No. 116.

Mr. Bayard to Mr. Smithers.

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.]

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.

Law Officer.