Mr. Hay to Mr. Harris.
Washington, January 22, 1900.
Sir: I have to acknowledge the receipt of your No. 68, of the 2d instant, in which, submitting the case of Anton Macek, an applicant for a passport, you ask the Department’s instructions respecting the true intent of section 2172, Revised Statutes, in its application to the case before you.
That section 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.
Anton Macek, according to your statement, was born in Vienna, of Austrian parents, August 13, 1875. In May, 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 [Page 14] the son, Anton, was yet a minor—August 16, 1894—the father sent him to Austria to be educated. The father, Alois Macek, was naturalized in the superior court of Cook County, Ill., October 22, 1894; that is, subsequently to the return of the son, Anton Macek, to Austro-Hungarian jurisdiction, where he has since remained.
You have felt it to be your duty to withhold a passport in the view that section 2172 merely confers citizenship upon minors actually residing in the United States at the time of their father’s naturalization, in support of which opinion you refer to the Department’s instruction to you, No. 2, of April 1, 1899, the pertinent provisions of which you quote.
At the same time you submit to the Department the view, which you state is advocated by the consul at Prague, that the words “dwelling in the United States” refer to the legal residence of a minor which, unless manumitted, is with the parent wherever the minor may happen to be, so that, although not at the time of the naturalization of the father actually within the jurisdiction of the United States, the son, Anton Macek, may be held to have been vicariously present in the person of the father through whom he then and there became a citizen of the United States, the same as though he had been personally present at his father’s home in Chicago.
Still another view is brought forward, to the effect that the protective force of section 2172 only applies to the minor children of naturalized aliens while such minor children are actually within the jurisdiction of the United States.
This narrow interpretation is no longer entertained by the Department, although as a proposition in municipal law it has on several occasions in the past been enunciated; but it has been replaced in practice by a quasi conventional interpretation, as will be later shown, by which the acquisition of a parent’s citizenship by an alien minor is assimilated to the actual naturalization of the minor himself.
You state that, in the absence of legal authorities in the legation, you have no means of learning if the phrase “if dwelling in the United States” has been judicially construed.
On page 301 of the volume of Foreign Relations for 1890 you will find a carefully formulated instruction sent by Mr. Blaine to Minister Phelps at Berlin, No. 57, February 1, 1890, in which considerable attention is given to the intent and application of section 2172, Revised Statutes. The purport of that opinion (which is understood to have been prepared by Mr. John B. Moore, then Assistant Secretary, and now a known and recognized authority on matters of international law) is that the effect of the American law is to make actual residence in the United States, and not residence at the time of naturalization, the test to the claim of citizenship, inasmuch as the provision relates to children born of parents who are not at the time citizens of the United States, and upon whom the country of the parent, under the same rule of law as that announced by this Government with respect to the children born abroad of citizen parents, might have claims of allegiance. In respect to such persons the words “if dwelling in the United States” recognize a possible conflict of allegiance. In the absence of any such conflict of allegiance being adversely raised by the government within whose jurisdiction the minor may be temporarily dwelling, there could be little doubt that the law of the country which naturalized the father would obtain; and in fact it does obtain, by common consent, in the relations of the United States with Germany. In practice, [Page 15] therefore, it may be said that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child, if he be at the time of the father’s naturalization within the jurisdiction of the United States, or if he come within that jurisdiction subsequent to the father’s naturalization and during his own minority.
The principle may be broadly stated that no country can naturalize an inhabitant of another country while that person is dwelling within the jurisdiction of the other country; that naturalization is a municipal act valid within the jurisdiction of the naturalizing power, and that, once performed by due operation of law, it is entitled to respect. It is not necessary that naturalization should be a strictly judicial act, as in the case of the original naturalization of an alien father. The minor son is just as much naturalized by the fact of being within the jurisdiction of the United States at the time of the father’s naturalization, or coming within that jurisdiction subsequently during minority, as if he himself had been admitted to citizenship by a decree of the court. Somewhat of the same principle is discernible in the theory that marriage, by investing an alien woman with the citizenship of her husband, operates as naturalization when that effect is recognized by statute. The United States statute in this regard, section 1994, Revised Statutes, which provides that any woman marrying a citizen of the United States, who might herself be lawfully naturalized, shall be deemed a citizen, has been held by the Federal courts to be in fact an act of naturalization. In the case of Leonard v. Grant (5 Fed. Rep., 11) it was held that the effect of section 1994, when the contingency occurs, is equivalent to the alien woman being naturalized directly by an act of Congress or in the usual mode thereby prescribed. This, however, is an extreme analogy, inasmuch as marriage may be validly performed outside the country of the husband’s nationality, or even in the country of the wife’s allegiance, with resultant change of the wife’s nationality not merely as the effect of the law of the husband’s country, but as a generally admitted doctrine of private international law. The act of naturalization, however, is properly performable in the jurisdiction of the naturalizing State.
The view that citizenship acquired by a minor through the parent’s naturalization is in effect a process of naturalization according to law, obtains in applying the German-American naturalization treaties, where evidence that a minor child has acquired citizenship through the father, according to the laws of the United States, coupled with evidence that the minor had resided at least five years in the United States, are taken to fulfill the conditions of the treaty—that is, in effect, to show that the minor child has been naturalized according to law.
These points are, however, adverted to for your information merely and not as controlling your action in respect to Anton Macek’s application for a passport. Whatever construction be given to section 2172 of the Revised Statutes, it is quite clear that it can not apply to this present case, because the words “if dwelling in the United States” do not fit the circumstances. The applicant was not dwelling in the United States at the time of his father’s naturalization, he has not at any time since dwelt in the United States, and of course is not now dwelling here.
Your action in withholding the passport from Anton Macek is approved.
I am, sir, etc.,