law of the United States he has acquired American citizenship by the marriage of his mother with an American."

Freiherr von Rotenhan to Mr. Phelps, Feb. 28, 1891, accompanying Mr. Phelps to Mr. Blaine, No. 245, March 2, 1891, For. Rel. 1891, 506, 507. "Article I. of our treaty with Bavaria, concluded May 26, 1868, provides that—

"Citizens of Bavaria who have become, or shall become, naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States for five years, shall be held by Bavaria to be American citizens and shall be treated as such.

"The reply of the imperial foreign office admits Haberacker's requisite residence in this country, and that whether or not he has become a nauralized American citizen is to be determined solely by the local law of the United States.

"The Bavarian Government entirely overlooks the fact that section 1993, to which reference is made, is.not a part of, and does not in any way relate to, our naturalization laws.

"It and the previous section (1992) define who are native-born citizens of the United States. The first of the two sections adopts in its entirety the principle of nationality of origin dependent upon the place of birth. The second section adopts in part only the other theory of dependence upon the nationality of the parents. In this respect the laws of this country do not differ materially from the laws of most other countries, in which both elements, jus soli and jus sanguinis, as a rule, exist, though not always the same one predominating. (Cockburn on Nationality, chap. 1.)

6

"Section 1993 is a restrictive statute, and provides, as to children. born out of the limits and jurisdiction of the United States, that only those are citizens thereof by birth whose fathers' (1) were citizens and (2) were such at the time of the birth of the child, and (3) have at some time resided in this country. These restrictions relate solely to the determination, under the laws of the United States, of the national status of a child at birth. Each of the restrictions may be presumed to have been used intentionally, and all of them, from their very nature, could not have been used in our naturalization laws, even if it had been desired. Excepting the case of posthumous children, every child at birth has a father, and if a child is to inherit citizenship it most properly takes that of the father. The United States could scarcely have claimed the citizenship of children born in a foreign country of an American mother and an alien father, while, on the other hand, if the father was a citizen the mother would be one also under our laws by virtue of her marriage.

"There is no question as to Haberacker's status at birth. It is only on account of being born an alien that he comes within the

purview of sections 1994 and 2172, which relate solely to citizenship by naturalization.

"Those two sections point out some but not all of the several methods by which aliens can be and are admitted to citizenship in this country. Although section 1994 is not found in Title XXX in connection with most of the laws on the subject of naturalization, it is nevertheless solely a naturalization law. It is uniformly held under it that an alien woman, who might herself be lawfully naturalized, by marriage to a citizen becomes herself a citizen without any previous declaration or act on her part, or without reference to the previous length of her residence in this country, as fully to all intents and purposes as if she had become a citizen upon her own application and by the judgment of a competent court.

"Haberacker's mother, by her marriage to Knauss, a citizen, was accordingly duly naturalized under any (a) law of the United States. It only remains to determine whether she is a person' within the meaning of section 2172. If so, her minor son, residing with her at the time in this country, likewise became a citizen. The word 'person' may be presumed to have been used as intentionally in this section as the word fathers' was used in section 1993. By the death of the father the mother often becomes the natural protector of the child. Such a child can only be excluded from the benefits of section 2172 by a forced construction of its language, which view is also strengthened by the fact that it reads: The children of persons who have been duly naturalized under any law of the United States.' It clearly contemplates the case of persons naturalized under other than the regular and usual provision with respect thereto.

"The exact point at issue was decided in the case of the United States vs. Kellar (13 Federal Reporter, 82), to which reference was made in Department's instruction No. 146, of September 8. It was decided in the court of next highest jurisdiction to the Supreme Court of the United States, and by Mr. Justice Harlan, one of the most distinguished judges of the Supreme Court. The same question is not known to have ever been passed upon by the Supreme Court, but it is not a question of itself alone appealable to that court. The decisions, however, of the State and Federal courts have been uniform with respect thereto.

"Judge Harlan, in the course of his opinion, said:

"The case seems to be so distinctly one of those embraced by the very language of section 2172 that argument could not make it plainer.'

"The Kellar case, decided in 1882, is not a conflicting decision of a single American court.' I find upon a little investigation that section 2172 has been construed in exactly the same way to confer citi

zenship upon the minor child of a widow marrying a citizen, in 1885, by the supreme court of the State of New York, in the case of the People vs. Newell (38 Hun, 78), and again in 1888 by the supreme court of the State of Missouri, in the case of Gunn vs. Hubbard (97 Mo. 321), and I fail to find any cases which, even by implication, throw any doubt upon the correctness of those decisions. In consideration of the uncontradicted opinion of the supreme courts of two of our greatest States and the decision of one of the justices of the Supreme Court of the United States upon this point, it is believed that the Royal Bavarian Government will accept this interpretation as correct in the premises and readily assent to treat Haberacker as an American citizen.

"With reference to the suggestion in your dispatch whether Haberacker is really held to service against his will, I would say that his case was presented to the Department by his brother and strongly urged for immediate action. It has since that time also been the subject of repeated inquiry by the member of Congress representing the district where Haberacker's family resides. Until the contrary appears, therefore, the Department is bound to believe that he is so restrained. But it is only necessary to request that he be released if he so desires. The opportunity for that having been given, he of course may avail himself of it or not as he chooses."

Mr. Wharton, Act. Sec. of State, to Mr. Phelps, min. to Germany, March 26, 1891, For. Rel. 1891, 507.

"The undersigned, replying to the note of the 20th of April last (F. O., No. 211), 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 has made a renewed and thorough investigation of the case of John Haberacker, but finds no reason for discharging him from the Bavarian army.

"The Bavarian Government is guided in this by the following considerations:

"According to the treaty of May 26, 1868, subjects of the Kingdom of Bavaria are to be regarded as Americans only when they become 'naturalized' citizens of the United States of America and have resided in that country uninterruptedly for five years. As only the latter of these preliminaries has been performed, it can not therefore be admitted that Haberacker was naturalized in America.

"Under Title XXX. of the Revised Statutes, headed 'naturalization, the manner in which the naturalization of foreigners is to be effected is determined, and in section 2165 it is expressly stated that this is to be done as prescribed therein and not otherwise.' True, it is stated in section 2172 that minor children of persons duly natu

ralized are to be regarded as American citizens; but if, on this account, Haberacker's personal naturalization would not be required, it would in all events be necessary that his mother at least had become naturalized. But even this is not the case.

"Haberacker's mother became an American citizen by her marriage with an American citizen, according to section 1994 of the Revised Statutes. This legal provision can not, however, be regarded as a special manner of naturalization. It is not to be found in Title XXX. of the Revised Statutes, headed naturalization,' but, as is the case with section 1993, in Title XXV., headed citizenship.' In the envoy's note above referred to it is expressly stated that section 1993 is not a part of the American naturalization laws, and in no wise applies to naturalization. The same must be said of section 1994.

"If the word 'naturalized' had been omitted in the treaty of 1868, the above section might perhaps apply to a case such as that now under consideration. This view is debarred by the express use of that word, and it could hardly have been thought of when the treaty was negotiated. For, according to the principles of American lawwhich in this instance are precisely the same as the German—the marriage of an American woman to a foreigner can not deprive the children of her first marriage of their American citizenship.

"From this standpoint it amounts to nothing that Haberacker, according to American decisions, is regarded as an American citizen. It is enough that he did not become a 'naturalized' citizen of the United States."

Freiherr von Rotenhan to Mr. Phelps, Dec. 1, 1891, For. Rel. 1891, 521.

"The full meaning of such a contention [as that made in the foregoing note] is worthy of notice. If Haberacker is not a naturalized American citizen, it is simply because his mother is not. If she is not, then none of the wives of former subjects of Bavaria naturalized in this country are naturalized citizens and entitled to the protection of the treaty; and its intended scope would be most seriously reduced. "The inference drawn from these words, and not otherwise,' is a superficial one, which an understanding of their historical origin ought to dissipate and the decisions at least completely negative. Title XXX. of the Revised Statutes, relating to naturalization, is based upon the act of Congress of the 14th of April, 1802. That act began as follows:

"That any alien being a free white person may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise.

"The foregoing language was substantially copied into section 2165, although between April 14, 1802, and the revision of the statutes in 1878 there were many general and particular acts of naturalization

which were not brought into Title XXX., and among them section 2 of the act of February 10, 1855, which is embodied in section 1994 of the Revised Statutes. But, giving the words and not otherwise full force and effect, they do not necessarily conflict with other modes of naturalization which the Revised Statutes point out. The same authority which enacted section 2165 also enacted section 1994. It is a fundamental rule of construction that such meanings are to be attributed, if possible, to the different parts of a code of laws that full effect may be given to the whole. That is accomplished in this case by understanding the words and not otherwise' as limiting the procedure requisite under the particular modes of naturalization pointed out in Title XXX., and those modes only.

"Whole classes of people, and all persons domiciled under certain conditions within designated geographical limits, have been naturalized by acts of Congress, and even by treaties with foreign powers, without any of the formalities provided for in Title XXX. Mr. Chief Justice Fuller, in delivering the opinion of the Supreme Court in the late case of Boyd vs. State of Nebraska, decided February 1, 1892, says:

It is insisted that Boyd was an alien upon the ground that the disabilities of alienage had never been removed, because he had never been naturalized. Naturalization is the act of adopting a foreigner and clothing him with the privileges of a native citizen, and relator's position is that such adoption has neither been sought nor obtained by respondent under the acts of Congress in that behalf. Congress, in the exercise of the power to establish an uniform rule of naturalization, has enacted general laws, under which individuals may be naturalized, but the instances of collective naturalization by treaty or by statute are numerous.'

"The opinion cites numerous examples of such cases. Boyd, who was born in Ireland, had been elected governor of the State of Nebraska, to which office he was ineligible unless an American citizen. Although he had not been naturalized in the manner pointed out in Title XXX., Revised Statutes, still the Supreme Court held that he had been otherwise naturalized, and that he was entitled to hold the office to which he had been elected.

"There are two steps in the naturalization of Haberacker:

"(1) The naturalization of his mother by her marriage to Knauss. This is provided for in section 1994, which is not found in Title XXX. "(2) His naturalization by virtue of the naturalization of his mother. This is provided for in section 2172, which is a part of Title XXX., and so there can be no question but that it is a naturalization law.

"The whole matter, therefore, turns upon the point whether or not an alien woman, by her marriage to an American citizen, becomes a