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1. That, at the time of his birth, his political as well as civil status was in the United States.
2. That, under ordinary circumstances, his status in both relations would have followed that of his father when the latter returned to Germany and resumed his German nationality, but that, as the ceruificate of readmission by its own terms impliedly excluded the son, the change of the father's nationality and domicil did not affect the nationality and domicil of the child; that the German Government not only accepted the father's change of nationality on the conditions specified, but, by requiring the son to return to the United States at a specified time, conceded the continuance of the latter's American nationality.
Mr. Kasson, min. to Germany, to Mr. Bayarı, Sec. of State. April 15,
1885; Mr. Bayard, Sec. of State, to Mr. Pendleton, min. to Germany, May 12, 188.), For. Rel., 1885, 108, 414.
By the law of nations, an infant child partakes of his father's nationality and domicil."
Mr. Porter, Act. Sec. of State, to Mr. Winchester, min. to Switz., Sept. 14,
1885, For. Rel. 1885, 811.
" It has been settled by frequent rulings in this Department that when a child, who is born in the United States to a father temporarily here residing, returns with his father to the latter's country of native allegiance, such child cannot, during his minority and his residence in such country, call on this Department to intervene in bis behalf against such country. In the present case the child was posthumous; the father, though he had taken up a ' permanent residence here and had therefore acquired a New York domicil, had been here but four years at the time of his death, and had not been naturalized; and the mother, in 1870, when the child was one year old, took him back to Germany, where she has resided with him ever since. An interesting question here arises as to whether a widowed mother can, by the principles of international law, change, by her own action, without the approval of the court of the child's domicil, the child's domicil and nationality. That it cannot be so changed is held by eminent continental jurists. (Bar, $ 31; 1 Foelix, pp. 5+, 55, -94; Denisart, Domicile, $ 2.) "Der Wittwe,' says Bar, whose authority both in Germany and this country is deservedly high,
kann dagegen das Recht das Domicil ihrer minderjährigen Kinder zu verändern, nicht zugestanden werden.' To the same effect is Lamar . Micou, 112 U. S. 452. According to this view the mother of the child in question could not, on the bare facts stated to us, change his domicil so as to withdraw him from the protection of the United States. But as he is now in Germany the question is
one which, if military service be insisted on, must be presented to the German Government for consideration, and their views heard before this Department can express any final determination in this relation.
* The treaty of 1868 provides that citizens of the North German Confederation, who become naturalized citizens of the United States of America and shall have resided uninterruptedly within the United States five vears, shall be held by the North German Confederation to be American citizens, and shall be treated as such.' This, however, does not say that persons not falling within this class who are domiciled in the United States shall not obtain from Germany those rights to which such persons are entitled by international law.”
Mr. Bayard, Sec. of State, to Mr. Liebermann, July 9, 1886, 160 MS. Dom.
Let. 607. “ The general view held by this Department is that a naturalized American citizen by abandonment of his allegiance and residence in this country and a return to the country of his birth, animo manendi, ceases to be a citizen of the United States; and that the minor son of a party described as aforesaid, who was born in the United States during the citizenship there of his father, partakes during his legal infancy of his father's domicil, but upon becoming sui juris has the right to elect his American citizenship, which will be best evidenced by an early return to this country.”
Mr. Bayard, Sec. of State, to Mr. de Weckherlin, April 7, 1888, For. Rel.
1888, II. 1341. A person who stated that he was a German by birth, that he served in the United States Navy during the Civil War, and that he had been a citizen of the United States since 1876, but that he intended to visit Prussia “ to stay for several years and perhaps permanently,” inquired (in 1896) as to what would under these circumstances be the status of himself and his four minor sons, the eldest of whom was nineteen years of age and the youngest four. The Department of State, referring to Art. IV. of the treaty with the North German Union of Feb. 22, 1868, by which the renewal of residence in the country of origin, without an intent to return to the country of adoption, operates as a renunciation of naturalization, replied that, in case of such renewal of residence, the children, though they were born in the United States, “ would be required to elect citizenship on attaining their majority, provided they were still within German jurisdiction," and that, if they decided to retain their American citizenship, “ the best evidence of this fact would be their return to the United States to remain and discharge their obligations and duties as such."
Mr. Olney, Sec. of State, to Mr. Materne, May 29, 1896, 210 MS. Dom.
3. ELECTION AT MAJORITY.
“ It is quite clear that the two young Boisseliers, being native born citizens of the United States, and now subject to the jurisdiction of the United States, can not be held under any law, municipal or public, to owe military service to the German Government. Their rights rest on the organic law of the United States. The Constitution declares (Article XIV. of the Amendments) That all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' This is the supreme law of the Republic, available alike to all its citizens, whether native or naturalized, and binding upon every Department and officer of this Government. The brothers Richard and Caspar Boisselier, in their present political status, fulfil all its conditions. Their father, it is true, took them to Schleswig when they were quite young, the one four and the other two years old. They lived there many years, but during all those years they were minors, and during their minority they returned to the United States; and now, when both have attained their majority, they declare for their native allegiance and submit themselves to the jurisdiction of the country where they were born and of which they are native citizens. Under these circumstances, this Government cannot recognize any claim to their allegiance, or their liability to military service, put forth on the part of Germany, whatever may be the municipal law of Germany under which such claim may be asserted by that Government.
“ It follows from this view that any property which they now possess in the German dominions, and any property which they may hereafter acquire in that country, either by purchase, inheritance, or testamentary succession, must be held to be free from liability on grounds arising from their refusal to submit themselves to that Government for the performance of military service. Whether or not the father, Carl Gerhard Boisselier, may by his continued residence in Schleswig have resumed his original nationality and renounced his American citizenship is a question which I do not now undertake to determine nor is its determination deemed essential to the present question."
Mr. Evarts, Sec. of State, to Mr. White, min. to Germany, June 6, 1879,
MS. Inst. Germany, XVI. 469.
He returned to Schleswig in 1856, after having lived in the United
His two sons were born in St. Louis, Mo., in 1852 and 1854, respectively. Though their father took them with him to Schleswig, they returned to America during their minority. Sub
sequently they received notices from the Schleswig authorities to
White, min. to Germany, July 28, 1880, MS. Inst. Germany, XVI. 592.
Mr. Frelinghuysen to Mr. Kasson, Feb. 7, 1885, MS. Inst. Germany,
P. was born in New York in 1854. His father was a native of Denmark, but was said to have been naturalized in the United States; his mother was of American nativity. At the age of four years he was taken abroad by his parents, with whom he lived, at times in England and at times in Denmark. On attaining his majority, being then in Denmark, the authorities called upon him for military service. He asserted his American citizenship. The authorities recognized it, but commanded him as an alien to leave the country. He repaired to England; but, after some years' stay there, returned to Denmark, where, at the instigation of his father, he was put into a lunatic asylum. From the asylum he was soon discharged; but when he again sought to go to England, with a view, it was alleged, to proceed to the United States, the Danish authorities, at the instigation of his father, prohibited him for the time being from leaving the country. He then invoked the interference of the American legation. On these facts Mr. Evarts, while holding that P. was a citizen of the United States by birth, said: “ He lost no time, when he attained the age of majority, in declaring that he claimed the United States as his country, and that he considered himself a citizen of the United States. He appears to have adhered to this choice ever since, and now declares it to be his intention to return to this country and reside here permanently. His father's political status (whether a citizen of the United States or a Danish subject) has no legal or otherwise material effect on the younger P-__'s rights of citizenship. Under these facts and conditions it will be proper for you to bring the claim to the
attention of the Danish Government, with a view to the removal of · any obstacles to his departure that may now exist at the instance
of the local authorities. It is not doubted but that a simple statement of the facts will be sufficient to accomplish that result."
Mr. Evarts, Sec. of State, to Mr. Cramer, No. 337, Nov. 12, 1880, 15 MS.
Inst. Denmark, 226.
“ We now reach a point less easy of decision, and that is, assuming that the father resumed German citizenship during the son's minority, what are the son's rights as against this Government upon reaching the age of twenty-one years, for there is no doubt that during minority his rights, if he had any other than those possessed by his father, were at least suspended and subject to the father's allegiance.
“ The statute of the United States (Revised Statutes, section 1993) declares that all children born without the United States whose fathers were or may be at the time of their birth citizens thereof," are themselves citizens of the United States, but that right shall not descend to children whose fathers never resided in the United States.'
“Therefore, if Mr. Karl Klingenmeyer's father was at the time of his son's birth a citizen of this country, the son was such a citizen, while possibly by the German law (which I have not at hand) he might also be a citizen of the place of his birth. On general principles such conflicting citizenship is decided according to the laws of the one of the two countries claiming allegiance within whose jurisdiction the individual happens to be. (13 Op. At.-Gen. 89.)"
Mr. Frelinghuysen, Sec. of State, to Mr. Kasson, min. to Germany, Jan.
15, 1885, For. Rel. 1885, 396, 397.
“ While the law is indisputable that the child of an American father, born abroad, takes his father's nationality when an infant, I apprehend that the rule also is settled that when he arrives at full age he may elect or surrender such nationality and accept that of the country of his birth and residence. The preponderance of authority is that when such election is made it is final."
Opinion of Dr. Francis Wharton, law officer of the Department of State,
April 29, 1885, communicated by Mr. Bayard, Sec. of State, to Mr.
In cases of double allegiance, the child, when he becomes of
age, required to elect between the country of his residence and the country of his alleged technical allegiance. Of this election two incidents are to be observed; when once made it is final, and it requires no formal act, but may be inferred from the conduct of the party from whom the election is required
If he Robert Emden, born in Switzerland in 1802, and now 23 years old, his father being a person of Swiss origin, who had been naturalized in the United States) solemnly elected, on arriving at full age, to be a citizen of the United
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