American citizen, and if he subsequently went abroad, would be entitled to American protection.1 The status, during minority, of the foreign-born child of a native American citizen who, after the birth of the child, expatriates himself, does not appear to have come before the American courts.

To confer citizenship upon a child born abroad, the father must have resided in the United States. This limitation upon the right of transmitting citizenship indefinitely was intended to prevent the residence abroad of successive generations of persons claiming the privileges of American citizenship while evading its duties.2 It seems not to have been judicially determined whether the residence of the father in the United States must necessarily have preceded the birth of the child, but by the fact that the statute provides that citizenship shall not "descend," it is believed that the residence prescribed must have preceded the birth of the child, and such has been the construction of the Department.3

4

As will be observed more fully hereafter, an exception to the application of this provision of § 1993 has until recently been made in the case of children born in distinctively American communities in Turkey, in which citizenship was deemed heritable from generation to generation, regardless of the father's non-residence in the United States. In 1914, however, the Department reversed its previous ruling as laid down since 1887, and held § 1993 to be universally applicable, without exception.5

§ 271. Election of Citizenship under § 6 of Act of 1907.

According to § 6 of the Act of March 2, 1907, foreign-born children who are declared citizens by § 1993 of the Revised Statutes are "required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and . . . to take the oath of allegiance to the 1 Supra, § 258.

2 Van Dyne, op. cit., 34.

3 See, however, State v. Adams, 45 Iowa, 99, in which this point does not appear to have been considered.

5

Special Consular Instruction, No. 340, July 27, 1914, Citizenship of children born of American fathers who have never resided in the United States.

1

United States upon attaining their majority." As has been explained,2 the Department of State has construed the word "upon" to signify "within a reasonable time after," so that the declaration of intention to become residents and remain citizens of the United States" may be made at any time after the minors concerned have reached the age of eighteen and before they take the oath of allegiance; and the oath of allegiance may be taken within a reasonable time after reaching majority. A minor over eighteen, therefore, would practically be entitled to a passport whenever he made his declaration; and even for a reasonable time after majority, if he is then prepared also to take the oath of allegiance.

Notwithstanding this statutory provision, which relates merely to the right of protection, municipal courts may well hold such persons to be citizens of the United States. When these persons, after reaching the age of majority, continue to reside abroad and have no definite intention to reside in the United States, registration and passports are uniformly denied them. Should the minor have returned to the United States to reside, and subsequently, after majority, goes abroad, even to the country of his birth, he will be considered as having perfected his status as an American citizen, and as having full title to American protection. In one case where a circus performer, born abroad of an American citizen, applied for a passport at the age of twenty-nine, but stated that he intended to come to the United States, the Department authorized the issuance of the passport on the ground that he had the animus revertendi, had not apparently established himself in any other country, and that his pursuits required a nomadic life.6

1 Circular, Children of citizens born abroad, April 19, 1907, For. Rel., 1907, I, 9. 2 Supra, p. 587.

3 Circular, March 14, 1911. This interpretation practically nullifies the statutory requirement of recording intention prior to reaching full age, but does not entirely eliminate the inconsistency with numerous rulings of the Department to the effect that a minor is incompetent to make a final election of nationality.

In Albany v. Derby, 30 Vermont, 718, the court declared that if the foreignborn child did not return to America until after he was of age, he was an alien.

'Crowninshield's case, Mr. Gresham, Sec'y of State, to Capt. Crowninshield,

Feb. 23, 1895, For. Rel., 1895, I, 426. See also Moore's Dig. III, 284–285.
Case of Clemens Beling, For. Rel., 1907, 975.

§ 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, 19076 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 fesumption 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 per

1 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.

If born

An illegitimate child born in this country is a citizen.1 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."

6

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.

4 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.

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.

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.1 On the other hand, there is some authority for the view that legitimation does not confer British nationality,2 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.