Mr. Wharton to Mr. Phelps.
Washington, March 26, 1891.
Sir: I have to acknowlege the receipt of your dispatch No. 245, of the 2d instant, relative to the case of John Haberacker, held to military service in the Bavarian army, in which you transmit the reply of the imperial foreign office to your intervention in his behalf in accordance with the instruction of this Department, No. 146, of September 8 last.
Article i of our treaty with Bavaria, concluded May 26, 1868, provides that—
Citizens of Bavaria who have become, or shall become, naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States for five years, shall be held by Bavaria to be American citizens and shall be treated as such.
The reply of the imperial foreign office admits Haberacker’s requisite residence in this country, and that whether or not he has become a naturalized American citizen is to be determined solely by the local law of the United States. Hence that reply says:
The Royal Bavarian Government therefore believes that John Haberacker should continue to serve with the flag, unless it is convincingly proven by appropriate American authority that by the law of the United States he has acquired American citizenship by the marriage of his mother with an American.
This Government’s view of Haberackers citizenship is objected to on the ground that—
In section 1993, Revised Statutes, the principle is laid down that the citizenship of the father decides that of the children, and it is not to be assumed that this principle, which coincides with all known views of law, was intended to be modified by section 1994 or section 2172.
The Bavarian Government entirely overlooks the fact that section 1993, to which reference is made, is not a part of, and does not in any way relate to, our naturalization laws.
It and the previous section (1992) define who are native born citizens of the United States. The first of the two sections adopts in its entirety the principle of nationality of origin dependent upon the place of birth. The second section adopts in part only the other theory of dependence upon the nationality of the parents. In this respect the laws of this country do not differ materially from the laws of most other countries, in which both elements jus soli and jus sanguinis, as a rule, exist, though not always the same one predominating. (Cockburn on Nationality, chap. 1.)
Section 1993 is a restrictive statute, and provides, as to children born out of the limits and jurisdiction of the United States, that only those are citizens thereof by birth whose “fathers” (1) were citizens, and (2) were such at the time of the birth of the child, and (3) have at some time resided in this country. These restrictions relate solely to the determination, under the laws of the United States, of the national status of a child at birth. Each of the restrictions may be presumed to have been used intentionally, and all of them, from their very nature, could not have been used in our naturalization laws, even if it had been desired. Excepting the case of posthumous children, every child at birth has a father, and if a child is to inherit citizenship it most properly takes that of the father. The United States could scarcely have claimed the citizenship of children born in a foreign country of an American mother and an alien father, while, on the other hand, if the father was a citizen the mother would be one also under our laws by virtue of her marriage.
There is no question as to Haberacker’s status at birth. It is only on account of being born an alien that he comes within the purview of sections 1994 and 2172, which relate solely to citizenship by naturalization.
Those two sections point out some but not all of the several methods by which aliens can be and are admitted to citizenship in this country. Although section 1994 is not found in title xxx in connection with most of the laws on the subject of naturalization, it is nevertheless solely a naturalization law. It is uniformly held under it that an alien woman, who might herself be lawfully naturalized, by marriage to a citizen becomes herself a citizen without any previous declaration or act on her part, or without reference to the previous length of her residence in this country, as fully to all intents and purposes as if she had become a citizen upon her own application and by the judgment of a competent court.
Haberackers mother, by her marriage to Knauss, a citizen, was accordingly “duly naturalized under any (a) law of the United States.” It only remains to determine whether she is a “person” within the meaning of section 2172. If so, her minor son, residing with her at the time in this country, likewise became a citizen. The word “person” may be presumed to have been used as intentionally in this section as the word “fathers” was used in section 1993. By the death of the [Page 509] father the mother often becomes the natural protector of the child. Such a child can only be excluded from the benefits of section 2172 by a forced construction of its language, which view is also strengthened by the fact that it reads: “The children of persons who have been duly naturalized under any law of the United States.” It clearly contemplates the case of persons naturalized under other than the regular and usual provision with respect thereto.
The exact point at issue was decided in the case of the United States vs. Kellar (13 Federal Reporter, 82), to which reference was made in Department’s instruction No. 146, of September 8. It was decided in the court of next highest jurisdiction to the Supreme Court of the United States, and by Mr. Justice Harlan, one of the most distinguished judges of the Supreme Court. The same question is not known to have ever been passed upon by the Supreme Court, but it is not a question of itself alone appealable to that court. The decisions, however, of the State and Federal courts have been uniform with respect thereto.
Judge Harlan, in the course of his opinion, said:
The case seems to be so distinctly one of those embraced by the very language of section 2172 that argument could not make it plainer.
The Kellar case, decided in 1882, is not a “conflicting decision of a single American court.” I find upon a little investigation that section 2172 has been construed in exactly the same way to confer citizenship upon the minor child of a widow marrying a citizen, in 1885, by the supreme court of the State of New York, in the case of the People vs. Newell (38 Hun., 78), and again in 1888 by the supreme court of the State of Missouri, in the case of Gunn vs. Hubbard (97 Mo., 321), and I fail to find any cases which, even by implication, throw any doubt upon the correctness of those decisions. In consideration of the uncontradicted opinion of the supreme courts of two of our greatest States and the decision of one of the justices of the Supreme Court of the United States upon this point, it is believed that the Royal Bavarian Government will accept this interpretation as correct in the premises and readily assent to treat Haberacker as an American citizen.
With reference to the suggestion in your dispatch whether Haberacker is really held to service against his will, I would say that his case was presented to the Department by his brother and strongly urged for immediate action. It has since that time also been the subject of repeated inquiry by the member of Congress representing the district where Haberacker’s family resides. Until the contrary appears, therefore, the Department is bound to believe that he is so restrained. But it is only necessary to request that he be released if he so desires. The opportunity for that having been given, he of course may avail himself of it or not as he chooses.
I am, etc.,
Acting Secretary.