New York as then existing she did take her dower in the land. Under circumstances somewhat different, ten years later, in Mick v. Mick, 1833, 10 Wend., 379, the court denied dower to an alien widow of a natural-born citizen. In Priest v. Cummings, 1837, 16 Wend., 615, the latter case was distinguished from the first, and under the same conditions as in Mick v. Mick the wife was declared dowable; but this case was reversed on appeal, 1838, 20 Wend., 338, where the court also expressed the idea that citizenship was not retrospective. It is unnecessary for the purposes of this report to analyze the cases

on dower.

The question raised by the last case, however, is of considerable importance. It would appear, as there indicated, that at common law the naturalization of a female alien acted retrospectively with reference to her dower rights, but this conclusion was denied in the case in question, under the authority of the New York statutes. As to whether or not naturalization has this effect has more frequently arisen, however, in connection with cases involving the descent of land and the holding of land by an alien purchaser after naturalization. One of the earlier cases in which the first question was discussed was that of People v. Conklin, 1841, 2 Hill (N. Y.), 67. It appeared there that lands were devised in 1779, subject to a life estate, which actually continued until 1832. The demandant was naturalized in 1828. The court held that under the circumstances here, entirely aside from the question of citizenship, the demandant could not, under the canons of descent, successfully defend his suit against the plaintiffs. However, the judge went further and discussed the matter as to whether or not his naturalization could be retrospective, and laid down, in a dictum, what seems to be the law on this subject:

In answer to this objection we were referred to cases where it has been held that naturalization sometimes has a retroactive effect, and confirms a defective title previously vested in the alien. Those are cases where the alien had acquired lands by purchase, in which mode he may take, and was then naturalized before office found. But in this case the alien must claim by descent, and as he could not take lands in that way he had no estate or title to be confirmed by the naturalization. He took nothing on the death of his father; and naturalization, though it may confirm a defective title, will not confer an estate.

This language was subsequently quoted and relied upon in Heeney ". Trustees, etc., 1861, 33 Barb., 360, affirmed in 39 N. Y., 333, where at the time of the descent cast the party was an alien, though he was subsequently naturalized.

The second point has been raised and has also received consideration by the courts. In Jackson v. Beach, 1800, 1 Johns. Cases, 399, it appeared that an alien was the cestui in relation to certain lands which had been purchased and settled upon a trustee in his favor. Later he became naturalized, and the trustee then transferred the legal estate to him. It was insisted that this could not be done, but the court held that inasmuch as the alien could hold until office found, such naturalization confirmed the title which he had previously acquired. And this line of reasoning was followed in the case of Jackson v. Green, 1831, 7 Wend., 333.

The rights and duties which citizenship confers are not, as already suggested, within the purview of this report, and will not be further considered.

CHAPTER II.—NATURALIZATION BY NATURALIZATION OF PARENT. By the act of 1790 it was provided that "the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States." The act of 1795 reenacted this clause. The statute of 1802 provided that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of 21 years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States." This statute was in force down to 1878, and at that time was substantially incorporated into the Revised Statutes as section 2172. A statute in 1804 inade a further provision for minor children to this effect:

That when any alien who shall have complied with the first condition specified in the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act [the sections relating to taking the declaratory oath], may die, 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 by law.

The cases arising under these statutes may be classified in the following manner:

SECTION 1.-Naturalization by naturalization of the father.

A. WHERE NO DOUBT EXISTS AS TO THE FATHER'S NATURALIZATION. It has been from the first clear, under these statutes, that a minor child was naturalized by the naturalization of the father. In the matter of Morrison, 1861, 22 How. Pr., 99; People v. McNally, 1880, 59 How. Pr., 500; State v. Mims, 1879, 26 Minn., 183; Prentice v. Miller, 1890, 82 Cal., 570; Dorsey . Brigham, 1898, 177 Ill., 250; and see Haynes v. Ray, 1880, 54 Iowa, 109. It has also been decided that in order for the statute to operate in favor of the minor child the father must have taken out his final papers before the child became of age, Berry . Hull, 1892, 6 N. Mex., 643, 660; or, which amounts to the same thing, that the mere fact that the father has made the declaratory oath (taken out his first papers) will be of no force or efficacy in naturalizing the minor child; In re Conway, 1863, 17 Wis., 526; In re Moses, 1897, 83 Fed., 995; and see Ex parte Overington, 1812, 6 Binn, 371; unless indeed the father dies after the taking of such oath and before final naturalization, in which case the children are by the terms of the statute made citizens by virtue of the father's act. Schrimpf . Settegast, 1873, 38 Tex., 96.

However, while the decisions thus far stated are merely declaratory of the wording of the statute, a number of interesting questions have arisen for adjudication in the courts upon points not so well covered by the statute. One of the earliest cases is Campbell ». Gordon, 1809, 6 Cranch, 176, 183, in which it appeared that one William Currie, a British subject, emigrated to the United States, taking out his naturalization papers in 1795. At this time Currie had one daughter,

who was born in Scotland, and who at the time of her father's naturalization was a resident there, she not coming to the United States until 1797. In passing upon the question of her citizenship, Washington, J., said:

The next question to be decided is whether the naturalization of William Currie conferred upon his daughter the rights of a citizen, after her coming to and residing within the United States, she having been a resident in a foreign country at the time when her father was naturalized?

Whatever difficulty might exist as to the construction of the third section of the act of the 29th of January, 1795, in relation to this point, it is conceived that the rights of citizenship were clearly conferred upon the female appellee by the fourth section of the act of the 14th of April, 1802. This act declares that the children of persons duly naturalized under any of the laws of the United States, being under the age of 21 years at the time of their parents being so naturalized, shall, if dwelling in the United States, be considered as citizens of the United States. This is precisely the case of Mrs. Gordon. Her father was duly naturalized, at which time she was an infant; but she came to the United States before the year 1802, and was at the time when this law pissed dwelling within the United States.

It is therefore the unanimous opinion of the court that at the time of the death of James Currie Mrs. Gordon was entitled to all the right and privilege of a citizen; and, therefore, that there is no error in the decree of the circuit court for the district of Virginia, which is to be affirmed with costs.

The effect of this decision is, of course, to hold that it is immaterial that the child be a resident of the United States at the time of naturalization, it being sufficient that the child become a resident during minority.

But no other case has gone the lengths on this point that were reached in Young . Peck, 1839, 21 Wend., 389, affirmed on appeal, 1841, 26 Wend., 613. Here a father emigrated to America before the Revolutionary war, becoming at its close a citizen by virtue of the new allegiances created at that time. He left in Scotland, on emigration to this country a daughter who grew up, married, and remained in Scotland until after her husband died. She was born about 1770 and did not come to America until 1830. The court held that she was a citizen. The case is somewhat difficult to understand. On its appeal Chancellor Walworth stated the proposition of the case thus:

The question then arises whether his infant daughter, who had been left by him in Scotland in 1774, and who was still an infant, not only at the time he became a citizen of this State, but also at the time of the treaty of peace in 1783, is entitled to the rights of citizenship here, either by this transfer of the allegiance of her father or by virtue of the fourth section of the naturalization act of April, 1802. The learned chief justice who delivered the opinion of the supreme court has put his decision in her favor upon the latter ground.

A reference to the statute given, supra, will show that on this point it is ambiguous. It provides that children shall be citizens upon the naturalization of their parents where they are "under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, if dwelling in the United States." Obviously, the question is left open whether this means whenever they are dwelling in the United States they shall be considered citizens, or they shall be considered citizens if dwelling in the United States at the time of naturalization. As understood by the chancellor, Nelson, C. J., had placed his decision in the lower court upon the ground that the statute meant that whenever the child came within the United States it should be considered a citizen. But in his own opinion, the chancellor abandoned this position, and, while

affirming the holding of the court below, placed it rather upon the ground that the father became a citizen under the readjustment of allegiances at the end of the war and stood in a somewhat different position with reference to himself and his family from that in which naturalized citizens were placed.

The courts since then have not been entirely clear as to just which ground the case was decided upon in the upper court. Emott, J., in Ludlam v. Ludlam, 1860, 31 Barb., 486 at 491, s. c. affirmed on appeal 26 N. Y., 356, said:

The case of Young v. Peck (21 Wend., 389; s. c., 26 id., 613) was decided in the supreme court upon the statute of 1802, and in the court of errors, either upon the same ground or upon the effect of the Declaration of Independence and the treaty of peace, upon persons domiciled and remaining here after the Revolutionary war.

The case was taken on a writ of error to the Supreme Court of the United States, where the appeal was dismissed without an opinion, owing to the parties reaching a compromise. See Peck v. Young, 1843, 1 How., 250.

One year before the chancellor was called upon to give his opinion. in Young v. Peck a similar question had come before him in the case of West v. West, 1840, 8 Paige, ch., 433, in which it appeared that one West, a native Englishman, married a native subject of the same country, by whom he had three children, all born in England. By a second marriage, also to an English woman, he had four children, two of whom were born in England, and the other two in America after his emigration to this country in 1823. He was naturalized in 1830, at which time all his children were under 21 and were residing with him in New York. After his death the two American-born children appeared by their guardian and claimed the entire estate, on the ground that their brothers and sisters who were born in England were aliens and could not inherit from their father. The court decided that the act of 1802 "was intended to embrace the children of those who shall thereafter be, as well as those who had already been, duly naturalized under any of the laws of the United States. All the children of Thomas West, then, were citizens of the United States at the time of his death, and his real estate descended to them in equal proportion as tenants in common." The distinction between this case and the previous one is apparent, since in the latter the children were domiciled in America at the time of the father's naturalization.

In 1850 the question came before the supreme court of Arkansas in State v. Penny, 1850, 10 Ark., 621, where on a writ of quo warranto against the defendant as to why he held the office of sheriff, it was averred that "he was an alien and not a citizen of the United States at the time of his election to that office." It appeared that his father had emigrated to the United States in 1824 when the child was 11 years old; that his father had been duly naturalized and admitted to citizenship, at which time the defendant was under the age of 21 years and dwelling in the United States. The defendant relied on the naturalization of his father to prove his own citizenship. In sustaining this contention the court declared that the case of West v. West came fully up to the present case and sustained his judgment, that case "being an express adjudication of the chancellor of the State of New York, that, under the naturalization act of

Congress of 1802, the infant children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of their parents, became such citizens by such naturalization."

A Florida court in O'Connor v. State, 1860, 9 Fla., 215, in passing upon the qualifications of a juror, who, it appeared, was born in Bavaria and had come to this country while an infant with his father, but who had never taken out naturalization papers himself, though his father had while he was still an infant, the court adopted the language of West v. West quoted above.

In the North Noonday Mining Co. v. Orient Mining Co., 1880, 6 Sawy., 299, Sawyer, circuit judge in charging the jury, used the following language in defining the rule of citizenship according to which the jury should determine whether or not a locator of a mining claim was a citizen:

A person born in a foreign country, out of the jurisdiction of the United States, whose father is not a citizen of the United States, can only become a citizen by naturalization. The foreign-born son becomes a citizen by being himself naturalized, or by the naturalization of his father during the minority of the son.

In State v. Andriano, 1887, 92 Mo., 70, 76, the court decided thatThe infant children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of their parents, became citizens by such naturalization, and that the provisions of that act on this subject are prospective, and intended to embrace the children of those who should thereafter be, as well as those who had already been, duly naturalized under any of the laws of the United States.

For this proposition the court cited State v. Penny, supra; O'Connor . State, supra; West v. West, supra, and United States v. Kellar, infra. The court then considered Campbell v. Gordon, supra, but in connection rather with the question of the prospective effect of the statute of 1802 than as to the question of the residence of the child in the United States at the time of the naturalization of the parent.

It will thus be seen that there are two cases, Campbell v. Gordon, and Young . Peck, in which the question arose as to whether or not children born abroad and resident there at the time of the naturalization of their parents in America became by that act citizens of the United States. Both cases are peculiar on their facts. In Campbell v. Gordon the daughter came to America while she was yet a minor and before the passage of the act by virtue of which she was afterwards declared a citizen. The effect of the judgment was that the statute applied retrospectively. It must be said, however, either that the court considered that the act was intended to cover all aliens whose parents had been naturalized or who had come to America up the date of the passage of the act or that residence in America, at the time of the parent's naturalization is not necessary. In Young v. Peck, as already indicated, the ground of the decision is not clear. Following the argument of the chancellor, it is to be rested upon the fact that the father's citizenship was due to the readjustment of allegiances at the end of the war, and that a citizenship so gained is sui generis. This conclusion, however, that there can be any different kinds of citizenship is not in accord with the determinations made in other cases, for in Crane v. Reeder, 1872, 25 Mich., 303, that precise question was up before the court. It appeared there that the