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so holding. McLane v. Elder, Brev. MSS. Rep., 2 Mill, 184; Dealy v. Lance, 2 Speer, 487. But the majority of this court having, in Meetze v. R. Co., determined that the circuit judge had the power to review and reverse the findings of fact of the referee, and he having exercised that power in this case, the judgment of this court, therefore, is that the judgment of the Circuit Court be affirmed." See Weld v. Walker, 130 Mass. 422; S. C., 39 Am. Rep. 465, and note, 467.

The other section to which I desire to call attention is the following:

"173. It is provided by law that persons born out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States. Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens; but while the United States may by law flx or declare the conditions constituting citizens of the coun

IMPORTANT INSTRUCTIONS IN RELATION TO try within its own territorial jurisdiction, and may conCITIZENSHIP, DOMICILE AND

MARRIAGE.

The following correspondence will explain the reason of the changes recently made by the Secretary of State in the diplomatic instructions in reference to the law of citizenship, domicile and marriage:

LAW BUREAU, May 4, 1885.

To the Honorable the Secretary of State: SIR: I beg to call your attention to two sections in our Consular Regulations and in our Diplomatic Instructions, which call for grave consideration. In our Consular Regulations we have the following:

"158. Passports are to be issued only to citizens of the United States, and are to be numbered, commencing with number 1, and so continuing consecutively

To

until the end of the incumbent's term of office. issue a passport to a person not a citizen is a penal offense, punishable ou conviction by imprisonment not exceeding one year, or by a fine not exceeding $500, or both. Persons who have merely declared their intention to become citizens are not citizens of the United States within the meaning of the law."

The same position is taken in our Diplomatic Instructions.

The lines italicised in the above section do not, I think, state the law with sufficient accuracy. It may be conceded that a mere declaration of intention does not create citizenship of the United States.*

On the other hand, such a declaration, coupled with domicil (i. e., residence accepted as a final abode), may give the declarant, as was held by Mr. Marcy in the Koszta case, a claim on our government for protection, when the declarant, on the high seas, or on the territory of a neutral power, is seized by the sovereign of his original allegiance in such a way as to prevent him from perfecting his allegiance to his sovereign of election. And a person merely domiciled in the United States, even without declaration of intention, is, as will be shown by the Exhibits hereto attached, entitled to protection from our government in all matters concerning his civil as distinguished from his political rights.

*NOTE. That the question of the effectiveness of a declaration is still open to doubt may be seen by the following section from the Revised Statutes:

"SEC. 2168. When any alien who has complied with the first condition specified in section twenty-one hundred and sixty-five, dies before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed (sic) by law."

fer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it ought not, by undertaking to confer the rights of citizenship upon the subject of a foreign nation who had not come within our territory, to interfere with the just rights of such nation to the government and control of its own subjects. If by the laws of the country of their birth children of American citizens born in such a country are subjects of its government, the legislation of the United States will not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory. If therefore such a person, who remained a resident in the country of his or her birth, applies for a passport as a citizen of the United States, such passport will be issued in the qualified form, shown in form No. 11."

The correct rule I apprehend to be that the children born abroad of parents domiciled in the United States partake of their father's domicil, and children born abroad of citizens of the United States partake of their father's citizenship. The possession of these rights continues until the infant arrives at the age of twenty-one, at which age he is entitled to make election as to what nationality and domicile he will accept, which election must be regarded as final. It is true that such children, like all other citizens of the United States

residing in a foreign land, may be regarded as bound to render the duty of local obedience. But with the above limitation as to election they are no more subject to the domiciliary municipal laws of such foreign land, or clothed with its nationality, than are any other citizens of the United States temporarily residing abroad. As will be seen by authorities in an

exhibit attached hereto, these views are sustained not

only by rulings of our own and English courts, but by the opinions of leading jurists who are experts in this branch of law.

It is true that in a letter of Mr. Hoar, when attorney-general, dated June 12, 1869, we have the following statement:

"If therefore by the laws of the country of their birth children of American citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation, or by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist." 13 Op. Atty.-Genl., 89. See to same effect letter of Mr. Fish, Aug. 25, 1873. (For. Rel. U. S., 1873-4, vol. 2, p. 1192.

So far as this statement bears on the question of

This section has been applied, as stated by Mr. Ev-passport, in reference to which it was made, I do not erett,in Germany, in granting passports for the protection of widows and children of persons who have declared their intention to become citizens of the United States, but whose naturalization has not been perfected.

propose to discuss it, though even in this limited relation I doubt its accuracy. But I do unreservedly maintain that by the law of nations no legislation of a foreign State can subject either a person domiciled in one of the United States, temporarily residing in such

foreign country, or a child born to him during such temporary residence, to the municipal laws of such foreign country, so as to divest him of his home status, and to impose on him the status of the country in which he is temporarily resident.

The consequences of the latter doctrine are so disastrous that it is hard to believe that it was deliberately intended to have been advanced. Were a person domiciled in one of our States (whether an adult or a minor), subjected to the municipal laws of a foreign country, in which he is temporarily resident, and clothed with its status, he might be placed permauently under the control of a guardian appointed by the authorities of such country; his legitimacy would be subject to its laws; his marriage would be invalid if made such by its laws; by its laws would the succession to his property be determined; by its laws, as one of its subjects, would his property be distributed in case of his death.

the end of the incumbent's term of office. For a diplomatic or consular officer to issue a passport to a persou not a citizen of the United States is a penal offense, punishable on conviction by imprisonment not exceeding one year, or by a fine not exceeding $500, or both. Persons who have merely declared their intention to become citizens are not in the full sense citizens of the United States within the meaning of the law. Provided that nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicile and to claim protection from this government in the maintenance of such status.

"131. It is provided by law that persons born out of the limits and jurisdiction of the United States, whose fathers were or shall be, at the time of their birth, citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States. That in such cases the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law."

This leaves the question of status in such cases to the courts, unprejudiced by any utterances from this department. It may be that a distinction now taken in England between civil and political domicil may be hereafter internationally accepted, and that it may consequently be held that while domicile without naturalization imposes a civil status, determining municipal rights, it does not impose political status conferring

For this department, in its consular regulations and diplomatic instructions, to declare otherwise, would not only contravene the rulings of our courts and the opinions of the great body of modern international jurists, but would interpose a serious difficulty in the way of the obtaining, by persons domiciled in one of the United States, the rights abroad to which they are entitled by the law of nations and by the rulings of domestic courts. We will suppose, for instance, that a person domiciled in the United States, but temporarily resident abroad, is subjected to personal taxation, or to other laws determining status in the place of his temporary residence; or that an effort is made to subject his legitimacy, or the legality of his marriage, to the laws of such temporary residence; or to limit his busi-political immunities, e. g., relief from military or poness capacity by such laws, or, on his death, to declare that his estate by such laws is to be distributed. This is contested; and to support this adverse contention, we will suppose that it is said by the authorities of such place of temporary residence; "undoubtedly by the law of nations personal status is determined by the place of domicile, but by your consular regulations and diplomatic instructions you preclude yourselves from claiming for persons domiciled in your States this right." But that such a concession should not be made by this department, I maintain for the following

reasons:

1. Even supposing the question were one of doubt, it ought not to be decided in this summary way against persons domiciled under our flag.

2. The case is one belonging to the States, as domicil is incident to residence in a State (or territory, as the case may be), and not to residence in the United States as a whole. A person, for instance, may be domiciled in the State of New York, and thus become enveloped in the municipal law of New York; but except as domiciled in New York, he cannot be domiciled in the United States. Domicil by the law of nations, it must be remembered, is residence within a particular State, with the intention to make it a final abode. It may or may not be coupled with domestic political privileges. Domicil however, and not the possession of political privileges, interuationally determines status.

But while intention to permanently remain is an essential incident of domicile, this is not inconsistent with tomporary absence. It is in relation to persons temporarily absent, and to their children born during such temporary absence, that the rules I have cited bear harshly in denying to them rights to which they are entitled by the law of nations.

The suggestion I now make is to substitute for the sections in question the following:

118. Passports are to be issued only to citizens of the United States, and are to be numbered, commencing with No. 1, and so continuing consecutively until

lice duties. But be this as it may, no statement
should be permitted to remain in the records of this
department sanctioning the view that a person domi-
ciled in the United States is by our action precluded
from claiming the municipal rights he is entitled to by
the rules of private international law.
All of which is respectfully submitted.

FRANCIS WHARTON.

DEPARTMENT OF JUSTICE,
WASHINGTON, May 22, 1885.

Hon. Thomas F. Bayard, Secretary of State:

DEAR SIR: Your letter of the 16th instant, inclosing a report from the Law Bureau of your department in reference to "Regulations for the use of the Consular Service of the United States," has been received, and the report has been very carefully examined by me with a great deal of interest.

You do not say in your letter that you desire any expression of opinion from me in reference to the matter discussed, or that you wish I should review it in any way, but owing to the importance of the subject, and its very interesting character, I deem it proper to express some views to you in reference to it, hoping that they may be of some service in your future investigations.

I very heartily concur in the changes suggested by Dr. Wharton in the regulations referred to, and think that they of themselves are very important; more especially so in view of the fact that the opinion of one of my predecessors, referred to by Dr. W. in his report, may possible mislead upon this subject; and the further fact that in the beginning now of a new administration it is highly essential that the true doctrine be laid down, recognized and enforced.

In reference to the first point of change, distinctly set forth in page 4 of Dr. Wharton's report, and in further support of it you will find that Vattel, in his Law of Nations, book 1, ch. 19, p. 101, fully sustains it; and further, in book 2, ch. 8, p. 173. Our own Supreme

Court has of late years announced the same doctrine, with a clearness and force that cannot be misunderstood. Carlisle v. United States, 16 Wall. 147; and still more recently in the case of Radich v. Hutchins, 95 U. S. 210.

The other change suggested by Dr. Wharton in these regulations as stated in his report, p. 7, touching "the domicile of children of citizens of the United States born abroad," is based upon principles that are as universally recognized and established as the first change already discussed; and I call your attention to Savigny on Private International Law, pp. 56-7. Our Supreme Court at a very early date, before the case in 3 Peters referred to by Dr. Wharton recognized this principle, and quoted all the leading authorities then known to the profession in the case of McIlvaine v. Coxe's Lessee, 4 Cranch, 209 (1808). Again, in the year 1817, in the case of The Dos Hermanos, 2 Wheat. 76; and in 1852, in Ennis v. Smith, 14 How. 400; in Jones v. McMaster, 20 id. 8; in White v. Burnley, id. 235; in Mitchell v. United States, 21 Wall. 350; and in Desmare v. United States, 93 U. S. 605; but more recently, and yet with more emphasis if possible, in the case of Lamar v. Micou, 112 id. 452.

I do not think it necessary to go further in adducing authorities upon this proposition. Indeed it is possible that none were needed in addition to those in the report of Dr. Wharton, but for the reasons already given I deemed it advisable to furnish these. If I had been called upon to give an opinion upon these propositions, directly, I should have answered them as the changes in these regulations indicate and propose. According to the request contained in your letter, I return the report to you.

Very truly and sincerely yours,

A. H. GARLAND, Attorney-General.

EXHIBIT A.

Koszta Case.

Mr. Marcy, in the Koszta case (Cong. Doc. 33d Cong., 1 sess., H. R., Ex. Doc. 91), said:

"The right to protect persons having a domicile, though not native born, or naturalized citizens, rests on the firm foundation of justice; and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard."

This is adopted without qualification by Mr. Lawrence (Lawrence's Wheaton [2d Am. ed.], 176) and may be accepted as true, at least as far as concerns the civil as distinguished from the political rights of domicil. Koszta's case may be explained as follows:

Koszta, by establishing his domicil in the United States, and declaring his intention to become a citizen, severed his relation with his native country, Austria, for all purposes of private international law; but his political allegiance to Austria was not thereby completely aunulled, and could not be, under public international law, until he had renounced his Austrian allegiance and become fully clothed with American political citizenship, by the act of naturalization. No renunciation of alien subjection is required by our laws at the time of declaring intention.

But while domiciled in the United States, and after declaration of intention, Koszta had acquired an incomplete nascent status of citizenship, and had certainly a right to be protected by the United States in the completion of his purpose to become a full citizen, as against any violent act on the part of Austria.

Had he then voluntarily placed himself again within Austrian jurisdiction, his act in doing so might have been held to extinguish the nascent right to our protection as against Austrian claim to his civil allegiance. But on the high seas, or in the dominions of a third power, the nascent right to protect him in the comple

tion of his United States citizenship, would remain unimpaired.

Under these circumstances, Koszta, while retaining his American domicil, went on a temporary visit to Smyrna, Turkey. This temporary absence from the United States could neither affect his domicil nor interrupt his continuous five years' residence in the United States as a condition precedent to naturalization. His right to perfect his citizenship by such naturalization was not impaired by that absence.

While in Smyrna, in the dominions of a third sovereign power, Koszta was kidnapped by the commander of an Austrian war ship.

The right to protect him by all the power of the United States was as complete in that case as though Koszta had been kidnapped on the high seas, or in the United States. This right was successfully asserted, and the question thus decided once for all.

A subsidiary question arose in Koszta's case, through the violation of Turkish sovereignty by the Austrian commander; but this need not be discussed in examining the question of American right to protect him. The status of Koszta is stated by President Woolsey as follows (Int. Law, 981):

"2. Was he an Austrian subject? Austrian nationality ceases, according to what is said in section 66, on the authority of Mr. Foelix, when a subject emigrates with the consent of the government. He had more than the consent of his government to his abandonment of his country; he was forced into exile. But to this it might be replied that he had agreed in writing never to return to Turkey, and that the Austrian claim on him would revive on his failing to fulfill this condition. It is indeed questioned by Mr. Marcy whether he engaged never to return; and it might perhaps be said that if such an engagement existed, it related only to return for political purposes.

"But to this Austria might reply, that she could not know what his purposes were, and that the promise must be absolute, in order to prevent his doing politi. ical mischief in the neighborhood of Hungary. This however is a point on which our diplomatist preserves silence.

"3. What were his relations to the United States? Not those of a citizen, but of a domiciled stranger. His oath declaring his purpose to become a citizen, and his long stay here, put this out of the question, and his temporary absence could not shake this character off. Moreover he had a passport, certifying to his American nationality. He would therefore be entitled by the laws of nations to the protection of the Turkish authorities against his Austrian captors. Had he even been a fugitive prisoner of war, he could not lawfully have been seized on shore, unless treaty had so provided. He would equally be entitled to all that protection which officials of the United States were authorized to extend to him within Turkish territory."

This is dissented from so far as concerns the position that the passport gave additional strength to Koszta's claim to citizenship, in Hall's Int. Law, p. 200.

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pendent person is the same as, and changes (if at all) with the domicil of the person on whom he is, as regards his domicil, legally dependent." Pp. 4, 5.

"A domicil cannot be acquired by a dependent person through his own act. P. 106."

Mr. Westlake, a leading English author on Private International Law, in the 2d ed. of his work on Private International law, says:

"Section 233. The original domicil of a child born in wedlock to a living father is the domicil of its father at the time of its birth.

"Section 237. The domicil of a legitimate or legitimated unmarried minor follows that of his or her father."

Mr. Hall (International Law, Oxford, 1880, p. 188) after a recapitulation of the law of different countries (in which he gives an erroneous statement of the law in the United States), says:

"From the foregoing sketch of the various laws of nationality, it may be concluded that the more important States recognize, with a very near approach to unanimity, that the child of a foreigner ought to be allowed to be himself a foreigner, unless he manifests a wish to assume or retain the nationality of the State in which he has been born."

"La définition la plus exacte,à notre avis,a été donnée par le juge des Etats-unis Rush, lorsqu'il dit que la domicile est une résidence dans un lieu particulier accompagnée de preuves positives ou presumées de l'intention de s'y fixer pendant un temps illimité.

"Le domicile de l'enfant est celui de ses parents ou de ceux qui les remplacent suivant la loi." Manuel de Droit International Public et Privé. Par M. Charles Calvo. Paris, 1882, pp. 211, 212.

The late Professor Blunschli, in an article in the "Revue de droit int." for 1870, p. 107, states the rule as follows:

"Legitimate children acquire by their birth the nationality of their father; nor does it matter whether they were born at home or abroad."

Sir R. Phillimore (International Law, IV, 589, p. 73), thus speaks:

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possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may be dependent on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, being in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicil, and to secure this result, the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to elect and assume another domicil, the continuance of him to which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished, and remains in obeyance during the continuance of the domicil of choice; but as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicil, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicil of choice.

*

"XC. (a) The domicil of the legitimate unemancipated minor who is not sui juris, and whose will therefore cannot concur with the fact of his residence, is the domicil of the father, or of the mother during widowhood, or-though it will be seen this is a dispu-him in Peru. ted point of the legally appointed guardian.

"XCI. It is an undisputed position of all jurists, that of his own accord, proprio morte (to borrow the expression of Bynkershock), the minor cannot change his domicil. In our own country this maxim was enunciated by Lord Alvanley, master of the rolls, in the case of Somerville v. Somerville, and in America, in the

case of Guier v. O'Daniel.

"It should seem, from all analogy, to follow that such change may be effected by the parents or guardians of the minor."

To the same effect is Morse on Citizenship, 13, 141. In Udny v. Udny, L. R., 1 Sc. App. 444, it was held that the status of a child as to legitimacy is determined by the laws of his father's domicil at the time of the child's birth. The distinction between civil status and political status is thus put in this case by Lord Westbury:

"The law of England, aud of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country; and as such is

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In Ludlam v. Ludlam, 26 N. Y. 356 (1883), it appeared that Richard L. Ludlam, a citizen of the United States domiciled in New York, went at the age of eighteen to Peru for business purposes, but took no steps toward naturalization in Peru, or toward a permanent change of domicil. He remained in Peru fourteen years and when in Peru married a Peruvian woman, who also This child was held by the Court of was a native of that country. A child was born to Appeals to be a citizen of the United States, domiciled in New York. From the opinion of the court which was delivered by Selden, J., the following passages are extracted.

"It seems to me to result of necessity from these principles, that the children of English parents, though born abroad, are nevertheless regarded by the common law as natural born citizens of England. The decision upon the plea in Calvin's case, which was merely repeating what was decided in Cobbledike's case, as early as the reign of Edw. I, see Calvin's case, p. 9 b., necessarily implies that a child may owe allegiance to the king (i. e., not merely local or temporary, but natural and permanent allegiance), although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases, because if this was an exception the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin s cases; but the exception must have been pleaded."

"Now, upon what ground can allegiances in such cases be claimed? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obliga

tion than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If then the child of English parents, though born abroad, is subditus natus a born subject of the king, he must also be a born citizen of the kingdom. Allegiance and citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long therefore as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.

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"I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be found in natural law, and to be substantially the same in most, if not all, civilized countries. Vattel says: "Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights." B. 1, ch. 19, § 212. In a subsequent action the same author says: "It is asked whether the chil. dren born of citizens in a foreign country are citizens, the laws have decided this question in several countries, and it is necessary to follow their regulatious. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itselt furnish any reason for taking from a child what nature has given him. I say of itself, for the civil law, or politics, may order otherwise from particular views. Id., § 215.

"It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf. Ch. 583, 675, that the law of France, Spain, and Portugal is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed from the municipal law 'from particular views.'

*

*

"Chancellor Kent has examined the subject with more care, and although he expresses no decided opinion upon the question, which I have considered, yet it may be fairly inferred from what he says, that in his opinion children born abroad, under such circumstances as attended the birth of Maximo Ludlam, might establish their citizenship, by reference to the principles of the common law, notwithstanding he speaks of those principles as 'dormant and doubtful.' 2 Com. 50-53.

"The correctness of this intimation of Chancellor Kent is controverted in an able article on the subject, published in 1854, in 2 Am. Law Reg., p. 193, attributed to Mr. Horace Binney (Brightley's Dig., p. 132), which doubtless induced the passage of the act of Congress of 1855, that act following literally its recommendations. By inducing the removal by Congress, for the future, of all doubt upon a question of such importance, that article has proved useful; but if it should have the effect, in regard to antecedent cases, to establish the position with which it commences, that all the children of American families, born in a foreign country, are aliens,' a vast balance of evil would be chargeable to its account. All the cases which the author cites to sustain his position have been above referred to; and after a careful examination of them, I am satisfied they do not sustain his conclusion.

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"An officer in command of one of our vessels of war was fully justified by our government in obtaining, by an exhibition of force, the surrender from an Austrian frigate, of Martin Koszta, a natural born citizen of Austria, claiming the rights of naturalization here who had been forcibly and wrongfully seized in Smyrna, and taken on board the frigate. Can it be doubted that the same protection would have been extended to a minor child of Koszta, if he had been seized with his father, though born in Austria?

"The rule which we are asked to sanction would compel the government in all such cases to distinguish between father and child, extending its protection to the father, and denying it to the child."

State v. Adams, 45 Iowa, 99 (1876), was a suit brought to determine whether Adams, the defendant, was a citizen of the United States and of the State of Iowa, the object being to test his right to hold the office of the mayor of the town of Avoca. The following passages are extracted from the opinion of Seevers, C. J.:

"The right of the defendant to hold the office in question depends upon the fact, whether or not he was a citizen of the United States and State of Iowa. The Circuit Court made the following finding of facts:

"1st. That the defendant's paternal grandfather was born in Connecticut in the year 1764, and from there emigrated to Canada, in the year 1790, with the intention of making Canada his permanent domicil, and that he remained in Canada until his death in the year 1838.

"2d. That the defendant's father was born in Canada in the year 1795, and resided there until the year 1834.

"3d. That the defendant was born in Canada in the year 1834, and during the same year came with his father to the United States, where they have ever since resided.

"4th. The defendant has resided in the State of Iowa ever since its admission into the Union, and in the town of Avoca, for the two years last past.

"5th. That the defendant's father, while a resident in Canada, served in the Canada militia in the war of 1812, but that such services were involuntary on his part.

"6th. That in the year 1875, the defendant's father received of the Canadian government a bounty of $20 for such services.

7th. That neither the defendant nor his father has ever been naturalized under the laws of the United States for the naturalization of aliens.

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"We are of the opinion that defendant's grandfather, at the time he removed to Canada, in 1790, was and had been for several years a citizen of this country, and that he remained such notwithstanding his removal to and subsequent death in Canada. In this conclusion we are sustained, we think, by the following authorities: Calais v. Marshfield, 30 Me. 411; Peck v. Young, 26 Wend. 612; Inglis v. Trustees Sailor's Snug Harbor, 3 Pet. 99. "The father of plaintiff was born in Canada, in 1795, at which time his father, as we have seen, was a citizen of this country. Ordinarily the citizenship of the child at its birth is determined by that of the father. If there be a doubt as to this principle, it must be regarded as removed by the act of Congress passed in 1802, which provides, ***'children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof.' Rev. Stat. U. S., § 2172. This language clearly and unmistakably includes the plaintiff's father, and he thereby (if not otherwise) became entitled to all the frights of citizenship.

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