The record-union., 1892-06-18

stated, among other things, that at the date OK
his fathers naturalization he was OF the age
OF 70 years months and / S days.
This substantially was all the evidence Of
any material character given on the subject
one or two other witnesses gave testimony
on the point, but TO no matter other than
heafsay. which would lend any aid 10 the
solution Of the question.
From this evidence it would seem impossi-
Die to draw but one conclusion as TO the fact
IN dispute, and that is that respondent was
considerably past the age OF twenty-one years
at the date of his fathers naturalization. If
he vas twenty-one years old July "a, 1S7l
When he went upon the Great Register he
was certainly much past that age on August
80. 1873, and there is nothing in the record
to which can turn with any degree OF con-
sIderaIion to sustain the suggestion of re-
spondent's counsel that the act of swearing
himself on the register at that time was the
thoughtless, inconsiderate act of a reckless
boy anxious TO exercise the rights of a man.
Possibly that might be said as to his going
into the ire department., but the evidence
does not indicate II even there. The respond
elt dOes not appear TO have been OF char
acJer wiling TO swear falsely in order to get
himself entitled to vote, He admits that ne
Thought that he was twenty-One at the time
and that ne was telling the truth, and the
sienIncant fact exists that at that time
his mother-the source of all others most
capable OF ahording him positive in
formation on the subject of his age
was living with or near him. And she was
still living in 1875, when he made another
aInuaVlt as TO his age tor q similar purpose;
>
his marriage license, he gave his age at II
years. Is it to be readily believed that
sucn an occasion as the last and without the
least apparent notice, q man would WantOnly
swear falsely? The presumption to the con-
trary is one of truth. And the age given in
the various subsequent affidavits shown, in
Guiding the one made on February 90, 1892,
ON application for naturalization, is on each
occasion entirely inconsistent with the claim
now made as to the date of his birth. 1t re-
quiTes only a similar matter of calculation to
n a n
or az years in 1899. he could not have been
born in 1852. The respondent says himself
that prior to being told by w. A. Rodgers,
since This suit was commenced, that he was
born IN 1852, he always believed himself
Older, and when we remember that his
mother, who could and would be apt to IN
form him correctly, lived until long after he
reached mans estate, the presumption is very
strong that his earlier impressions are more
likely to be correct.
As against these considerations the testi-
mOny OF the other witnesses has no weight.
The witness VIM. 4. Rodgers says that ''he
grespondenD was been in 1852, as near as
his mother told me-" This somewhat ambig-
uouS statement was given in very hesitating
ana uncertain manner; but meager and unsat-
lsiactory as it is it was Immediately followed
by others tending strongly to destroy its
effect. He said he married Mrs. Baxter in
1856; that he knew her at least two or three
years before they were married, and that
when he hrst met her the respondent was a
little boy, running about, talking and wear
ing pants. Two or three years prior to 1855
would take us back 10 1852, and if respond
eIlt was born IN the latter year, it is entirely
improbable ia the ordinary course of nature
and civilized habits that respondent was
running around with pants on and talking
unless children were decidedly more precO-
clous than IN this somewhat rapid age. After
a very careful consideration of the evidence
am entirely satisfied that when in his COM
munIcat1On to the AttOrney-CeneTal respond
ent stated that at the date of his fathers nat
ufallZation he was 23 years, months and 8
days old, he stated the fact correctly, or as
hEuYr
llSh it. This being 50, it must necessarily fol-
low that respondents legal status stands un-
affected by the naturalization of the father.
There is nothing in the point made by re-
spOndent that if he was under twenty-One
years OF age when his father took out his first
papers, that he became a citizen, notwith-
standing he was over tWenty-one at the time
of his naturalization. This would be to give
the preliminary act an effect upon the sons
status that II does not have with the father.
A stream cannot well rise higher than its
source. Besides it is in direct contraYention
OF the statute. The statute says the children
"oeing under the age OF tWenty-one years at
the time of the naturalization OF the parents;
shall be deemed citizens, etc., not children
under that age at the time declaration of in
tention is made. Declaration Is not natural
lZatiOn. But in any event the record is bald
the fathers declaration. The statute requires
1t TO be made two years before naturalization.
know of no principle upon which pre-
sumption could be INDUCED that it was made
earlier than that. SO if respondent was
twenty-three years and three months at his
fathers naturalization, he would be more
than tWenty-one at his declaration and con-
sequently not affected by it. The next ques-
ton, then, is whether respondent has become
d citizen by the marriage of his mother to @
citizen of the United States,
Briefly stated, the contention of the respond
ent on this point is that the child of an alien
woman divorced from her husband marrying
a citizen of the United States If the child is at
the time within the age of 21 years and under
the mothers legal care and control, is thereby
invested, equally with the mother with the
right Of citizenship, upon the same principle
as in case of the fathers naturalization. And
counsel cite in support OF this proposition
large array OF authority which | have care
fully examined, and which l may safely as
sumo sustains the legal principle contended
for. The question that arises, however, is
the principle stated. 1t will be observed that
two questions of fact are involved in the con-
tention TO be settled by the evidence or by
legal esumptlon-nrSt, was the mother of
petitioner divorced woman, and second did
she marry a citizen of the United States?
Upon both of these questions L have been
and after very jealous consideration OF
the evidence, 10 come to negative
conclusion. It is conceded that Thomas
II. and Mary Baxter, the parents of respond
ent, We're husband and wife. That they came
to this country from Australia about 1852 or
1883, and some time between that date and
1856 they separated. No serious attempt
was made 10 prove that they were ever di-
yorced, the respondent resting upon the con-
tention that subsequent or second marriage
being ShoWn the law after so long a lapse of
time would presume divorce; and. against
the objection OF contestant, the court permit
ted them, without proof of divorce, to put in
their proof of marriage. The only evidence
offered in support OF this fact was the testi-
mony of William A. Rodgers On his direct
examination he testified that he married Mrs
Baxter, the mother of respondent, in the fall
of 1855, in San Francisco. That they were
married by minister That at the time he
married her she was not living with Mr. Bax-
tor h11f Cd !, l,xl
separated from him tor two or three wears
That he lived with her until 1878, when she
died.
This comprised the direct examination on
this point. On cross-examination he was
asked by contestants:
How long had you known Mrs. Baxter be
fore you and she were married?" and an
sWered Three or four years"
Q.-Gou stated you were married in l S55
in the fall OF the year?
A.-Yes.
Q.-In San Francisco?
Ayes.
Odd you get a marriage license?
Al got marriage license.
Odd you get it in San Francisco?
Al got married by a minister and got
my license out in the city of San Francisco,
but lost it during the flood here in 1862
lost everything had.
Q.-And you got a license in San Francfsco9
Ayes. The minister was merely out on a
visit out here to California and went back.
Q.-Do you remember how long before YOU
We're married that you got the marriage IL
cense7
A.--Well, / cannot tell you that 1 got it.
Q.-You got the license short time before
you were married?
A.-YeS; q few months.
GA few months before?
Ayes.
Q-was. Mrs. Baxter living in San Fran
cisco then?
A.-GeS.
Cor in Oakland?
A-she lived partly in Oakland and partly
in San Francisco.