Mr. Blaine to Mr. Phelps.
Washington, March 19, 1892.
Sir: I have to acknowledge the receipt of your dispatch No. 363, of December 3 last, relative to the case of John Haberacker, in which you inclose a copy of a note dated December 1 from the German foreign office in reply to your note of April 20, 1891. It states that—
The Royal Bavarian Government has made a renewed and thorough investigation of the case of John Haberacker, but finds no reason for discharging him from the Bavarian army.
It is desirable to recall at this time the facts upon which the present difference in opinion of the two Governments arises. They were briefly summarized in instruction No. 146, of September 8, 1890, as follows:
John Haberacker was born in Windsheim, Bavaria, on August 18, 1869, and has but very recently attained his twenty-first year. His father was a subject of Bavaria and died in that country in 1883, when John was 14 years old. His mother emigrated to the United States the same year (1883), bringing her minor children with her. Three years later, in 1886, the widow Haberacker married one Andrew Krauss, a Bavarian by birth, but then for thirty-three years a citizen of the United States by naturalization. About three months ago Mr. Krauss and his wife went to Bavaria to visit relatives at Windsheim, taking with them John Haberacker, who had not reached full age. They returned in July, leaving John in Windsheim for a further stay of a fortnight. On August 3, a few days before he had arranged to return to the [Page 523] United States, John Haberacker was arrested as liable to military service and taken to Uffenheim, where a partial examination was had. Thence he was taken to Anspach, where he was heard before a military court, and adjudged liable to three years’ service as a Bavarian subject in the armies of the Kingdom. He was accordingly assigned to the Fourteenth Regiment of Infantry, on duty at Nuremburg, where he was when last heard from.
The foregoing statement of the case has not in the course of this protracted discussion been brought in question.
It was held in 1882, in the United States circuit court, by Mr. Justice Harlan, that—
Upon the marriage of a resident alien woman with a naturalized citizen, she, as well as her infant son dwelling in this country, became citizens of the United States as fully as if they had become such in the special mode prescribed by the naturalization laws. (United States vs. Kellar, 13 Fed. Rep., 82.)
You were instructed, therefore, and you so notified the imperial office, that Haberacker was a naturalized American citizen.
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.
As there was no question that Haberacker had “resided uninterruptedly within the United States for five years,” you were instructed to represent to the German Government the unlawfulness of his enforced detention for military duty, and to request his discharge.
Baron Rotenhan, in his note to you of February 28, 1891, said that—
The Royal Bavarian Government does not consider the American citizenship of John Haberacker, now performing military service in Bavaria, as proven.
And his note concludes with the statement that that Government “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 was important as limiting the real question at issue. It admitted the requisite residence of Haberacker in this country, and it also admitted, what this Government holds to be incontrovertible, that whether Haberacker is a naturalized American citizen is determinable solely by the local law of the United States.
In replying, on April 20, 1891, to the foregoing note, you pointed out that the exact question in issue had not only been decided by the United States circuit court in the case of the United States vs. Kellar, cited above, but also by the supreme court of the State of New York, in People vs. Newell (38 Hun., 78) and by the supreme court of the State of Missouri, in Gummas. Hubbard (97 Mo., 321). To these uncontradicted decisions might be added, also, that of the supreme court of the State of Illinois to the same effect in Kreitz vs. Behrensmeyer (125, 111, 141). Under our system of law, the decisions of the courts upon the construction and scope of a statute are conclusive. Haberacker’s American citizenship, therefore, is as clearly established as if the language of the statute had been expressly drawn to cover his case. Although the language of Baron Rotenhan’s note of December 1, 1891, is not so clear in that regard as might be desired, I understand from it that he does not longer contest that point. This relieves me from the embarrassment, under which I have heretofore labored, of attempting to discuss a case which, in the language of Mr. Justice Harlan, “seems [Page 524] to be so distinctively one of those embraced by the very language of section 2172 that argument could not make it plainer.”
But now the Royal Bavarian Government rests its case upon an entirely new point. Baron Rotenhan’s note concludes as follows:
From this standpoint it amounts to nothing that Haberacker, according to American decisions, is regarded as an American citizen. It is enough that he did not become a “naturalized citizen of the United States.”
The reasoning of his note, which, while impliedly admitting that Haberacker has become a citizen of the United States, denies that he is a naturalized citizen, and so comes within the provisions of article 1 of the treaty of 1868, I quote in full. It is as follows:
Under title xxx of the Revised Statutes, headed “naturalization,” the manner in which the naturalization of foreigners is to be effected is determined; and in section 2165 it is expressly stated that this is to be done as prescribed therein, “and not otherwise.” True, it is stated in section 2172 that minor children of persons duly naturalized are to be regarded as American citizens; but if, on this account, Haberacker’s personal naturalization would not be required, it would in all events be necessary that his mother at least had become naturalized. But even this is not the case. Haberacker’s mother became an American citizen by her marriage with an American citizen, according to section 1994 of the Revised Statutes. This legal provision can not, however, be regarded as a special manner of naturalization. It is not to be found in title xxxof the Revised Statutes, headed “naturalization,” but, as is the case with section 1993, in title xxv, headed “citizenship.” In the envoy’s note above referred to it is expressly stated that section 1993 is not a part of the American naturalization laws, and in no wise applies to naturalization. The same must be said of section 1994. If the word “naturalized” had been omitted in the treaty of 1868, the above section might perhaps apply to a case such as that now under consideration. This view is debarred by the express use of that word, and it could hardly have been thought of when the treaty was negotiated, for, according to the principles of American law, which in this instance are precisely the same as the German, the marriage of an American woman to a foreigner can not deprive the children of her first marriage of their American citizenship.
The full meaning of such a contention is worthy of notice. If Haberacker is not a naturalized American citizen, it is simply because his mother is not. If she is not, then none of the wives of former subjects of Bavaria naturalized in this country are naturalized citizens and entitled to the protection of the treaty; and its intended scope would be most seriously reduced.
The inference drawn from these words, “and not otherwise,” is a superficial one, which an understanding of their historical origin ought to dissipate and the decisions at least completely negative. Title xxx of the Revised Statutes, relating to naturalization, is based upon the act of Congress of the 14th of April, 1802. That act began as follows:
That any alien being a free white person may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise.
The foregoing language was substantially copied into section 2165, although between April 14, 1802, and the revision of the statutes in 1878 there were many general and particular acts of naturalization which were not brought into title xxx, and among them section 2 of the act of February 10, 1855, which is embodied in section 1994 of the Revised Statutes. But, giving the words “and not otherwise” full force and effect, they do not necessarily conflict with other modes of naturalization which the Revised Statutes point out. The same authority which enacted section 2165 also enacted section 1994. It is a fundamental rule of construction that such meanings are to be attributed, if possible, to the different parts of a code of laws that full effect may be given to the whole. That is accomplished in this case by understanding the words “and not otherwise” as limiting the procedure requisite [Page 525] under the particular modes of naturalization pointed out in title xxx, and those modes only.
Whole classes of people, and all persons domiciled under certain conditions within designated geographical limits, have been naturalized by acts of Congress, and even by treaties with foreign powers, without any of the formalities provided for in title xxx. Mr. Chief Justice Fuller, in delivering the opinion of the Supreme Court in the late case of Boyd vs. State of Nebraska, decided February 1, 1892, says:
It is insisted that Boyd was an alien upon the ground that the disabilities of alienage had never been removed, because he had never been naturalized. Naturalization is the act of adopting a foreigner and clothing him with the privileges of a native citizen, and relator’s position is that such adoption has neither been sought nor obtained by respondent under the acts of Congress in that behalf. Congress, in the exercise of the power to establish an uniform rule of naturalization, has enacted general laws, under which individuals may be naturalized, but the instances of collective naturalization by treaty or by statute are numerous.
The opinion cites numerous examples of such cases. Boyd, who was born in Ireland, had been elected governor of the State of Nebraska, to which office he was ineligible unless an American citizen. Although he had not been naturalized in the manner pointed out in title xxx, Revised Statutes, still the Supreme Court held that he had been otherwise naturalized, and that he was entitled to hold the office to which he had been elected.
There are two steps in the naturalization of Haberacker:
- (1)
- The naturalization of his mother by her marriage to Krauss. This is provided for in section 1994, which is not found in title xxx.
- (2)
- His naturalization by virtue of the naturalization of his mother. This is provided for in section 2172, which is a part of title xxx, and so there can be no question but that it is a naturalization law.
The whole matter, therefore, turns upon the point whether or not an alien woman, by her marriage to an American citizen, becomes a naturalized citizen. That she becomes a citizen is admitted, and that she becomes a naturalized citizen can be shown to be equally clear.
The expression “shall be deemed a citizen” in section 1994, or, as it was in the second section of the original act of February 10, 1855, “shall be deemed and taken to be a citizen,” was the language of the bill as it was reported to the House of Representatives on January 13, 1854, by the Judiciary Committee. Mr. Cutting, who was instructed by the committee to report the bill, in doing so said that the section “was taken in so many words, or in nearly so many words, from the recent act of 1844, Victoria.” That statute (7 and 8 Victoria, c. 66, sec. 16) provides:
That any woman, married, or who shall he married, to a natural-born subject or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural-born subject.
Mr. Cutting also said:
The section, in my opinion, ought to be immediately passed, for there is no good reason why we should put a woman into the probationary term required by the naturalization laws, nor to the inconvenience of attending at the necessary courts or places for the purpose of declaring her intentions and renouncing her allegiance, nor, again, put the husband to the expense of the proceeding. (Cong. Globe, first session Thirty-third Congress, p. 170.)
The intention of Congress was clearly to make the effect of the marriage of an alien woman to an American citizen, as regards citizenship, the equivalent of naturalization in the courts, or, as it is more fully expressed in the English statute, that by such marriage she should be deemed and taken to be naturalized.
[Page 526]If there were any doubt regarding the construction of this statute, the decisions of the courts are explicit and, under our system of jurisprudence, conclusive. The United States circuit court say, in Leonard vs. Grant (5 Fed. Rep., 16):
The phrase “shall he deemed a citizen,” in section 1994, Revised Statutes, or, as it was in the act of 1855. “shall he deemed and taken to be a citizen,” while it may imply that the person to whom it relates has not actually become a citizen by the ordinary means or in the usual way, as by the judgment of a competent court upon a proper application and proof, yet it does not follow that such person is on that account practically any the less a citizen. The word “deemed” is the equivalent of “considered” or “judged;” and therefore whatever an act of Congress requires to be “deemed” or “taken” as true of any person or thing must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly. When, therefore, Congress declares that an alien woman shall, under certain circumstances, be “deemed” an American citizen, the effect, when the contingency occurs, is equivalent to her being naturalized directly by an act of Congress, or in the usual mode thereby prescribed.
And Mr. Justice Harlan, in United States vs. Kellar, cited above, says:
The marriage of the defendant’s mother with a naturalized citizen was made by the statute an equivalent in respect of citizenship to formal naturalization under the acts of Congress. Thenceforward she was to be regarded as having been duly naturalized under the laws of this country.
The general purport of the decisions is that an alien woman of the class of persons that can be naturalized is as effectually naturalized, to all intents and purposes, by her marriage to a citizen as if by the judgment of a competent court.
A complete answer to the whole contention of the Bavarian Government is that there are only two classes of citizens known in our law, viz, natural-born citizens and naturalized citizens. Mr. Chief Justice Fuller, in the late case of Boyd vs. State of Nebraska, cited above, defines naturalization to be “the act of adopting a foreigner and clothing him with the privileges of a native citizen.” And Attorney-General Black, in an opinion to the President, July 4, 1859, said:
What, then, is naturalization? There is no dispute about the meaning of it. The derivation of the word alone makes it plain. All lexicographers and all jurists define it in one way. In its popular, etymological, and legal sense it signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject. (9 A. G., 359.)
The publicists are to the same effect. Calvo says (Le Droit International, fourth edition, par. 581):
La naturalisation est l’acte par lequel un étranger est admis au nombre des naturels d’un État et par suite obtient les mêmes droits et les mêmes privilèges que s’il était né dans le pays.
Where our law makes a child a citizen at the moment of birth, whether that be because born within the United States (as provided in section 1992 and in the fourteenth amendment to the Constitution) or because born of American parents abroad (as provided in section 1993), such a child is a natural-born citizen. If, however, a person is born an alien, there is no way by which he can be made a citizen except by adopting him and clothing him with the privileges of a native citizen, which is naturalization.
The position of the royal Bavarian Government is not strengthened by the contention of Baron Rotenhan’s note that by both the German and American law, which, he alleges, “in this instance are precisely the same,” the marriage of a German or American woman to a foreigner can not deprive the children of her first marriage of their native citizenship. I refrain from any discussion whether the foregoing is, in fact, [Page 527] American law, as in any event it is immaterial to the present case. The very cases contemplated by the treaty are those of conflicting claims to the allegiance of the same person. If by the laws of Bavaria every Bavarian that became a naturalized citizen of the United States ceased, ipso facto, to be a Bavarian subject, and by the laws of the United States every native American that became a naturalized citizen of Bavaria ceased likewise to be an American citizen, there would have been no occasion for the treaty. It was necessitated by the very fact that it was or might be possible for the same person to be claimed as a citizen or subject of both countries. By its provision if is wholly unimportant whether or not under Bavarian law Haberacker at his naturalization in America ceased to be a Bavarian subject. The treaty provides that, having been so naturalized and having resided within the United States uninterruptedly for five years, he shall be treated by Bavaria as an American citizen.
In my first instruction to you regarding this case, September 8, 1890, I said:
It is conclusive, therefore, under the laws of this country that John Haberacker, upon the marriage of his mother to Krauss in 1886, became a naturalized American citizen.
The foregoing was repeated, in its exact language, in Mr. Coleman’s note to the imperial foreign office on September 23, 1890. At the very beginning it was admitted, as it must have been, that the determination of that question was dependent solely upon the laws of the United States. I can not refrain, therefore, from expressing regret that the deliberate and well-considered statement of this Government as respects its own law should not have been accepted by the Imperial Government of Germany. By reason of this protracted discussion Haberacker has already been held to more than one-half of the term of service to which, as it is thought must now plainly appear to its satisfaction, he was unlawfully adjudged. He is entitled to be released therefrom, and you are directed to present the foregoing views to the imperial foreign office, with a renewed request that action to that end may promptly be taken by the Royal Bavarian Government.
I am, etc.,
Acting Secretary.