Mr. Blaine to Mr. Phelps.

No. 57.]

Sir: I have to acknowledge the receipt of your No. 49 of the 6th ultimo, with which you transmit passport returns for the quarter ending December 31, 1889. The Department appreciates the care they exhibit in the consideration of the various cases which have been acted upon.

The only case upon which it seems requisite to comment is that of Mrs. Emilie Heisinger and her minor son Carl, which is set forth in application No. 140. Mrs. Heisinger was born in Altona, Prussia. Her husband was also an alien by birth and came to the United States in May, 1866. He was naturalized August 18, 1871, and died probably not later than 1879. The son Carl was born in Philadelphia, in the State of Pennsylvania, January 21, 1871, more than 6 months before the naturalization of his father. In 1879 Mrs. Heisinger returned to Germany, taking her son with her, and has ever since resided in that country.

The facts raise two questions, one as to the status of the mother, the other as to the status of the son. Section 1994 of the Revised Statutes of the United States, which incorporates the second section of the act of February 10, 1855 (10 Stats, at Large, 604), provides as follows:

Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.

The scope of this enactment was considered by the Supreme Court of the United States in the case of Kelly v. Owen (7 Wallace, 496):

The terms [said the court] “married,” or “who shall be married,” do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman, who under previous acts might be naturalized, is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes by that fact a citizen also. His citizenship, whenever it exists, confers, under the act, citizenship upon her.

It follows from this decision that the naturalization of Mr. Heisinger as a citizen of the United States, whether before or after his marriage, conferred American citizenship upon his wife, she being, as is to be [Page 302] inferred from the facts stated, capable of naturalization as a citizen of the United States. The only circumstance, therefore, which raises a doubt as to her present American citizenship is her return, after the death of her husband, to her native country and her apparently permanent residence there. The view has been taken by this Department in several cases that the marriage of an American woman to a foreigner does not completely divest her of her original nationality. Her American citizenship is held for most purposes to be in abeyance during coverture, but to be susceptible of revival by her return to the jurisdiction and allegiance of the United States.

The Department would be glad to learn what the general rule is in Germany on this subject. Aside, however, from the legal effects of marriage upon the citizenship of a woman, there is also to be considered in the case of Mrs. Heisinger the question of the renunciation of adoptive allegiance under the treaty.

In the case of Carl Heisinger still another question is raised, in addition to that suggested in the case of his mother. Section 2172 of the Revised Statutes of the United States provides that—

The children of persons who have been duly naturalized under any law of the United States * * * being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.

Carl Heisinger appears to come within the provisions of this statute. He was born before the naturalization of his father, and was less than a year old at the time of such naturalization, and he is not now dwelling in the United States. In this relation, section 2172 of the Revised Statutes contains another pertinent provision, which is as follows:

And the children of persons who are now, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof.

It is a reasonable interpretation that the words “if dwelling in the United States “were intended, among other things, to meet the case of conflicting claims of allegiance. In this relation it is pertinent to disclose the origin of those words. On March 26, 1790, an act was approved entitled, “An act to establish an uniform rule of naturalization” (Stats, at Large, 103). This was the first law enacted by Congress on that subject. The first clauses prescribed the conditions and methods of naturalization. Then followed these words:

And the children of such persons so naturalized, dwelling within the United States being under the age of 21 years at the time of such naturalization, shall also be considered as citizens of the United States.

In 1795 the law of 1790 was repealed by an act of the 29th of January of the former year entitled, “An act to establish an uniform rule of naturalization, and to repeal the act heretofore passed on that subject” (1 Stats, at Large, 414). By the third section of the act of January 29, 1795, it was provided that—

The children of persons duly naturalized, dwelling within the United States and being under the age of 21 years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.

The law on this subject so remained until 1802, on the 14th of April, of which year, an act was approved entitled, “An act to establish an uniform rule of naturalization, and to repeal the acts heretofore passed on that subject” (2 Stats, at Large, 153).

[Page 303]

The fourth section of this act provides that—

The children of persons duly naturalized under any of the laws of the United States, * * * being under the age of 21 years at the time of their parents being so naturalized * * * shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who are now or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered citizens of the United States.

It will be observed that in this provision, which is incorporated in section 2172 of the Revised Statutes, the words “if dwelling in the United States” are transposed. The effect of this transposition was considered by the Supreme Court of the United States in the case of Campbell v. Gordon (6 Cranch, 176) in 1810. The case involved a title to land, which depended upon the citizenship of one Yanetta Gordon, née Currie, who was by birth a British subject. Her father, also a natural-born British subject, emigrated to the United States and in 1795 was naturalized. His daughter Yanetta was then residing in Scotland, where she remained until 1797, in which year she came to the United States. It was contended by counsel that she was not a citizen of the United States, inasmuch as she was not dwelling in the United States at the time of her father’s naturalization. The Supreme Court took a different view of the matter. Mr. Justice Washington, delivering the opinion of the court, said:

The next question to be decided is whether the naturalization of William Currie conferred upon his daughter the rights of a citizen after her coming to and residing within the United States, she having been a resident in a foreign country at the time when her father was naturalized. Whatever difficulty might exist as to the construction of the third section of the act of January 29, 1795, in relation to this point, it is conceived that the rights of citizenship were clearly conferred upon the female appellee by the fourth section of the act of April 14, 1802. This act declares that the children of persons duly naturalized under any of the laws of the United States, being under the age of 21 years at the time of their parents being so naturalized, shall, if dwelling in the United States, be considered as citizens of the United States. This is precisely the case of Mrs. Gordon.

The effect of the law, as thus expounded, is to make actual residence in the United States, and not residence at the time of naturalization, the test of the claim to citizenship; and here, as explanatory of this rule, it is important to observe the associated provision, found in all the acts above quoted, and incorporated in the same relation in section 2172 of the Revised Statutes, that children born of citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. Under this provision, such children are treated as citizens of the United States, whether dwelling in this country or not, being regarded as citizens of the United States by birth. The preceding provision relates to children born of parents who were not at the time citizens of the United States, and upon whom the country of the parents, under the same rule of law as that announced by this Government, might have claims of allegiance. In respect to such persons, the words “if dwelling in the United States” recognize a possible conflict of allegiance. They also recognize another principle, and that is that it is not within the power of a parent to eradicate the original nationality of his child, though he may, during the minority of such child, invest him with rights or subject him to duties which may or may not be claimed or performed. For this reason, also, it is provided that children not born citizens of the United States are, by virtue of the naturalization of their parents, to be considered as citizens of the United States “if dwelling” therein.

The Departnent does not desire to be understood to assert that natural-born [Page 304] subjects of a foreign power whose parents have been naturalized in the United States must at every moment be dwelling in the United States in order to claim its citizenship. That question does not arise in the present case. The words “if dwelling in the United States,” whether meaning residence at a particular moment or contemplating a settled abode, apply to Carl Heisinger, who, being now 19 years of age, has for about 11 years been dwelling in Germany. It is not known that the Government of that country has made any claims upon him. But, if the German Government should, under a provision of law similar to that in force in the United States in relation to the foreign-born children of citizens, seek to exact from him the performance of obligations as a natural-born subject, the Department would be bound to consider the provisions of section 2172 of the Revised Statutes.

I am, etc.,

James G. Blaine.