No. 134.
Mr. Brulatour to Mr. Frelinghuysen.

No. 370.]

Sir: Mr. George Schmidt, an Austrian by birth, who obtained naturalization papers at Cincinnati on the 1st of June, 1883, and who holds a passport from the State Department, dated June 3, 1883, applied to this legation for passports for his two sons, Otto and Gustavus, on the ground that, being both under age, his own naturalization had also conferred upon them the privileges of American citizenship.

Messrs. Otto and Gustavus Schmidt having declared that they had never been in the United States, Mr. Vignaud, in a letter, copy of which [Page 271] is herewith inclosed, informed their father that they could not be recognized by this legation as American citizens; that the act of 1802 (section 2172 of the Revised Statutes), which confers American citizenship to the minor children of persons who have been duly naturalized, has that effect only when such children are dwelling in the United States, and that it was doubtful whether they could now take advantage of that act, even by fixing their residence in the United States.

Mr. Schmidt was nevertheless informed that, should he so desire, the case would be submitted to your decision, and at his request I have the honor to lay the matter before you, with this additional statement, made subsequently by Mr. Schmidt, that his sons were in reality dwelling in the United States when he became naturalized, and that this fact, which is well known to people residing at Cincinnati, was concealed at first for private reasons, the character of which could not be well understood at the legation.

Though the circumstances of this peculiar case seem to be plain enough to warrant the refusal of a passport to Messrs. Otto and Gustavus Schmidt, other cases of the same nature may arise when it may be necessary to be authoritatively informed whether these words of the act of 1802, “if dwelling in the United States,” mean dwelling within the United States at the time of the naturalization of the parents.

The books of reference within reach of this legation give no precedent bearing exactly upon the point. In Campbell vs. Gordon (6 Cranch, 176) the Supreme Court has held that “a minor child of a Father who was naturalized became a citizen, though not then within the United States, provided she was a resident therein at the time of the passage of the act.” (Digest of Published Opinions, &c., p. 160.) But this is an exceptional case, the circumstances of which cannot possibly recur.

Decisions of State courts are quoted (Gianque: Election and Naturalization Laws, p. 58) in favor of the construction that the children to whom the act of 1802 applied must be dwelling in the United States at the time of the naturalization of their parents; but it has not been possible to verify these quotations (see West vs. West, 8 Paige, N. Y.; Re Morrison, 22 Howard, N. Y.).

Hoping that the Department will kindly give its attention to this matter,

I have, &c.,

[Inclosure 1 in No. 370.—Translation.]

Mr. Vignaud to Mr. Schmidt.

Sir: Invoking the principle that the naturalization of the father entails that of infant children, you represent that you have renounced Austrian nationality to acquire, on June 1, 1883, American citizenship, and that you desire an American passport for your children, Otto Schmidt, aged 19 years, and Gustavus Schmidt, aged 18 years, who propose to travel in Servia.

By act of the 14th of April, 1802 (section 2172, Rev. Stats.), it is true that the children of those who obtain American naturalization become, by this fact, Americans themselves, but it is only upon condition that they reside in the United States—“if dwelling in the United States,” says the text.

Your sons (and yourself) having acknowledged that they have never been to the United States, it is not possible to apply to their case the provision of this act, and to consider them as American citizens. This legation, therefore, to its great regret, finds itself under the necessity to refuse the passport desired. I may add that [Page 272] think it doubtful whether your sons can benefit of the act of 1802, even if they go to the United States and establish their domicile there, because the context of the law implies that the residence in the United States of the minors in question should take place at the moment of the naturalization of the parents.

If, however, you so desire, sir, the chargé d’affaires will, with pleasure, submit the case to the Department of State at Washington, and ask whether it is possible to deliver a passport to your sons, and in the contrary case what facilities are secured to them by the act of 1802.

I have the honor to return herewith the documents you left with me, viz, your certificate of naturalization, your passport, and the Austrian passports of your sons.

Please accept, &c.,

Second Secretary.