to Mr. Evarts
Vienna , December 24, 1880. (Received January 18, 1881.)
Sir: The questions arising under our laws of naturalization appear in endless variety, particularly in their application to children born before or after the naturalization of the parents, whether born in America or in foreign countries, and residing abroad after the return of their parents either to their original or other foreign country.
Another frequently recurring question relates to the action of a naturalized citizen in leaving the United States, returning to his original country and there residing, without any intention to ever return to the United States, and without actually resuming his former allegiance.
I beg to submit the points of three cases recently presented to this legation, and upon which I have been obliged to act:
i.—the case of gustav schwetzer.
This applicant stated his case as follows:
Native of Austria; migrated to the United States 1851; naturalized in New Jersey in 1856; returned to Europe August, 1859, with a passport signed by Lewis Cass, dated August 10, 1859, and has ever since resided in Austria, and has no intention of returning to the United States.
To my inquiry if he had conducted business or had property in the United States, he answered that he “had never conducted business or had possessed property there.” He is here married and has three children, born in Austria.
Thereupon I notified him that this legation entertained so serious a doubt respecting the continuance of his American citizenship that it would await instructions from the government before affirming it.
ii.—the case of anton wurglets and family.
Wurglets emigrated from Hungary in 1851, with the Kossuth emigration, to the United States; became a citizen August 6, 1856, in New York; lived sixteen years in America, working at his trade of shoemaker, and had children born there; after proclamation of amnesty in 1867 returned to Europe, and since 1869 has lived as a farmer in Hungary. His son Attila, born in New York in 1862, wishes to return there soon to live. All his children wish to return there, “to their native land.”
I directed in this case that passports should be granted, and regarded the United States citizenship of the family as continuing, though the father does not appear to intend personally to return to America.
iii.—the cases of henry huber and family and Frederick Huber and family,
arrested through the consulate at Prague, are as follows:
The father born in Switzerland in 1823; married there in 1846; his five eldest children also born there; emigrated with his family to the United States in 1854; naturalized in Ohio December 31, 1859; returned with his family to Europe May, 1860; one daughter, Fredericka, born in the United States April, 1858; his next daughter born in Bohemia (where the family then lived) in 1862; his eldest son, Heinrich, [Page 31] returned to the United States in 1864, and still lives there. His son Frederick married an Austrian subject in Austria, in 1876, and has one child born here. The son Frederick “intends” at some time hereafter, “to return to America.” The father’s “return is not distant.”
All the children were minors at the time of arriving in, and departing from, the United States, and the family is included in the passport issued by Lewis Cass in 1860.
He applies for renewal of this old passport, and for an original passport for the son Frederick above named.
My difficulty in arriving at a satisfactory decision in these cases arises from the language of our statute. Section 2167 seems to contemplate the case of minors emigrating without their parents, but may include other minors. Section 2172 intends minors living with their parents at the time of naturalization, but employs as to these the dubious expression “shall, if dwelling in the United States, be considered as citizens thereof.” Does that mean that our laws make them citizens by virtue of the father’s naturalization while they are minors living with him? or does it mean that the law considers them to be citizens only during their residence in the United States and withholds protection from them outside of the domestic jurisdiction? or that they are not to be considered our citizens at all, any where beyond their minority? Are they thrown back on arriving in Europe upon their born allegiance?
These cases bring up all these questions.
I have decided to grant the passport upon the facts alleged to Henry Huber, accompanied by his wife and minor children, and (with greater reluctance) to Frederick Huber, accompanied by his wife and infant child. Had they been living in the country of their birth, I should have declined it.
Calling the attention of the Secretary to the uncertainty of the law, and to my action thereunder,
I have, &c.,