Mr. Harris to Mr. Hay .

No. 68.]

Sir: I have the honor to submit the following case:

Anton Macek was born in Vienna, of Austrian parents, on August 13, 1875. Afterwards, on May 6, 1884, his father, Alois Macek, emigrated to the United States with his entire family, and has resided in Chicago ever since. Before his naturalization and while the son Anton was yet a minor, to wit, on August 16, 1894, the father sent him to Austria to be educated at the Academy of Music in Prague. It is stated that it takes six years to complete the course. Anton arrived in Prague on October 1, 1894, and has remained there uninterruptedly ever since. Afterwards, to wit, on October 22, 1894, the father, Alois Macek, as shown by the certificate produced, was naturalized in the superior court of Cook County, Ill.

Anton Macek now applies foru passport, claiming citizenship through the naturalization of his father. Is Anton Macek a citizen of the United States? The answer turns on the meaning of that clause in section 2172, Revised Statutes, which says the minor children, at the time of the naturalization of their parents, shall, if “dwelling in the United States, be considered as citizens thereof.”

There is no digest of the decisions of the courts in this legation. The Reports of the Supreme Court are lacking since eighth of Wallace; so I have no means of learning if the phrase “if dwelling in the United States” has been judicially construed.

It seems at least three meanings have been put on these words.

1. Such minors during and after minority, when dwelling in the United States, will be accorded the rights of citizenship, but if they go abroad the United States will not undertake to protect them. Mr. Marcy said this section “is only a municipal law, and can have no effect beyond the jurisdiction of this country.” (Wharton’s International Law Digest, II, sec. 184.) On the same page Mr. Fish seems to limit the words to “when dwelling in the United States.”

2. Such minors, if actually in the United States at the time of the naturalization of the parent, ipso facto become citizens, otherwise not. Mr. Blaine said this section applies “to such children as were actually residing in the United States at the time of their father’s naturalization.” (Id., p. 406.)

Mr. Frelinghuysen said our naturalization laws include the naturalized parents “and their children, minors at the time of naturalization, if within the jurisdiction of this country.” (Id., p. 407.)

3. That the legal residence of a minor (unless manumitted) is with the parent; that therefore Anton Macek was legally residing in the [Page 13] United States at the time of the naturalization of his father; that “dwelling,” as used in this section, is synonymous with “legally residing,” rather than “actual residence.” And so, although the minor son was not at the time of the naturalization of the father actually within the jurisdiction of the United States, yet he was vicariously present in the person of the father, who is the family head and representative, and by and through him, under this section, the minor son became then and there a citizen of the United States, the same as if he had been personally present at his father’s home in Chicago.

This is the view maintained by Mr. Donzelmann, consul at Prague, a lawyer of distinction, and formerly, I think, attorney-general of the State of Wyoming, who sends to the legation this application.

My mind leans to the second view rather than the first or the last. It seems to me that a minor beyond the boundaries of the United State at the time of the judgment of naturalization of the parent is not affected by it, and can not claim the benefit of it.

And this view seems to find expression in your dispatch to me, No. 2, of the 1st of April, 1899, wherein it is said:

Section 2172 only confers citizenship upon minor children of naturalized aliens when such children were dwelling in the United States; and the Department holds that the prescribed minority residence in this country must have coincided with or been subsequent to the parent’s admission to citizenship.

And in the letter of Mr. Hill, Assistant Secretary, therein inclosed, he said:

No law of the United States confers citizenship upon a minor subject of a foreign power residing within the jurisdiction thereof.

The minor son in this case was an Austrian subject as long as he resided in the United States, and also when he arrived in Prague, and I can not persuade myself that while there he himself, or anyone for him, either by statute or under any rule of international law, could transfer his allegiance to the United States.

And so I have felt it to be my duty to withhold the passport and take your instructions.

I have, etc.,

Addison C. Harris.