§ 272. Citizenship by Naturalization of Parent.

Citizenship may be conferred upon a minor child by the naturalization of the father,1 or of the widowed mother.2 While a mere declaration of intention is not sufficient thus to confer citizenship, it will serve this purpose if the father dies before he is actually naturalized.3

It seems clear that if the minor is resident in the United States, he is naturalized by the father's act. There was, at one time, some doubt in case the minor was non-resident. In this case, the decisions of the courts left it uncertain whether the child had to reside in the United States at the time of naturalization or whether there was a sufficient compliance with the statute by his coming to the United States during minority.5 Again, prior to the Act of March 2, 1907, it seemed doubtful whether such a non-resident minor could be considered a citizen before acquiring a residence in the United States. Section 5 of the Act of March 2, 1907 6 now provides expressly that

"a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child. shall begin at the time such minor child begins to reside permanently in the United States."

This statutory provision confirmed the view of the Department and the courts, that the naturalization of an alien had no effect upon his nonresident minor child who did not enter the United States during minority. Until the minor child of a naturalized citizen begins to reside per1 Section 2172, R. S., as amended by § 5 of the Act of March 2, 1907; 10 Op. Atty. Gen. 329. The American decisions on this matter are fully discussed in H. Doc. 326, 59th Cong., 2nd sess., 33, 138-142; Van Dyne, op. cit., 108-118; Moore's Dig., § 413. 2 Brown v. Shilling, 9 Md. 74, H. Doc. 326, 59th Cong., 2nd sess., 143-144. The marriage of the widowed alien mother to an American citizen, confers citizenship upon her and thus upon the minor children of her marriage. Ibid., p. 144, Moore's Dig., § 414.

* Act of June 29, 1906, § 4, ch. 6, 34 Stat. L. 596, embodies the provisions of R. S., § 2168, repealed. In re Shearer, 148 Fed. 839. The declaration of intention of the stepfather has same effect. In re Robertson, 179 Fed. 131. The widow and children are considered citizens, if they take the oaths prescribed by law.

• Cases cited in H. Doc. 326, 59th Cong., 2nd sess., 34.

Ibid. 34, 138-142.

34 Stat. L. 1229.

manently in the United States, he is an alien and subject to exclusion from the United States if within the class of aliens who are debarred from entry under the Immigration Act, nor can he begin to reside permanently until he has been allowed to enter. It was in order to remove the doubt as to the meaning of the term "if dwelling in the United States" that the Act of 1907 substituted the term "begins to reside permanently in the United States." The Department has ruled, however, that even though the minor may have resided in the United States for a time after the naturalization of the parent and before his majority, nevertheless if he goes abroad before attaining his majority and remains there, he does not become a citizen.2

It seems beyond doubt that citizenship is not conferred upon an alien child by his adoption by an American citizen.3

§ 273. Illegitimate Children.

4

An illegitimate child born in this country is a citizen. If born abroad to an American mother and an alien father it seems that the child would not be an American citizen, for under § 1993 of the Revised Statutes citizenship is not inherited through women.5 Nor if the father is an American does § 1993 confer citizenship upon his illegitimate child, for an illegitimate child is filius nullius and presumed to have no father. Thus, it seems clear that illegitimate halfcastes born in semi-barbarous countries of American fathers and native women are not American citizens."

A more difficult question arises as to the effect of legitimation upon 1 Nishimura Ekiu v. U. S., 142 U. S. 651; Zartarian v. Billings, 204 U. S. 170; U. S. ex rel. Abdoo v. Williams, 132 Fed. 894; U. S. ex rel. De Rienzo v. Rodgers, 185 Fed. 334. 2 Mr. Blaine, Sec'y of State, to Mr. Phelps, Feb. 1, 1890, For. Rel., 1890, 301; Sec'y Blaine to Mr. Smith, Feb. 28, 1891, Moore's Dig. III, 469; Sec'y Hay to Mr. Hardy, quoted by Van Dyne, op. cit., 116.

3 Moore's Dig. III, § 415.

As a general rule, illegitimate children also take the nationality of the mother, if born in the national territory. See the rules followed by the countries of LatinAmerica in article by Arias in 11 Journ. of the Soc. of Comp. Leg. (1910), 132.

5 Acosta y Foster (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2462. It is possible, however, that the foreign country of birth might follow the general principle of international law of ascribing to an illegitimate child the citizenship of its mother. 6 Guyer v. Smith, 22 Md. 239; Peck (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2257; Hooper, W., The law of illegitimacy, London, 1911, 100 et seq.

7 The English rule appears to be the same, Moore's Dig. III, 287.

1

citizenship. On the one hand, it has been held that legitimation removes the defects of illegitimacy, and confers American citizenship upon the child of an American father and French mother who married after his birth. On the other hand, there is some authority for the view that legitimation does not confer British nationality, and this would appear to be the better opinion under the American law. Under § 1993 citizenship must be cast at birth. If the child is then not a citizen, he must be an alien, and any subsequent acquirement of citizenship must be through some form of naturalization. Legitimation, of course, is not a recognized form of naturalization, whence it would seem that the subsequent marriage of the parents cannot relate back to the moment of birth and make the child at the time of birth a legitimate child and an American citizen.

PARTNERS

§ 274. American Partners Associated with Aliens.

Owing to the conception of the severability of the interests of partners in partnership property, there seems to have been little difficulty, on the part of the Executive, in appeals for protection, and on the part of tribunals, in the adjudication of claims, in protecting the undivided interest of a partner, an American citizen, in a partnership claim in which his associates, for lack of citizenship or other reason, had no title to legal protection.

Cases have not been infrequent where the American partner in a firm in which other partners are foreigners has invoked American protection for the partnership property abroad. In such cases it has been held by the Executive that the right of protection is personal and not transferable, and that the citizen cannot, by connecting himself in business with the nationals of another country, spread over

1 Mr. Hay, Sec'y of State, to Mr. Lardy, August 23, 1901, For. Rel., 1901, 512. See also Dale v. Irwin, 78 Ill. 170, a decision not well considered, H. Doc. 326, 59th Cong., 2nd sess., 142. The civil effects of legitimation are governed by the laws of the various states of the Union.

2 Shedden v. Patrick, 1 McQueen H. L. 535; Hooper, op. cit., 225. Under German law and the law of several other countries, e. g., Austria, Switzerland, Finland, and Costa Rica, it is expressly provided that the marriage of an alien father to the national mother of an illegitimate child, the child being thereby legitimated, confers the father's nationality upon the child.

them the mantle of his own government, or enable them to invoke its protection. In a proper case, indemnity may be demanded for the injury to the American citizen, and the measure of indemnity would be the extent of the interest of the citizen in the partnership property.

§ 275. Decisions of International Tribunals of Arbitration.

International tribunals have on many occasions permitted one of several partners to recover for his undivided interest in partnership property, where it clearly appeared that the other partner or partners labored under a disability depriving him or them of standing before the commission, and this, notwithstanding the general rule that claims in favor of a partnership must be prosecuted by all the partners.1 Thus, the citizen partners in a firm consisting partly of nationals and partly of aliens have been allowed by arbitral courts to recover their pro rata share of partnership claims.2

In several cases in which proof of loyalty or neutrality operated as a condition precedent to recovery, and such proof failed on the part of one or more of several partners, the decisions have not been uniform as to whether the innocent partners could recover their proportionate share of partnership claims. In a number of cases, the court acted on the presumption that the disloyal acts of one partner are imputable to the others, so as to bar recovery on a partnership claim.3 In other cases, the innocent partner was awarded his pro rata

1 The rule has been applied by the Court of Claims to joint owners having several interests. Fain v. U. S., 4 Ct. Cl. 237, 239.

2 Plumer, Adm. (U. S.) v. Mexico, March 3, 1849, Opin. 182 (not in Moore); Homan (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3409 (partner suing alone held entitled to pro rata share only, although other partner may be equally entitled if he appears as claimant); Jennings et al. (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3135 (dictum); Ruden (U. S.) v. Peru, Dec. 4, 1868, ibid. 1654; Massardo et al. (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 706, 709; Poggioli (Italy) v. Venezuela, ibid. 847, 871; Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 906, 910; Henriquez (Netherlands) v. Venezuela, ibid. 911 (no proof of interest of Dutch members of firm); Peters (Gt. Brit. and Germany) v. Haiti, 1913. See also Hosford v. U. S., 29 Ct. Cl. 42 (suit under Indian Depredation Act of 1891). A German assignor for the benefit of creditors of a firm in which one partner was a Dane was nevertheless permitted to prosecute a partnership claim, inasmuch as he had the legal title. Christern and Co., liquidators (Germany), v. Venezuela, Feb. 13, May 7, 1903, Ralston, 597.

3 Schreiner v. U. S., 6 Ct. Cl. 360, Nott, J., dissenting, (one disloyal partner,

share of the claim, his right being considered unimpaired by the disloyalty and disability to sue of his associate.1

Attention has already been called to the rule of Anglo-American prize law which renders subject to confiscation the share of a partner in a commercial house established in a neutral country, when his own domicil is in enemy territory,2 and operates to the same effect when the house is established in enemy territory, whatever may be the personal domicil of the partners.3 But the taint of belligerent domicil of a commercial partnership, does not reach the separate property of a partner having a neutral domicil.4

5

There is a certain type of partnership, the association en nom collectif or en commandite simple, which in civil law countries is regarded as a juristic person and a legal entity, separate and distinct from the individual members composing it, and possessing the nationality of the country of its organization or domicil. Civil law countries in and two neutral alien partners, suing under Abandoned or Captured Property Act of March 12, 1863; the decisions in the Levois and Rochereau cases, infra, are squarely opposed); Hargous (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 1280-1283; Lafler and Walley (U. S.) v. Mexico, ibid. 3340, 3342 (semble); McStea v. U. S., Second Alabama Claims Court, ibid. 2380; dictum (had it been a partnership transaction) in Levois v. U. S., Act of June 23, 1874, distributing Alabama award, ibid. 2357.

1 U. S. v. Burns, 12 Wall. 246, 253 (under Act of March 3, 1863); Finn v. U. S., 4 Ct. Cl. 237, 239; Meldrim and Doyle v. U. S., 7 Ct. Cl. 595 (joint owners with several interests); Levois v. U. S., Act of June 23, 1874, Moore's Arb. 2352, 2357 (proof that claim did not arise out of partnership transaction, and claimant not responsible for partner's acts); Rochereau (France) v. U. S., Jan. 15, 1880, Boutwell's Rep. 124, Moore's Arb. 3739 (proof that claimant, non-resident alien, had no knowledge of purchase of certain Confederate bonds, bearing certain indicia of unneutral aid, by his partners in New Orleans).

2

Supra, p. 559, especially Dana's Wheaton, § 535; Duer, Marine insurance, § 45; The Antonia Johanna (1816), 1 Wheat. 159.

3 The Friendschaft, 4 Wheat. 105; The Cheshire, 3 Wall. 231; The William Bagaley, 5 Wall. 377. See also treaty of April 30, 1803 between the U. S. and France, art. 5, Malloy, I, 514, cited by Andrade, Commissioner, in Finn (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2349 (dictum). In Rodocanochi Sons and Co. v. U. S., Act of June 23, 1874, ibid. 2359, the nationality of a firm was considered that of the locus of its main house. Duer (I, 526), mentions an exception to the right of capture when the shipment from the hostile house of trade is made at the commencement of the war, and the partner is domiciled in neutral territory.

The San Jose Indiano, 2 Gall. 268; The Sally Magee, Blatch. Pr. Cas. 283; The Aigburth, ibid. 635.

5 This is in fact in accord with the old law of merchants.