No. 358.
Mr. Foster to Mr. Evarts.

No. 996.]

Sir: I transmit herewith a copy of a communication from Mr. Strother, consul-general in this city, referring to citizenship of James W. Smith, lately deceased, and to the rights of his minor children.

During the French intervention and Maximilian empire in Mexico in 1866–’67, Mr. Smith rendered important services to the republican army and government, both personal and of a pecuniary or property character, whereby a claim accrued to a considerable amount, say $150,000 or more. In 1876 Mr. Smith took part in the revolution under General Porfirio Diaz, and upon the triumph of the revolution and the establishment of the same as the government of Mexico, Mr. Smith was appointed to and accepted the position of colonel in the Mexican army, and was understood to be in said service at the time of his death.

The Mexican law of January 30, 1856, now in force, says:

Art. 7. The foreigner shall he held as naturalized:

I. If he accepts any public charge (cargo) of the nation or belongs to the army or navy.

The government official organ has recently referred to this law and stated that according to its provisions foreigners who accept any office in the government, either civil or military, by that act become Mexican citizens.

It is highly desirable that the status of American citizens who accept service under the Mexican Government be fixed and made known, as the cases are not unusual.

I have, therefore, respectfully to request the views of the Department upon the questions presented in Consul-General Strother’s communication and the facts noticed in the present dispatch.

I am, &c.

[Page 816]
[Inclosure in No. 996.]

Mr. Strother to Mr. Foster.

Sir: I would beg leave to present for your consideration some questions which have been suggested by the application of Mrs. Mary Smith for permission to register the birth of a child at this consulate-general.

The case may be stated as follows: It appears from the official records that on the 6th day of April, 1864, James Wiley Smith, a native of Louisiana, and recognized citizen of the United States residing in Mexico, and Mary Miller, a daughter of John Miller, a citizen of the United States residing in the city of Puebla, were lawfully married in the presence of Marcus Otterbourg, United States consul at this city, and other witnesses. It further appears from the same record that on the 15th of June, 1869, the said James Wiley Smith, before John S. Cripps acting vice-consul of the United States, made declaration that on the 30th of May, 1869, a son was born to him by his lawful wife, Mary Smith, and named James Wiley Smith, which birth was duly registered in the consular record book for the uses and purposes thereto pertaining.

There is evidence to show that a second son was born on the 27th January, 1872, named John Barton Smith, but for some reason not explained, the birth of this son was not entered on the consular record.

It is also of public notoriety that some time during the year 1877, the said James Wiley Smith, otherwise known as “Santiago Smith,” accepted a position in the Mexican military service under General Porfirio Diaz, since President of the republic.

Oh the 5th June, 1879, the said James Wiley Smith died leaving a widow and two sons.

On Monday, 14th instant, the widow, Mary Smith, appeared at this consulate-general, attended by the proper witnesses, and requested permission to register the birth of her second son, John Barton Smith, born January 27, 1872, as above stated, desiring to secure for him such claim to American citizenship as the act of registration is presumed to exhibit.

Under the circumstances I decided to accord the permission, and the registration was completed.

Nevertheless, the case suggests three questions which I beg leave to present to higher authority for solution.

  • First. If a native-born citizen of the United States residing in a foreign country should, under any circumstances, enter the civil or military service of the said country without first obtaining permission from his own government, does he thereby forfeit his claim to his former citizenship?
  • Second. If so, does this forfeiture react upon the claims and privileges supposed to be secured to a child previously registered at an American consular office?
  • Third. After the death of the father, under the circumstances as stated, will the declaration and registration by the widowed mother be recognized as of any validity in securing the desired privileges to the orphaned children?

I am, &c.,

United States Consul-General.