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.

Mr. Hay to Mr. Harris.

No. 65.]

DEPARTMENT OF STATE,
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

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 AustroHungarian 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,

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.,

JOHN HAY.

EXPULSION OF GUSTAV WOLF LOUIS FISCHER.

Mr. Harris to Mr. Hay.

No. 80.]

UNITED STATES LEGATION,
Vienna, March 21, 1900.

SIR: I have the honor to submit my action in the matter of Gustav Wolf Louis Fischer, a naturalized citizen of the United States, who is about being banished from Austria. Mr. Fischer is in the employ of Thomas Cook & Son, and is well known to the American and English people residing in and visiting Vienna.

The case came on suddenly. It presents the same question as stated in my dispatch No. 70 of January 10 last, but in a more precise form. The order of expulsion (banishment) in this case is, as I am informed by Mr. Fischer's counsel, in the same words as that set out in my dispatch No. 70, expelling Charles Steidl.

The question exactly stated is: Whether Austria-Hungary has the right to banish naturalized citizens of the United States who were guilty of no crime at the time of immigration therefrom, and have violated no law since their return?

Article 2 of the treaty provides (1) for punishment of crimes committed before immigration, and (2) for emigrating after enrollment as a recruit or while in military service. Mr. Fischer was not enrolled, but on examination was rejected as not then fit for military service, and thereafter emigrated.

The authorities here admit that Mr. Fischer is protected by the treaty from both military duty and punishment, and their insistence is expressed as follows: "And as we can not punish him we will banish him as an example to our young men. These are the words of the governor. It is said Mr. Fischer was required to get permission to emigrate, and reference is made to section 64 of the military law of April 11, 1889. My answer is: The last clause of article 2 of the treaty of September 20, 1870, declares (as applied to this case) that if Mr. Fischer violated this or any other military law "by or after his emigration," that after naturalization he is not punishable on return. Inclosed please find (1) a copy of my dispatch to the foreign office; (2) a translation of section 64 of the military code.

I have the honor, etc.,

[Inclosure 1.]

ADDISON C. HARRIS.

F. O., No. 59.]

Mr. Harris to Count Goluchowski.

UNITED STATES LEGATION,
Vienna, March 20, 1900.

YOUR EXCELLENCY: I have the honor to present to your excellency the case of a citizen of the United States of America resident in Vienna, who is threatened with banishment from Austria. The facts, as I learn them, are as follows:

Gustav Wolf Louis Fischer was born in Saxony on July 14, 1868. On the death of his father the mother removed to Vienna, where he was naturalized and made a citizen of Austria on November 17, 1885. In March, 1888, in obedience to a notice, he appeared before the proper officers and was examined and pronounced unfit for military service and not accepted as a recruit. Thereupon he emigrated to the United States under the provisions of the treaty of September 20, 1870. He resided in the United States continuously more than five years, and, under and in accord

ance with the said treaty and the laws of the United States, became a citizen thereof by the judgment of a proper court in the city of Chicago and State of Illinois on December 5, 1893. Afterwards, on the 2d day of March, 1895, the Secretary of State of the United States of America issued to him a passport, which he still holds, as evidence of his American citizenship. No claim is made, to my knowledge, that Mr. Fischer is not a citizen of the United States or his naturalization illegal or his passport improperly granted.

If any claim of either kind is made to this legation, permit me to assure your excellency that it will be thoroughly investigated by my Government, and if found to be true, proper steps will be taken to annul the same.

I learn that the authorities having his case in charge do not question Mr. Fischer's American citizenship, but, on the other hand, make that the ground on which is based the order of banishment.

It seems that some weeks ago he was called before the "Magistratisches Bezirksamt" of the ninth district in Vienna, and an order made to the effect that he be banished. From this Mr. Fischer took an appeal to the governor of Lower Austria, in whose office the case is now pending.

In a conversation had on yesterday with His Excellency Count Kielmansegg, governor, it was suggested that it might be better to present the case to your excellency now rather than later. And it is in accordance with such suggestions that I have the honor to bring the case immediately to your attention.

I submit to your excellency that Mr. Fischer is protected from the threatened punishment by the said convention concerning naturalization.

The first clause of article 1 stipulates that "citizens of the Austro-Hungarian Monarchy who have resided in the United States of America uninterruptedly at least five years, and during such residence have become naturalized citizens of the United States, shall be held by the Government of Austria and Hungary to be American citizens and shall be treated as such."

This clause is unlimited and embraces all citizens. The second article of said treaty reserves unto each country, and so unto Austro-Hungary the right, in this case to punish Mr. Fischer on his return for any action punishable by the laws of this Monarchy, "committed before his emigration." I am informed that no claim is made of the right to punish Mr. Fischer under said clause. The second clause of said article reserves the right of the Austro-Hungarian Monarchy to punish such emigrant after naturalization and return in case “(1) if he has emigrated after having been drafted at the time of conscription and thus having become enrolled as a recruit for service in the standing army; (2) if he has emigrated whilst he stood in service under the flag or had a leave of absence only for a limited time; (3) if, having a leave of absence for an unlimited time, or belonging to the reserve or to the militia, he has emigrated after having received a call into service, or after a public proclamation requiring his appearance, or after war has broken out."

It is not claimed, as I am informed, that Mr. Fischer is subject to punishment under the said clause set out. He was never accepted in the army as a recruit or soldier. But the insistence against Mr. Fischer is that because he is by the treaty free from punishment therefore he shall be banished.

Banishment is punishment. Vattel declares that banishment is " a mark of infamy." Another says it is "a disgraceful punishment."

I submit to your excellency that it is a solecism to argue that because Mr. Fischer is free from trial and punishment under the laws of Austria-Hungary therefore he should be banished. The treaty is the law of this case, and binds both nations and protects the citizens of each while in the lands of the other. He was not subject to punishment at the time of emigration. He has violated no law of this Monarchy since he became a citizen of the United States.

It is said that Mr. Fischer violated section 64 of the military law of April 11, 1889. It is urged, as I am informed, that Mr. Fischer violated said section because he emigrated without the permission of the minister of home defense. I do not pause to inquire whether the contention is well taken. The words of the treaty, as applied to Mr. Fischer, are if he, "by or after his emigration has transgressed the legal provisions on military duty" (except the three instances already provided), "on his return he can not be held to military service, nor remain liable to trial and punishment for the nonfulfillment of his military duty.'

In this case all right of punishment, if any, is remitted by the terms of the treaty. Mr. Fischer now stands under this treaty an innocent man; as innocent as if he were a native-born citizen of the United States. I have the honor to respectfully request therefore that your excellency will cause the case to be examined. And if it shall be found that I have misstated or omitted any material fact I beg that your excellency will cause it to be brought to my attention. And on such examination I have