No. 286.

Mr. Frelinghuysen to Mr. Kasson .

No. 83.]

Sir: Your No. 36, of the 13th of October last, reports your recent action upon two naturalization cases, concerning which you desire the supervisory consideration of this Department.

The first case, of Ludwig Hausding, appears to have been decided according to the law and the facts. It is stated that, having been born [Page 395] in the United States of a Saxon subject, he was removed to his father’s native land, where he has ever since remained, although his father has subsequently become a citizen of the United States. You refused a passport on the ground that the applicant was born of Saxon subjects, temporarily in the United States, and was never “dwelling in the United States,” either at the time of or since his parent’s naturalization, and that he was not, therefore, naturalized by force of the statute, section 2172, Revised Statutes.

It does not appear from your statement whether Wilhelm Hausding, the father, had declared his intention to become an American citizen before the birth of Ludwig. While this, if it were established, would lend an appearance of hardship to an adverse decision upon his claim to be deemed a citizen, yet, even in this case, as the statutes stand, your decision would conform to the letter of the law, section 2168, which admits to citizenship, on taking the oath prescribed by law, the widow and children of an alien who has declared his intention but dies before completing his naturalization. By providing for special exemption excludes the idea of any other exemption, as for instance in the case of the non-completion of the father’s naturalization before the permanent removal of the minor son from the jurisdiction of the United States.

Not being naturalized by force of the statute, Ludwig Hausding could only assert citizenship on the ground of birth in the United States; but this claim would, if presented, be untenable, for by section 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power.

This last consideration serves also to answer the “quære” which you annex to your statement of the Hausding case. You ask. “Can oneborn a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.” Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation: that the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship; and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.

Your decision granting a passport in the case of Johannes Weber is approved. In a case like this much depends upon the bona fides of the applicant, and his evident intent to return to the United States, as to which the minister must necessarily be the best judge of his duty in granting or withholding a passport.

Your second “quaere,” as to the meaning of the phrase “if dwelling in the United States,” found in section 2172, Revised Statutes, is one of a hypothetical class as to which the general rule of the Department counsels no decision being made in advance of a specific case arising. No such case has, so far as I know, been presented for the decision of the Executive or the courts of the United States.

It would, however, be in fact difficult to see how, in the light of section 1999 of the Revised Statutes, which declares any decision of any officer of the Government tending to restrict the right of expatriation and change of allegiance to be “inconsistent with the fundamental principles of the Republic,” and of section 2000, which declares that “all naturalized citizens of the United States while in foreign countries are [Page 396] entitled to and shall receive from this Government the same protection of persons and property which is accorded to native-born citizens,” any branch of the Government could well maintain that the children of persons duly naturalized in the United States, and therefore also citizens by law, should lose that status by the mere act of passing beyond the territorial jurisdiction of the United States, especially if they passed within the limits of a third state not of the original allegiance, which could under no circumstances lay claim to their subjection. It can be seen how such an interpretation might regard a citizen of the United States as a citizen of no country whatever, through the sole fact of setting foot outside of our territory, and how, by again setting foot within our borders, his right of citizenship might be deemed to revive unimpaired.

As you remark, “the construction of the phrase as meaning that the minor children who become citizens through the naturalization of their father must be, at the time of their father’s naturalization, dwelling in the United States, would allow a young man to join his father in the United States a week before his naturalization, and return to his native land a week after, a full-fledged American citizen, while still in his minority, and without renunciation of old allegiance or swearing to the new.” That such a thing is possible is a defect in our existing naturalization laws.

The President, in his last message, called the attention of Congress to the advisability of recasting the statutes in this respect, in order to remove obscurities and contradictions, and surround the acquisition of American citizenship with safeguards commensurate with the high privileges and obligations which it confers and creates.

I am, &c.,

FRED’K T. FRELINGHUYSEN.