Page images
PDF
EPUB

naturalized citizen. That she becomes a citizen is admitted, and that

, she becomes a naturalized citizen can be shown to be equally clear.

* The expression shall be deemed a citizen'in section 1994, or, as it was in the second section of the original act of February 10, 1855, . shall be deemed and taken to be a citizen,' was the language of the bill as it was reported to the House of Representatives on January 13, 1854, by the Judiciary Committee. Mr. Cutting, who was instructed by the committee to report the bill, in doing so said that the section was taken in so many words, or in nearly so many words, from the recent act of 1814, Victoria.' That statute (7 and 8 Victoria, c. 66, sec. 16) provides:

That any woman, married, or who shall be married, to a naturalborn subject or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural-born subject.'

"Mr. Cutting also said:

“ • The section, in my opinion, ought to be immediately passed, for there is no good reason why we should put a woman into the probationary term required by the naturalization laws, nor to the inconvenience of attending at the necessary courts or places for the purpose of declaring her intentions and renouncing her allegiance, nor, again, put the husband to the expense of the proceeding.' (Cong. Globe, first session, Thirty-third Congress, p. 170.)

“ The intention of Congress was clearly to make the effect of the marriage of an alien woman to an American citizen, as regards citizenship, the equivalent of naturalization in the courts, or, as it is more fully expressed in the English statute, that by such marriage she should be deemed and taken to be naturalized.

“ If there were any doubt regarding the construction of this statute, the decisions of the courts are explicit and, under our system of jurisprudence, conclusive. The United States circuit court say, in Leonard l's. Grant (5 Fed. Rep. 16):

“ The phrase "shall be deemed a citizen," in section 1994, Revised Statutes, or as it was in the act of 1855, “ shall be deemed and taken to be a citizen," while it may imply that the person to whom it relates has not actually become a citizen by the ordinary means or in the usual way, as by the judgment of a competent court upon a proper application and proof, yet it does not follow that such person is on that account practically any the less a citizen. The word “ deemed is the equivalent of " considered " or "judged;" and therefore whatever an act of Congress requires to be “ deemed “ taken as true of any person or thing must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly. When, therefore, Congress declares that an alien woman shall, under certain circumstances, be “ deemed ” an

H. Doc. 551—vol 3 -31

or

American citizen, the effect, when the contingency occurs, is equivalent to her being naturalized directly by an act of Congress, or in the usual mode thereby prescribed.'

“And Mr. Justice Harlan, in United States vs. Kellar, cited above, says:

“ “The marriage of the defendant's mother with a naturalized citizen was made by the statute an equivalent in respect of citizenship to formal naturalization under the acts of Congress. Thenceforward she was to be regarded as having been duly naturalized under the laws of this country.

“ The general purport of the decisions is that an alien woman of the class of persons that can be naturalized is as effectually naturalized, to all intents and purposes, by her marriage to a citizen as if by the judgment of a competent court.

“A complete answer to the whole contention of the Bavarian Government is that there are only two classes of citizens known in our law, viz, natural-born citizens and naturalized citizens. Mr. Chief Justice Fuller, in the late case of Boyd vs. State of Nebraska, cited above, defines naturalization to be the act of adopting a foreigner and clothing him with the privileges of a native citizen.' And AttorneyGeneral Black, in an opinion to the President, July 4, 1859, said:

“ What, then, is naturalization? There is no dispute about the meaning of it. The derivation of the word alone makes it plain. All lexicographers and all jurists define it in one way. In its popular, etymological, and legal sense it signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject.' (9 Op. 359.)

“ The publicists are to the same effect. Calvo says (Le Droit International, fourth edition, par. 581):

“ La naturalisation est l'acte par lequel un étranger est admis au nombre des naturels d’un État et par suite obtient les mêmes droits et les mêmes privilèges que s'il était né dans le pays.'

“ Where our law makes a child a citizen at the moment of birth, whether that be because born within the United States (as provided in section 1992 and in the fourteenth amendment to the Constitution) or because born of American parents abroad (as provided in section 1993), such a child is a natural-born citizen. If, however, a person is born an alien, there is no way by which he can be made a citizen except by adopting him and clothing him with the privileges of a native citizen, which is naturalization.

" The position of the Royal Bavarian Government is not strengthened by the contention of Baron Rotenhan's note that by both the German and American law, which, he alleges, in this instance are precisely the same,' the marriage of a German or American woman to a foreigner can not deprive the children of her first marriage of their native citizenship. I refrain from any discussion whether the foregoing is, in fact, American law, as in any event it is immaterial to the present case. The very cases contemplated by the treaty are those of conflicting claims to the allegiance of the same person. If by the laws of Bavaria every Bavarian that became a naturalized citizen of the United States ceased, ipso facto, to be a Bavarian subject, and by the laws of the United States every native American that became a naturalized citizen of Bavaria ceased likewise to be an American citizen, there would have been no occasion for the treaty. It was necessitated by the very fact that it was or might be possible for the same person to be claimed as a citizen or subject of both countries. By its provision it is wholly unimportant whether or not under Bavarian law Haberacker at his naturalization in America ceased to be a Bavarian subject. The treaty provides that, having been so naturalized and having resided within the United States uninterruptedly for five years, he shall be treated by Bavaria as an American citizen.

" In my first instruction to you regarding this case, September 8, 1890, I said:

“ * 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.'

" The foregoing was repeated, in its exact language, in Mr. Coleman's note to the imperial foreign office on September 23, 1890. At the very beginning it was admitted, as it must have been, that the determination of that question was dependent solely upon the laws of the United States. I can not refrain, therefore, from expressing regret that the deliberate and well-considered statement of this Government as respects its own law should not have been accepted by the Imperial Government of Germany. By reason of this protracted discussion Haberacker has already been held to more than one-half of the term of service to which, as it is thought must now plainly appear to its satisfaction, he was unlawfully adjudged. He is entitled to be released therefrom, and you are directed to present the foregoing views to the imperial foreign office, with a renewed request that action to that end may promptly be taken by the Royal Bavarian Government."

Mr. Blaine, Sec. of State, to Mr. Phelps, min. to Germany, March 19,

1892, For. Rel. 1891, 522, 524–527. "The undersigned has the honor to inform the envoy extraordinary and

minister plenipotentiary of the United States of America, Mr. William Walter Phelps, that, according to information received from the Royal Bavarian Government, John Haberacker deserted on March 31,

1891, and has not as yet been captured. "As the affair has actually been settled hereby, the undersigned assumes

that he may refrain from a further discussion of the questions which have arisen, but begs to remark that the Royal Bavarian Govern

inent, after renewed investigation, still maintains, as heretofore, the entire correctness of the views which have been set forth in the undersigneil's note of December 1 last." (Freiherr von Rotenban

to Mr. Phelps, Nov. 28, 1892, For. Rel. 1892, 199.) In consequence of the position taken by the Bavarian Government, the

Department of State, though it would gain urge its own view, is unable in such a case to give an assurance of immunity in the event of the return of the person to his original jurisdiction. (Mr. Allee,

Act. Sec. of State, to Mr. Bock, Aug. 3, 1895, 203 MS. Dom. Let. 06). In connection with the Haberacker case, see that of Herman F. Buss,

the illegitimate child of a woman by a man who was at the time married, but who afterwards secured a divorce and married the child's mother, subsequently to his naturalization. 'The word " (bildren” in the act of 1802 (R. S. 1993) had been held in at Maryland (court to apply only to legitimate children. It was stated in a note of the German foreign office that bastard was not legitimated by the subsequent marriage of the parents where the father was at the time of the child's birth married. The embassy was instructed to inquire into this point, under German law. (Mr. Hay, Sec. of State, to Mr. White, amb. to Germany, No. 783, March 3, 1899, MS. Inst. Germany, XX. 659.)

Two persons, sister and brother, one of age and the other a minor, who were born in Canada to British subjects, but whose mother, after their father's death and during their minority, married an American citizen and brought them to the United States to live, were entitled to obtain passports from the American embassy at Berlin.

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

1900, 527. See, also, Mr. Hlay, Sec. of State, to Mr. Harris, min. to Aust.-Hung.

Jan. 22, 1900, For. Rel. 1900, 13-15.

[merged small][ocr errors]

“ The only mode of adoption by which a private citizen can confer citizenship upon an alien is that of marrying a female of foreign birth."

Mr. Fish, Sec. of State, to Mr. Morris, Feb. 26, 1870, MS. Inst. Turkey.

II. 272.

A citizen of the United States can not, by adopting a child of forcign nationality, confer on such child the privileges of citizenship in the United States.

Mr. Fish, Sec. of State, to Mr. Rand, Jan. 6, 1872, 92 MS. Dom. Let. 142.

" There are but three methods known to me for obtaining the rights of an American citizen. Those entitled to such rights are:

"(1) Children born in the United States, and subject to the jurisdiction thereof.

* (2) Children born of American parents whose fathers have resided within the United States; and,

" (3) Those embraced by the naturalization law, which would include those naturalized and their children minors at the time of naturalization, if within the jurisdiction of this country.

“ I can not see that this child born abroad presumably of foreign parents is by the act of adoption under a State law brought within either of these provisions prescribing United States citizenship."

Mr. Frelinghuysen, Sec. of State, to Mr. Willis, M. C., Feb. 21, 1884, 150

MS. Domi. Let. 86.

“ The naturalization laws of the United States contain no provision as to the effect on the status of an alien minor of adoption by a citizen of the United States; and it has been held that a citizen of the United States can not, by adopting a child of foreign nationality, confer on such child the privileges of citizenship in the United States. But even supposing the general rule were otherwise, it would seem umquestionable that, where the law does not permit the naturalization of persons of a certain race, and thus excludes them from citizenship, citizenship can not be conferred on them by adoption."

Mr. Bayard, Sec. of State, to Mr. McC'artee, Ort. 15, 1886, 161 MS. Dom.

Let. 011.
In this case Mr. Bigard declined to issue a passport to a Chinese woman

who was adopted in (hina by an American citizen and who desired
to go to Japan as a medical missionary in the service of an American
missionary society. Mr. Biyaril stated that, in the view the Depart-
ment took of the case, it wils not important to inquire as to the valid-

ity of the adoption under Chinese law. That adoption does not have the effect of naturalization, see Mr. Adee,

Second Assist. Sec. of State, to Mr. Goepel, Sept. 13. 1888, 169 MS.

Dom. Let. 657.
The nationality of a servant does not follow that of the master. (Mr.

Wharton, Assist. Sec. of State, to Messrs. Macy & Co., April 25, 1889,
172 MS. Dom. Let. 588.)

IX. NATURALIZITION INTERNATIONALLY INEFFECTIVE AS TO

ABSEVT FLILY.

1. MARRIED WOMEN.

$ 116.

“I have to acknowledge the receipt of your letter of the 21st ultimo in relation to the impediment interposed to the embarkation from Italy of the wife and children of Mr. Dominick Valon, a native of that Kingdom, now a naturalized citizen of the United States.

« PreviousContinue »