Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 9, 1891
Mr. Phelps to Mr. Blaine .
Berlin , October 21, 1891. (Received November 7.)
Sir: I inclose a copy of the last note I addressed to the foreign office in regard to the case of John Haberacker.
You will notice that as far as possible I made my protest against the unfavorable decision of the case communicated to me on March 2 last entirely in the spirit and almost in the words of Mr. Wharton’s instruction No. 229, of March 26. I could not conceive a better form in which to present our argument.
As yet I have received no answer.
I have, etc.,
Mr. Phelps to Freiherr Marschall .
Berlin , April 20, 1891 .
In acknowledging the receipt of the communication from the imperial foreign office, dated February 28, 1891, which conveys to the undersigned the conclusion of the Royal Bavarian Government that the claim made by John Haberacker, now performing military service in Bavaria, that he is an American citizen, is not proven, the undersigned, envoy, etc., of the United States of America, begs to submit to his excellency Freiherr Marschall von Bieberstein, imperial secretary of state for foreign affairs, the following consideration, as calculated to show that the Royal Bavarian Government, in its examination of the law and decision of the United States fell into a misconception not unnatural in the circumstances.
Article 1 of the treaty between the United States and 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 the United States, and that whether or not he has become a naturalized citizen is to be determineed solely by the local law there, and adds: “The Royal Bavarian Government believes that John Haberacker should continue to serve under German colors, unless it is clearly shown by American authorities that he has, under the law of the United States, acquired American citizenship through the marriage of his mother with an American.”
The Government of the United States claims that Haberacker is a citizen under the facts of his case as stated in the original application for his discharge from military service. The Bavarian Government objects to the claim because “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 seems in this assumption to overlook entirely the fact, that section 1993, to which reference is made, is not a part of and does not relate in [Page 520] any way to the naturalization laws of the United States. 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 that nationality depends upon the place of birth. The second section adopts in part only the other theory—that the nationality of the person depends upon the nationality of the parents. In this respect the laws of the United States 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.
Section 1993 is a restrictive statute, and provides as to children horn 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 that country. These restrictions relate solely to the determination, under the laws of the United States, of the national status of the 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 the naturalization laws of the United States, 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 the United States 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. These two sections point out some but not all the several methods by which aliens can be and are admitted to citizenship in the United States. Although section 1994 is not found in title xxx in connection with most of the laws on the subject of naturalization, it is nevertheless 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 the 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.
Haberacker’s mother, by her marriage to Knauss, an American 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 the United States 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 father the mother often becomes the natural protector of the child. Such a child can only be excluded from the benefit 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 provisions 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 this legation’s note of September 23 last. 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 in a single American court.” It is found upon 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 no cases are found which even by implication throw any doubt upon the correctness of those decisions. In consideration of the uncontradicted opinion of the supreme court of two of the 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.
The undersigned avails, etc.,