowed mother may reasonably and in good faith change the domicil of her minor children. When the boy John Haberacker, therefore, came to this country to live, in 1883, with his mother, his only natural protector, the United States thereby became his domicil. It is understood that in some of the systems of European law a different view prevails, viz, that the minor's domicil is fixed by the father's death and can not be changed during minority by the mother. The Department is not informed, however, that the law of Bavaria in this regard is different from our own. And in any event, whatever view that Government may entertain as to the legal domicil of Haberacker, with respect, for instance, to such a question as the succession to property in that Kingdom, it is believed that they will agree with us that the facts in this case constitute such an uninterrupted residence in this country as is contemplated by the treaty and bring Haberacker's case within its provisions.

"In this connection the stipulations of Section III. of the supplementary protocol of Munich, signed May 26, 1868, have a pertinent application. It is therein provided that, while Bavarians 'emigrating from Bavaria before the fulfillment of their military duty can not be admitted to a permanent residence in the land till they shall have become 32 years old,' this does not forbid a journey to Bavaria for a less period of time and for definite purposes, and the Royal Bavarian Government cheerfully undertakes, in cases of good faith, 'to allow a mild rule in practice to be adopted.' The emigration of a child of 14 in the care of his widowed mother suggests no bad faith. The child at that age could not have been enrolled for service under a draft, or stood in service under the flag, or broken a leave for a limited time, or failed to respond, while on unlimited leave, to a call into the service to which he belonged-which are the usual conditions under which service is exacted of Germans returning to Germany after naturalization abroad. The general rule now observed in practice throughout the German Empire corresponds with the specific rule laid down in Article II. of the treaty of naturalization of July 19, 1868, between the United States and Baden, and its reasonableness and justice commend it as equitably governing suel

cases.

Under it emigration, even if transgressing other legal provisions on military duty than the cases of practical desertion or evasion of an accrued and existing obligation to service at the time, which are recited above, does not subject the emigrant on return to be held to military service or to be tried and punished for non fulfillment of military duty.

"In view of the above, I have to direct you to call the facts in this case to the attention of the Government of Bavaria, in the confident belief that that Government will be pleased to take steps looking to Haberacker's prompt release from his present enforced military service.

"In conclusion, I must caution you not to allow the consideration of this case to be prejudiced by the statement in his brother's letter (George Haberacker) of August 19, 1890, that John, on reaching his legal age, had intended to take out his full papers, if necessary, on his return.'

"The brother's supposition that some formal act of the court might be required to confirm his citizenship, but which we have found to be unnecessary, can have no bearing either way."

Mr. Wharton, Act. Sec. of State, to Mr. Phelps, min. to Germany, Sept. 8, 1890, For. Rel. 1891, 496.

"Recurring to the note verbale of the 31st ultimo, the undersigned has the honor to inform the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. William Walter Phelps, that the Royal Bavarian Government does not consider the American citizenship of John Haberacker, now performing military service in Bavaria, as proven. In section 1993, Revised Statutes, the principle is laid down that the citizenship of the father decides that of the children, and it is not to be assumed that this principle, which coincides with all known views of law, was intended to be modified by section 1994 or section 2172.

"As regards section 2172, it, in connection with the two above-cited provisions of law, may, according to the views of the Bavarian Government, well give rise to a doubt that the naturalization of both parents is requisite to convey American citizenship to their minor children also, or whether the naturalization of the father alone is sufficient. From this provision the conclusion can not, however, be arrived at, notwithstanding the conflicting decision of a single American court, that a minor whose father, as in Haberacker's case, has never lived in the United States should acquire American citizenship solely by virtue of the naturalization of his mother.

"The Royal Bavarian Government therefore believes that John Haberacker should continue to serve with the flag, unless it is convincingly proved by appropriate American authority that by the