No. 116.
Mr. Bayard to Mr.
Smithers.
Department
of State,
Washington, May 4,
1885.
No. 431.]
Sir: I have received Mr. Young’s dispatch No. 658,
dated the 23d February, with inclosure, informing the Department that he had
instructed the consul at Canton to recognize the right of John Frederick
Pearson to American citizenship, and have given it my careful attention as
well as Consul Sickels’ dispatch No. 135, of January 3, 1880, to the
Department, and Mr. Payson’s approval of his course in this matter, of March
24, 1880.
I inclose you an opinion on the question by the law officer of the Department
by which you will see that inasmuch as Pearson’s father was an American
citizen, the nationality of his mother previous to marriage would make no
difference in the son’s nationality, provided he was legitimate, unless the
father was a citizen of one of the States which prohibit marriage with
Chinese, of which there is no allegation in the present instance.
There appears to be no doubt of the son’s good faith, and in the previous
correspondence Consul Sickels speaks of him when at Bangkok as a young man
of good character, and very clearheaded and intelligent.
As regards his legitimacy, the best way to bring out the facts would be to
require Mr. Pearson to apply for a passport through the consul at Canton,
making an affidavit to the circumstances of his case as given in Consul
Seymour’s No. 101, of January 24 last, and substantiating it with
certificates of his birth and of his parents’ marriage at Shanghai, by Rev.
Father Desaggrue, which you say appears on the records of the Catholic
church. This will make a complete record of the case, one copy of which can
remain on the files of your legation, and another may be sent to this
Department.
I am, &c.,
[Page 172]
[Inclosure in No. 431.]
Department of State,
Law
Bureau, April 29,
1885.
The prevalent opinion undoubtedly is that the fourteenth amendment of the
Constitution of the United States does not confer citizenship on Chinese
not born in the United States. We have several adjudications from
Federal, circuit, and district courts to this effect, and although the
question has not been definitely settled by the Supreme Court of the
United States, yet not only from the terms of the amendment, but from
the weight of authority, I must hold that there can be no such
citizenship of Chinese born in China. But whether the legitimate child
of an American citizen, such child being born in China from a Chinese
mother, is an American citizen, is an entirely different question. As a
general rule the legitimate children of American citizens born abroad
partake of their father’s nationality. Were the question before us
whether or no an illegitimate child of an American citizen by a Chinese
woman would be an American citizen, the conclusion might be different;
but I can see nothing in the fact that the mother is a Chinese that
takes the case out of the general rule, that the child of an American
citizen born abroad acquires its father’s nationality. If such is the
case, the law that governs is the law of the father’s domicile.
There are, I believe, one or two States in the Union which prohibit the
marriage of white citizens with Chinese. There is no allegation in the
present case, however, that the father of the child, whose status is now
investigated, was domiciled in one of these States. I must, therefore,
hold that the child in question is prima facie a
citizen of the United States. No doubt the case may be embarrassed by
the statement in Mr. Seymour’s dispatch, hereto annexed, that the
question as to whether this son “was born in wedlock is not settled”;
but the rule of law undoubtedly is that, in doubtful cases, the
presumption in favor of legitimacy is to control, and the conclusion,
therefore, must be that John Frederick Pearson, whose rights are here
investigated, being a legitimate son of Frederick Pearson, by a Chinese
wife, assumes his father’s nationality. This view is strengthened by the
fact that a woman’s nationality merges on marriage in that of her
husband, and the Chinese wife of Frederick Pearson became, by the mere
fact of her marriage, an American citizen. The difficulty which
encounters us in the present case, however, is one that is independent
of the rules I have just stated. 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. The facts
which are rather referred to than stated, in the accompanying dispatch,
render it doubtful whether John Frederick Pearson made this election on
arriving at full age. If he did I hold that the election was final and
cannot be reviewed or recalled by any subsequent action on his part. But
the evidence as to this specific issue being by no means as full as
could be desired, I submit that the papers be remanded to the United
States minister in China for the purpose of further inquiry.
Respectfully submitted.
FRANCIS WHARTON,
Law
Officer.
