Earl Warren: Number 198, Mauro John Montana, Petitioner versus Robert F. Kennedy, Attorney General of the United States. Ms. Lavin.
Anna R. Lavin: Mr. Chief Justice and if it please the Court. This action originated in the Northern District of Illinois as a suit brought under Section 360 of the Nationality Act of 1952 for a judgment declaring this petitioner who was born of a United States citizen mother and an alien father born abroad. We're asking for the (Inaudible) judgment that he be -- be declared a citizen of the United States. The petitioner is now on the end of 55 years old. He was conceived in the United States and he has resided continuously in the United States since his entry at the age of 3 months. He is one of six children born to his parents -- the one of six children born to his parents who was born outside the continental limits of the United States. His claim to citizenship rests on four alternative bases. The first is under Section 2172 of the revised statutes of 1874 which statutes were in effect at the date of his birth which provided that “Children of persons who are now or have been citizens of the United States are to be considered as citizens.” The petitioner's claim to citizenship in that regard urges that the words “children of persons” is to be considered in the distributive as well as in the collective and the words are now or has been, is not restricted to retrospective application but should in accordance with regular and accepted statutory construction be given prospective application. The second basis concerns the interpretation of the Act of March 2, 1907 which provided for resumption of citizenship by an expatriated parent and the naturalization of his or her child by such resumption. This was enacted subsequent to petitioner's birth but it has by -- well, it has been judicially determined to be declaratory of the common law then in existence. We urge that that statute is not to be given the interpretation of giving greater rights to a former expatriate or to a naturalized person than it does a native-born citizen of the United States. And the status of the petitioner's mother, Mrs. Montana, on her return to the United States should not be treated as less than such an expatriate -- an -- a former expatriate or a naturalized parent. The third basis is similar to the second. It concerns the Act of May 24th, 1934 which also provided for the bestowing of citizenship on an alien-born child of a -- or a current born child of a United States citizen parent, or also upon naturalization of such a parent. This statute again has been judicially interpreted as merely clarifying the uncertainties in the Act of -- of March 2, 1907. This Act, however, spells out that the bestowal of citizenship may pass by -- through the citizenship of either the mother or the father whereas in the Act of 1907, it merely recited the parent. The fourth basis is addressed to the equity powers of this Court and urges that the Government be not allowed to avail itself of the result of an erroneous instruction given by a consular official to the mother of the plaintiff, who was prior to the birth of the child and while awaiting his birth, a 15-year-old person. The facts of this case are fairly simple. Madelyn Montana, the petitioner's mother was born in New Jersey in 1890. She married Joe Montana in 1905. Joe, the father, had been born in Italy but he had for several years prior to the marriage resided in the United States. Joe Montana and Madelyn Montana left the United States for Italy in 1905 -- no, January 1906. At that time, Madelyn was been about four months pregnant. She arrived in Italy in February of 1906. By a month and a half after arriving, Madelyn went with her mother to the American Consulate to obtain a passport for her return home. The American Consulate refused to issue one to her in her advanced state of pregnancy. Mrs. Montana, the only witness at the trial -- trial testified that she -- he had said to her, “Lady, you cannot go in that condition. Come back after you get your baby.” She resided in Italy for -- with her mother until the birth of the plaintiff on June 26, 1906. Prior to that, however, in March or April of 1906, Joe Montana, the husband, the father of the petitioner, returned to the United States. Again, Madelyn Montana, testifying, said that she didn't know where he was going, we were on the (Inaudible) at that time. After the plaintiff's birth, she returned to the American Consulate and there she obtained a passport for herself and for her child. Mauro, Joe Montana and her mother, Mauro John Montana, his mother and the maternal grandmother, returned to the United States in September of 1906 where he was admitted as a United States citizen. The -- the parents --
Earl Warren: You say he was admitted as a United States citizen?
Anna R. Lavin: Yes, sir.
Earl Warren: That -- that is the --
Anna R. Lavin: The certificate of entry recounted that he was a United States citizen. It said --
Earl Warren: The petitioner?
Anna R. Lavin: The petitioner. Yes, sir.
Earl Warren: Yes.
Anna R. Lavin: Madelyn Montana, the petitioner and the mother were met in New York by Madelyn's father who took them to his apartment that they owned in New Jersey and there, she and her child resided for three months with her parents. About that time, Madelyn Montana and her husband apparently patched up their differences and she went to live with her husband and they have so lived from that time to this principally in the Chicago area. The first basis on which we --
John M. Harlan II: They were never divorced in any stage when --
Anna R. Lavin: No, sir. They were never divorced. The first basis on which we claim that Mauro John Montana is a citizen of the United States is under, as I said, the Act of -- the revised statutes of 1874, Section 2172 thereof. And it is our submission that the children or persons who are now or have been citizens shall before without -- with outside the jurisdiction and limits of the United States be considered citizens, imports birth any time during the existence of that statute when a United States citizen bore a child abroad. That interpretation provides for prospective application of the statute and it is in the Court with the strong legal presumption that statutes are meant to operate prospectively unless it is made clear and unequivocal that retrospective application is to be annexed to a statute. The Seventh Circuit, in the deciding this case in its opinion, expressly noticed that there was no such limiting language, but suggests that the Congress inadvertently overlooked limiting its operation to retrospective operation rather than the accepted prospective operation. That is the -- actually the basis for the decision adverse to the petitioner on this point in the Seventh Circuit. We suggest to this Court that the strong legal presumption directing prospective application should not be overcome by imputing inadvertence to the legislature. We also make the further suggestion that the words “are now or have been citizens” are not such strong, clear and imperative words using the language of the cases out of this Court as to reject the interpretation that they relate to a time contemporaneous with satisfaction of the provisions of the Act, that is sometime between 1874 and 1934 when a child of a United States citizen was born abroad. In our brief, we set forth -- forth at page a 10 series of cases where the word “now in statutes” has been so interpreted. That is to a time contemporaneous with the satisfaction of the provisions of the Act and its -- in accordance with such approved interpretation that we submit that the word “now in the Act” speaks as of a time when a person in such as Mrs. Montana, who is a United States native-born citizen, has a child born abroad any time between 1874 and 1934. The source --
Earl Warren: Is there any -- is there anything in the record to indicate what the administrative practice was during those years?
Anna R. Lavin: No, sir, there's not. At least my record -- my memory does not recall -- there's nothing in the -- in the record of the proceedings certainly. I'm trying to think of whether there was any opinion of the Attorney General or anything to that effect and I don't recall any. However, the -- the main source of resistance to the prospective application for which -- why -- which we urge upon this Court has its source of an article written by a man by the name of Horace Binney relating to the preceding Act of 1802. The Act of 1802 was substantially the same as this Act of 1874 providing similarly children of persons who are now or have been citizens shall be born abroad be deemed citizens but added a proviso that in order for that Act to become operative, there was a requirement of United States residence by the fathers of such children. That does not occur in the Act of -- in Section 2172. Mr. Binney said that are now was -- spoke as of the date of enactment referring to the Act of 1802 and he said that was April 14, 1902 and that was when its benefit stopped and with that interpretation, he spoke of the said plaintiff foreign-born children of citizens and it, he writing in 1854, indicated that there had been no law to cover this people during that entire 15 to -- 52 years. This Court -- this Court subsequently, in United States versus Wong Kim Ark and in Weedin versus Chin Bow at least passively accepted the interpretation put on that Act by Mr. Binney. But I do want to point out that in both of these cases or shall I say neither of them, the specific point here was not an issue. Further -- I would say further complicating the problem on retrospective whereas prospective application. The Congress in 1855 passed a law declaring children theretofore born or thereafter born outside the continental limits of fathers who were United States citizens were declared to be citizens.
Potter Stewart: In 1855
Anna R. Lavin: 1855, yes.
Potter Stewart: And that was apparently prompted by Mr. Binney's article, wasn't it?
Anna R. Lavin: There has been -- I think in Chin Bow, this Court indicated that it looked like that was what happened, yes. There was, however, no repeal of the Act of 1802 and the argument of the respondent in this case suggests inherently that this Act of 1855 was the repealer of the Act of 1802 and that the Act of 1855 applied exclusively to children of United States citizens born abroad. But unfortunately for that interpretation, Congress in 1874 substantially re-enacted the Act of 1802 as the Section 2172 under which we claim -- we -- which we make this claim of citizens -- citizenship. Here of course, there was the -- and there was no longer the requirement of prior United States citizen – residence, but aside from that, the Acts were the same. In further urging, as we do prospective application, the revised statute set forth the duties of the Commissioners in enacting the revised statutes and they said that their duties were to revise, simplify, arrange, and consolidate all statutes of the United States general and permanent in nature which shall be enforced at the time that these Commissioners completed their duties. We submit that -- that the duties, thus spelled out, statutes general and permanent in nature and those statutes which -- which shall be enforced at that time they conclude their -- their duties is an adoption of prospective application because in 1874, 72 years after the 1802 Act, we have a re-enactment of the same statute --
Charles E. Whittaker: -- may I ask, is that really a re-enactment under your view or is it just a rearrangement or re-codification of an existing statute?
Anna R. Lavin: Well, there was -- it -- it was spelled out in the Act that this was a repeal of all former statutes. The -- it was a revision. It was -- it was all the things we're saying. It was a revision, it was simplification. It was an arrangement. It was a consolidation but nonetheless, it only applied to statutes then enforced. It only applied to statutes that were general and permanent. And as this Court well knows, there were some 500 amendments after that culling out the ones that were surplus. This one did not fall by the waist side. So apparently, the -- the Court or the legislature and the Court -- courts considered this general and permanent in -- in its nature.
Charles E. Whittaker: Then do you understand the phrase in the statute reading “who are now” refer to 1874 and not 1802?
Anna R. Lavin: I -- I interpret and urge the interpretation that “who are now” refers to any time between 1874 and the repeal of the Act of 1874 and 1934. I -- I interpret and urge the interpretation that now refers to any time when the requirements -- requirements of the statute coincide between those two periods, between -- in the 52 years, between those periods.
Potter Stewart: You would read both as I understand it, as though the word “now” were not there. Do you think “now” is simply surplusage?
Anna R. Lavin: I --
Potter Stewart: Why, is that it? This is a general --
Anna R. Lavin: -- I don't think surplusage sir. I -- I would rather say that now refers to a time during the pendency of the Act and so has been interpreted in the cases that we -- that we have cited in our brief.
Potter Stewart: What if it's -- what if the statute simply said, “Who are you that the word now weren't there?
Anna R. Lavin: We would read it the same way.
Potter Stewart: You -- you would read it the same way, this statute the same way as though that's the way the statute is read --
Anna R. Lavin: Yes.
Potter Stewart: -- without (Inaudible)
Anna R. Lavin: Yes, sir.
Charles E. Whittaker: Well, don't you think from that statute passed in 1802, Congress used that word “now” with the view of relating to the question offers as a word in 1802, children as -- as of -- as of -- born abroad of persons who were then citizens were made citizens?
Anna R. Lavin: I don't think. Of course, we have no -- we have no remarks of the -- of the legislature at that time relative to what they did mean. I don't think that the words are so imperative as to require that interpretation and I think that is the rule that -- that binds us. I -- I suggested in my reply brief that the Fourteenth Amendment refers to persons born and it refers to a -- a matter accomplished, persons born in the United States shall be considered citizens. That -- that is just as clearly a word denoting past tense or present tense as are the words “are now” and this statute continues. It says persons who have been citizens, children of persons who have been citizens. In the next proceeding Section of -- or the next proceeding clause of 2172, we have children of persons who have been naturalized. That has been consistently interpreted to -- to be prospective in applications. I -- I suggest to Your Honor that the -- these -- these words are not the type of imperative words that will make us breakaway from the general rule of prospective application to our statutes. Now, at the same time -- at the same time in 1874, Congress re-enacted this Act of 1855 as Section 1993. Not withstanding the simultaneous re-enactment, it is again the position of the Government that 1993 is the exclusive statute applying to foreign-born children of United States citizen parents. That -- their urging of course found response in the Seventh Circuit decision which is now before this Court. And it -- it's our position and our urging upon this Court that that argument stands on several faulty bases. First, it in -- in repeals 2172 and a statute simultaneously enacted and of course, the people statute and it compels the retrospective application of a re-enacted statute, contrary to every basic principle of a statutory construction. It also ignores the duty of the Commissioners to re-enact statutes general and permanent in character. The argument seems to strain to divest in the face of the accepted law. It strains to divest citizenship when all facts in law are under the decisions of this Court be construed in favor of the claim for citizenship. The second phase of our argument with regard to Section 2172 brings us to the interpretation of children of persons. We submit that that is to include the distributive -- a child of a person as well as children of persons. Our principle reliance in that regard is found in the revised statutes themselves. Section 1 of the revised statute says that in determining the meaning of words -- the plural number may include the singular. The -- there is a further basis for our suggestion although I do think that in itself is sufficient. The further basis is that the next preceding clause, the first clause of 2172, we rely on the second, has been interpreted many times, many times to apply to the distributive that is a child of a person. The respondent's argument ignores the provisions of Section 1 allowing the interpretation as including the distributive and explains the cases themselves as meaning applying in the singular only when the -- one of the -- the alien parent is dead or is completely divorced from the citizen parent and the citizen parent has custody of the child. I -- I suggest that they had argument -- rewrites the statute. We find nothing in the statute that provides that this only applies to the distributive when the alien parent is dead or when the alien parent is divorced.
Potter Stewart: Are -- are there -- both of the petitioner's parents still alive?
Anna R. Lavin: Yes, sir.
Potter Stewart: Both are.
Anna R. Lavin: Yes, sir.
Potter Stewart: And they're living together as man and wife?
Anna R. Lavin: Yes, sir.
Earl Warren: Is the father ever naturalized?
Anna R. Lavin: No, sir. He is still an alien, an alien resident of the United States. Along with this -- this argument for the interpretation by the distributive or as a distributive, we -- we get assistance from the source where we get a lack of assistance in the other phase of our argument and that is Mr. Binney. Mr. Binney expressed some shock at the wording of the statute and -- and stated -- stated a realization that the clear wording of the statute would pass citizenship through a mother. He said that those words maybe understood as also being used distributively to comprehend any person whether father or mother and thus, to make the child of an alien father and a citizen mother a citizen. The respondent's attempt to restrict this to both parents would -- would have to, I suggest, fail in the light of the fact that Section 1 allows the distributive. If there is any reason why the distributive should not be applied here, I suggest that it's on the -- the respondent to show a good reason why it shouldn't be. I also suggest that this matter of the parents being dead or divorced, the alien parent being dead -- dead or divorced finds no support in -- in common sense. Whatever be the estrangement of the parents, that's still the child of the parents. It's -- it's rather unusual that the immigration law itself presently operative says that the -- the child shall also include a post Jewish child. I -- I suggest that on that point, all fact in law is contrary to the Government's contention in this regard. The third of our four alternatives concerns the Act of --
Charles E. Whittaker: And might I ask you --
Anna R. Lavin: -- rather the second --
Charles E. Whittaker: Please Ms. Lavin, may I ask you in that connection, in -- in connection with the argument you've just made, then what would have been the purpose in 1855 for Congress by Section 1993 to make citizens of children born out of this country to United States fathers, only fathers.
Anna R. Lavin: Well, I -- I don't know the answer to that, but I -- I can give what I think is the -- a fair answer. It suggests itself in the Government's brief. At page 34, the Government has quoted Congressman Cutting who proposed the 1955 legislature. And Congressman Cutting said in the reign of Victoria in the year 1844, the English parliament provided that the children of English mothers, though married to foreigners, should have the rights and privileges of the English subjects, though born out of allegiance. I have not, in this Bill, gone to that extent as the House will observe from the reading of it. Now, that in itself, being read by itself is rather ominous, but yesterday through the facilities of your library, I pulled out the -- the legislature during the time of Victoria in the -- in the year 1844. This reads rather unusually. It -- just prior to this Section to which he refers, it says that native-born British subjects shall be able to hold land, they shall be able to own personal property, they shall be able to hold certain offices very similar to the provisions that we have under our Constitution as the precedent who must be native born. The next succeeding Section is the Section to which he refers. The next succeeding Section says that the child of a United States -- of United States say, the child of a British mother, though born out of allegiance shall inherit all the -- what is this, the rights and privileges of English subjects. The consecutiveness of the Section would seem to appear that such a woman would be able to pass unto her child the rights of a native-born child including the right to hold the offices that a native-born child would have. Mr. Congressman Cutting said, “I haven't gone to that extent in this Bill.” And so he has not because in the re-enactment in 1874, you will find that 2172 under which we are now before this Court is listed under naturalization. And 2172 says that those children will be deemed citizens. 1993, the re-enactment of the Act of a 1855 is listed under citizenship. And it says that those persons shall be declared citizens. The Guest versus Perkins case urged that Mr. Guest was in fact a native-born citizen entitled to all the rights and privileges of a native-born citizen and while they never really got too far because he had -- his father had not had the five years residence, the -- the relationship I think is there that children under 1993 are to be considered as native-born citizens. 2172 naturalized citizens.
Speaker: (Inaudible)
Anna R. Lavin: The rights to hold office.
Felix Frankfurter: Presidency?
Anna R. Lavin: Pardon me sir?
Felix Frankfurter: How About the Presidency?
Anna R. Lavin: The Presidency, yes.
Felix Frankfurter: You mean a child born in Italy could become the President under this?
Anna R. Lavin: I -- I think we're going to have to have you interpret that.[Laughs]
Potter Stewart: (Inaudible) says what, natural born. Doesn't it? Not native born.
Anna R. Lavin: Yes, it says natural born. I think --
Potter Stewart: The -- the Government --
Anna R. Lavin: I think I'll to go with you on that. I don't remember too but I do think that that is the great -- great distinction here. Here, we have 2172 under naturalization, 1993 under citizenship. I think there is a -- a great distinction. I think we also have the words “be deemed” under 2172 and declared citizens under 1993. I think a distinction was intended and I think that the -- I think perhaps someday, this Court will see the determination of whether a distinction was intended. Going on then to the Act of March 2, 1907, that was enacted about six months after -- with no more than, about nine months after the birth of the petitioner. This Act provided that a child born abroad should be deemed a citizen of the United States by virtue of the naturalization or resumption of American citizen -- citizenship by the parent. The Court will note that no provision -- no provision at all was made for the child born abroad of a citizen parent, though I am sure that the Congress was aware that there was such a class of persons. I think we -- we can impute to the Congress a realization that the situation did exist and I think that we can also -- impute to them an interpretation that no provision was necessary that such children were in fact automatically bestowed with the citizenship of the citizen parent. The District Court of Minnesota in a like situation, the petitioner, Black, recognized that the citizen mother was not provided for. But that Court held that for all practical purposes, she was in the same position and as a woman resuming citizenship or being the current or at being naturalized and that her children should be likewise made citizens of the United States upon her return to the United States. The -- there was of course a requirement that there be a termination of the marital relation with the alien father. The Attorney General, in one of his opinions in Cole, Erie, Picard came to the same conclusion. The resistance of the respondent is first, that the Act was not made law until subsequent to the plaintiff's birth. The District of -- the District Court of Michigan had occasion to entertain just that question. It was the District Curt of Michigan and petitioner tries to say that this Act was declaratory in the common law. The termination of the marriage relationship that is provided for in this statute as necessary to enforcement of the Act has been satisfied by much less than the absolute divorce for which the respondent contends. In U.S. ex rel Guest versus Perkins, there was a separation agreement between the parties and the Court found that to be sufficient. Here, we have the parents who were actually separated before the child's birth. He was in the absolute and sole custody of his mother, both at the time his birth and for a limited time thereafter. We suggest that's directly within first (Inaudible) case and the Black case and the Guest case except for the formality of the document. The respondent nonetheless contends that the later reconciliation of the parents divested this citizenship if he took it and does not inform us of how that did occur and certainly, there's no provision in law for its occurrence. It's our submission on this point that the sole actual custody in the -- in the citizen parent and the return to the United States for permanent residence coinciding that the petitioner just -- thus became a citizen under the provisions of the Act of March 2, 1907 and that only by his own act could he divest his citizenship. In 1934 we --
John M. Harlan II: But effect of that argument where he is to read the resumption of American citizenship as being a resumption of the residence?
Anna R. Lavin: In accordance with the decisions in -- in the petitioner Black case and of the Attorney General's opinion in Cole-Picard, both of which are incorporated in our brief.
John M. Harlan II: That's Attorney General Mitchell's opinion?
Anna R. Lavin: I don't know, sir. I don't know.
John M. Harlan II: He took your views.
Anna R. Lavin: I hope so.[Laughs]
John M. Harlan II: Yes.
Anna R. Lavin: We have a -- a third basis on which we claim citizenship and in that regard, we suggest the same argument we've just presented to the Court in the light of the Act of May 24th, 1934. That provided for the bestowal of citizenship upon the minor child of a mother or a father who resumes citizenship or who was naturalized. It eliminates the necessary determination of the marital relationship. It does require however, five years residence by the child which we're -- we'll able to satisfy. In -- in interpreting this Act, Act of --
Charles E. Whittaker: Ms. Lavin -- if I may ask, let's try to (Inaudible) on persons resuming citizenship or being naturalized?
Anna R. Lavin: Yes, sir.
Charles E. Whittaker: We would have more application than to this one whose endeavor was an alien?
Anna R. Lavin: In -- as I was saying, in the petitioner Black, the -- the District Court, I believe in Massachusetts found that there was no reason why this woman who is in the same position as an expatriate or resuming citizenship or a person taking natural -- being naturalized where there was no -- where there was no real distinction to all practical purposes, she should get the benefit of the Act and actually, in that case, did. And the opinion of the Attorney General in the Cole-Picard -- well, in his opinion, is precisely the same that there is no reason to restrict that -- that grant of citizenship to resumption and to naturalization. That actually, everything else being present, return to -- to residence and the then present United States citizenship, that woman should also be able to pass on that right to her child.
Charles E. Whittaker: Well, the statute does not really need in the -- that it shall apply only to persons resuming citizenship or being naturalized, but as you treat it, applies to persons who were never aliens?
Anna R. Lavin: As I read it, Mr. Justice Whittaker, as I read it, the failure to provide for those people, United States citizens, who return for residence, indicates a recognition in the legislature that no provision was needed that their children automatically were citizens, but that -- that aside, I submit to this Court that such a person who has never been expatriated, who'd -- who is not a naturalized citizen but a native-born citizens who'd certainly have at least the rights that are accorded, the former expatriate and the naturalized citizen.
Charles E. Whittaker: Well, it should have, although is one thing if it's dependent upon congressional action, limited to what we did do?
Anna R. Lavin: I'm -- I also rely upon judicial interpretation and the sole -- sole example of judicial interpretation is the Petitioner Black case and I urge that interpretation upon the Court. I -- also, we have the interpretation by the Attorney General, the head of the Department of Immigration who -- who also so interpreted the -- the Act.
John M. Harlan II: Where is that in your brief?
Anna R. Lavin: Petitioner Black, 24 and 26.
John M. Harlan II: They fit into the Attorney General --
Anna R. Lavin: That's for a dictionary. That's also found at 26 and 27.
John M. Harlan II: Thank you.
Anna R. Lavin: It's 37, Op. Atty. Gen., page 90 and it was indeed Mr. Mitchell. Now, in urging the -- the Act of 1934 made law some 28 years subsequent to the birth of this child. We ask the Court to employ the same interpretation that it employed in the case of Kelly versus Owen, 74 U.S. 476. The Act of 1934 says that the children of -- foreign-born children of the United States mother or father will be deemed citizens of the United States on the performance of the required residence. The -- in Kelly versus Owen, we had a similar provision that said “Women or woman married to or who shall be married to a United States citizen shall be deemed a citizen.” This Court said that the term “married” didn't refer to a married ceremony being celebrated, but to a state of marriage and therefore, it applied as well to the persons who had been married before, the persons to be married subsequently and under that interpretation, applying that interpretation to this Act, we ask that it merely -- it be interpreted as being declaratory of a state in which this petitioner was in. That is that he was the child of a United States citizen born abroad and is therefore -- and therefore, shall be deemed a citizen. Our final contention is that the respondent is estopped from asserting petitioner's birth abroad as an impediment to his citizenship. We urge that the refusal of a passport to the petitioner's mother so that she might bear in the United States a child that had been conceived in the United States and hope that for the first three months of its life has always lived in the United States that -- that that erroneous instruction can't be relied on as a basis for alienage.
Potter Stewart: The Government's claim is that the mother didn't need a passport to return to the United States?
Anna R. Lavin: Yes. The Government's claim is that she didn't need a passport. The Government's argument continues that if she needed a passport for internal reasons in foreign country, she would be given a passport to as a -- ensuring the protection of the United States afar. The fact is that this record shows that after the child born -- was born, she was given a passport which would indicate that in fact she did need one. Now, there is nothing in the record and this was a -- I might say a belated argument, raised only that appeal in the Seventh Circuit, but the -- the inference from the circumstances, the fact that she would get a passport if she needed one and the fact that she did get one indicates that she did need one. Beyond that -- beyond that, the record doesn't go nor am I at this time able to go because the point was not brought out during the time that we were taking testimony on this.
Potter Stewart: Generally, not as at least, you get a passport before you left home, wouldn't you?
Anna R. Lavin: Well, at that time, there seems no doubt that you just got on a boat if you want to leave the United States. Your problems, as I understand, arose when you were in these various foreign countries, more in getting out of there than getting out of here. Actually, aside from that, the two basis of resistance that the Government gives to this argument is a suggestion that the trial judge didn't seem to believe Mrs. Montana. There's -- there's no indication of that in the record. They -- every indication in the record is faking all the story. The basis for my decision is that the father wasn't citizen and that's all. So there is no -- no reason for making such suggestion or an argument at this time. At -- the Government always -- also suggest that, ”Lady, you can't go in that condition. You come back when you get your baby” was merely a suggestion, an indication that he was concerned with her health. I -- I suggest to the Court, it certainly doesn't sound like a suggestion and it certainly would not have the impact of a suggestion for a 15-year old girl away from her home and in a foreign country reliance upon the counsel to give her aid and protection. We -- we submit that the petitioner here is a citizen by virtue of any of the four arguments we urge. And we also urge upon this Court to reverse this case and remand it with a -- with instructions for an appropriate judgment to accord the -- the petitioner a citizen of the United States. Thank you.
Earl Warren: Mr. Gordon.
Charles Gordon: Thank you Your Honor. May I please the Court. This suit seeks a judicial declaration of citizenship. It was brought after the entry of a deportation order. In the District Court, the trial court conducted a hearing de novo, permitted petitioner to present his proof and at the conclusion of the case, granted the motion to dismiss. The Court found that petitioner had not established a title to United State citizenship under the Constitution or under any statutes. The Court of Appeals unanimously affirmed. Now, the facts of course are simple. Petitioner was born in Italy in 1906. His parents had been married the previous year in the United States and had gone to Italy on a visit with Mrs. Montana's parents. At the time they went to Italy, Mrs. Montana was about four months pregnant. After the child was born, the -- the mother brought the child back to this country, the child was then about three-months old and he has continued to reside in this country since that time. Now, it is undisputed that at -- at the time of the child's birth, the mother was an American citizen. She was born in this country and had never lost her citizenship. It is also undisputed that at the time of the child's birth, the father was an alien and that he has remained an alien until the present time. Now, these are the simple and controlling facts that the petitioner was born outside of the United States in 1906, that at the time of his birth his father was an alien and his mother an American citizen. Building from these facts --
Earl Warren: Is it also uncontradicted that she did go to the consul and asked for a passport and was denied?
Charles Gordon: Your Honor, it is not -- it is contradicted by us but there is nothing in the record to oppose the story. This is the story so --
Earl Warren: You -- you say you contradict it here?
Charles Gordon: Well, we -- we doubt it. I can't say I -- I contradict it, we doubt it.
Earl Warren: Oh, well, I'm not asking about your doubts.
Charles Gordon: We have no basis for contradicting.
Earl Warren: I'm not asking about your doubts, I'm asking about the record.
Charles Gordon: The record --
Earl Warren: You're talking about what was uncontradicted and I merely asked you if it was uncontradicted in the record that she went to the -- the Consul and asked for a passport, and it was denied.
Charles Gordon: Well, Your Honor, I -- I wouldn't put it that way. I'll say that the only testimony in the record is the testimony of the mother.
Earl Warren: Why do you equivocate?
Charles Gordon: Because she is an interested witness and I think this is not a patently incredible story, a story which is very convenient and is told for the first time without any corroboration 50 years after the alleged event.
Earl Warren: Why didn't you ask the judge to make a finding to that effect?
Charles Gordon: Well, the judge made a complete finding on the basis of all the evidence. He said that the petitioner, plaintiff in the case before him has failed to sustain the burden of showing himself to be a citizen of the United States.
Earl Warren: Why?
Charles Gordon: For every reason that he is alleged.
Earl Warren: I thought you said a moment ago because his father was an alien?
Charles Gordon: This is one of the reasons. The judge didn't say that. The judge said two things. He said petitioner, plaintiff in that -- in the case before him, has failed to show that he is a citizen of the United States under the Constitution or under any statute. Two, petitioner has failed to sustain the burden of proving himself to be a citizen of the United States. These are the findings of the Court. That is all the Court said and I think the Court was considering all the evidence, he was there, the testimony was before him and I think on the basis of that evidence, he made a complete finding on all the contentions which were made by the petitioner. Now, obviously, there's no citizenship right here under the Fourteenth Amendment. It says the petitioner was not born in the United States. Therefore, any claim to citizenship must dependent on some specific statute enacted by Congress.
Earl Warren: May I revert just a moment to -- again to what I asked you about her going to. Do you say that it's incomprehensible that this woman would -- would go to the consul and -- and that she would be denied. Why do you say that?
Charles Gordon: Well Your Honor, as Mr. Justice Stewart pointed out, the fact is and as this Court pointed out in its opinion in Kent against Dulles, the majority opinion, at the time that petitioner was in Europe in 1906, petitioner's mother, excuse me --
Earl Warren: Yes.
Charles Gordon: -- the laws of this country did not require a passport for a person who wished to come to the United States. So that it -- it wasn't conceivable that a -- a lady in Mrs. Montana's condition who wished for a passport and came up to the consul, wished it for all convenience, would ask for a passport would be denied it. What would be the point of the consul denying a passport which was not required as a document for entry under our laws?
Earl Warren: Well, is it -- and was inconceivable that -- that she would not go there and ask for a passport before baby died or before a baby was born, why would she go afterwards and get one?
Charles Gordon: Well, Your Honor I -- I say that that is not supported in the record. Again as Mr. Justice Stewart pointed out, the logical assumption is that if a person wanted a passport, he would've obtained it before leaving the United States. Now, it's that --
Earl Warren: Didn't she get a passport to come home?
Charles Gordon: She did -- she says she did.
Earl Warren: What, is there a (Inaudible) --
Charles Gordon: Even that is a questionable because this is based only on her own statement. There is nothing in the record to show that there was such a document.
Earl Warren: Well, if she was -- if she was not a citizen of the United States, would she have needed a passport?
Charles Gordon: She wouldn't have needed a passport either way.
Earl Warren: Whether she was a citizen or not?
Charles Gordon: But that is true, whether -- you're right. If -- if she were an alien, she would not have needed any document. If she was a citizen she'd, likewise, would not have needed a document at that time. All a person had to do at that time was to buy a ticket, get on a boat and come to the United States. And then at the port, he would be admitted if were admissible. As a citizen, she would've been admissible without any doubt. As I say, I think the -- the crux of this thing is that all these depends on what she says now 50 years odd later when she has an obvious interest in the controversy. It seems to me --
Hugo L. Black: May I ask you because I don't quite understand the argument. Are you saying that that would make a difference if she had done that?
Charles Gordon: I -- I'm not saying that it would make a difference, but I'm saying, taking the argument at its utmost, assuming that a passport had been applied for, it is inconceivable that the Consul would have denied a passport under these circumstances and we say this is the story of an interesting -- a witness who has an obvious interest.
Hugo L. Black: Well, you frequently have that but they're not usually just thrown out. Assuming it is material, they are not just usually thrown out because somebody says they're interested, we don't like what it said.
Charles Gordon: But it can be disbelieved and we believe that the trial court was the best judge of it here, sir. We believe that the trial court, after hearing this story, said, “I've heard your argument. I've heard your theories which were advanced before him, the same theory and I find that you haven't sustained the burden of proving yourself to be a citizenship of the United States.” That, we believe is a complete finding on every contention which was advanced before him.
Earl Warren: Where is the finding in the record? Do you have it, Mr. Gordon?
Charles Gordon: Oh, here it is, I'm sorry.(Voice Overlap) -- The judges' finding at page 39 and the first finding is number three, the one that he's not a citizenship under the Constitution or under any statute. The second is number four, right below it -- rather, number five. Number five on the next page.
Hugo L. Black: I don't understand why you say that maybe it would, I -- I have read your finding but I do not understand why you say, his finding, that he was not a citizen, shows as a finding that she didn't go to the -- to get her passport?
Charles Gordon: Well, assuming Your Honor that it might be material that a -- if a consul had acted in this fashion and then denied a passport, that might have -- assuming that might have create an estoppel, then it would be incumbent on the judge to determine whether such a situation actually had occurred. This was evidence which was produced at the trial. The contention was made before Judge Miner at an earlier stage of the proceedings that there was an estoppel and therefore it was a contention before him. At the conclusion of the case, Judge Miner said, “I find that plaintiff has not sustained, petitioner now has not sustained the burden of showing himself to be a citizen of the United States.
Earl Warren: Well, that's a conclusion of law?
Charles Gordon: A conclusion of law.
Earl Warren: Yes. Now, you -- you speak of the findings. Now, the two findings that you point out are two and five on page 39. Number two says, “Plaintiff's mother, Madelyn Montana was born on October 2nd, 1890 at Jersey City, New Jersey and has since that date, continuously been a native and a citizen of the United States who has never surrendered or lost her citizenship or expatriated herself.” Certainly, there's no finding there that it was -- it was not true.
Charles Gordon: This is --
Earl Warren: And then number five, “Plaintiff entered the United States of America on September 19th, 1906 when he was approximately three moths old, having been brought to the United States from Italy by his mother, Madelyn Montana.” Certainly, there is nothing there that indicates it. Now, where is the finding?
Charles Gordon: There is no finding of fact on this issue --
Earl Warren: But I understood you to say that he found that all the facts worked against him?
Charles Gordon: As a matter of law. Oh no, he did not find a matter of fact. I -- I'm sorry if I --
Earl Warren: I was talk -- I was talking about the finding of fact.
Charles Gordon: There was no specific finding of fact on that question.
Earl Warren: Well, that's -- that's all I ask you.(Voice Overlap) --
Charles Gordon: There is a finding of law which I think comprehends all the contentions that were made before him.
Felix Frankfurter: Mr. Gordon, I'm all for a counsel, who restricts himself to the case that – that's before the Court and no speculations and (Inaudible) outside of it or even to answer outside it, but I do think the question of whether your view of the argument about the validity or the acceptability of -- of the mother's testimony, I do think the question whether if that isn't -- if that is maybe subject of discussion or the difference of opinion, I do think the question whether the consul's conduct could estop, is relevant to the determination of this case. This -- the estoppel argument assumes that the statutory material, the statutory requirements, the statutory basis for finding citizenship, precludes the finding of citizenship and that -- and that despite that fact, there's an estoppel against the United States to raise the exclusionary provisions of the statute. I do think that that's relevant to your case.
Charles Gordon: It's certain is. It's one of the --
Felix Frankfurter: You are going to argue it?
Charles Gordon: On the estoppel?
Felix Frankfurter: Yes. I don't --
Charles Gordon: Well, we --
Felix Frankfurter: I don't mean this moment but are you going to deal whether any consul has the power to estop an act of Congress not being enforced.
Charles Gordon: We -- we believe whether there were --
Felix Frankfurter: Well, I -- I don't want you to -- I just want to know whether you will argue it.
Charles Gordon: Well, Your Honor, we think that this -- in the first place that this -- the story is so patiently incredible that the court below did not believe it and that it should not be believed here.
Felix Frankfurter: Alright.
Charles Gordon: And secondly, we think that if there was any such action, the action of the consul in -- in denying a passport which was not required had nothing to do with this woman's coming to the United States. All she had to do was to buy a ticket and go to the boat and come to the United States. Because of --
Felix Frankfurter: Well, a estoppel -- estoppel implies conduct outside of what is necessary and somebody does something which the law recognizes as creating a situation that forecloses an objection to the consequences of that action flowing. That's what I understand estoppel to be. And what I want to know is whether on the assumption for the admirable argument of petitioner's counsel, dealt with last, namely, after all the statutory or legal provisions, are against it. She says, “They can't be raised here” because of the conduct of that -- of the -- of a consul and I do think that is relevant, very important as I see it, for the Government to take a position on this question to estoppel.
Earl Warren: Would you answer that after –[Recess]
Charles Gordon: Thank you, sir. Reverting to the question which we were discussing in the intermission, position that the Government takes is about this. We doubt that the action of a counsel -- consul, Court preclude the United States from pointing out and contending that the provisions of the Constitution had not been complied with or that the provisions of a statute have not been complied with. However, even if it were found that a consul by some action could preclude or estop the United States, we believe that there is no basis for such an estoppel in the instant case because if an estoppel possibly could arise, it would arise only if the wrongful action of the consul directly deprived an individual of a right or of the privilege of completing certain steps which would give him a right. Now, in this case, there was no such right. There was no right to come to the United States with a passport. There was no requirement of a passport. The only thing that appears in this record is Mrs. Montana's statement that she went to the consul and asked him about the coming back to the United States and he said, “I'm sorry Mrs., you cannot in that condition. Come back after you get your baby.” Now, there's no testimony in this record that Mrs. Montana thought she needed a passport or that the consul told her that she needed a passport and there certainly couldn't be any showing that there was a requirement of a law of the United States that she had to have a passport to come back to the United States. The fact is as this Court has said, and any research will show that in 1906, our laws did not have a requirement of any document for anybody whether he was citizen or an alien as a requirement for coming to the United States. Now, we say that taking Mrs. Montana's testimony at its maximum, the most it amounts to is a statement that she went to the consul and he told her to come back some other time. We think that there are other matters -- there is other testimony by her, by Mrs. Montana herself which cast doubt on this story of a fact that consul refused her a passport. For example, Mrs. Montana testified that she went with her parents to a little town and that the officials in this little town without any difficulty, without any hesitancy issued passports to her parents, that they told her to go to Naples for her own passport. Now, if the officials in the little town which is not described had authority to issue passports to her parents, why didn't those officials have authority to issue the passport to Mrs. Montana? Why was it necessary to sent her to Naples where this alleged incident occurred? It is also said, it was argued by counsel today and was mentioned in the brief that this passport might have been a requirement under Italian law, it might have been. Is there any showing in the record of any such requirement? Is there any mention in the brief of any requirement of Italian law? No, this is complete speculation. As a matter of fact, there is no showing that this passport was required for anything except the supposed convenience of Mrs. Montana, the wish to obtain a passport.
Charles E. Whittaker: Where does this argument get us? As I understand, it's designed only to the possibility that if she had been allowed to comeback, petitioner might have been born in the United States.
Charles Gordon: That is so, sir.
Charles E. Whittaker: But that's not the fact, so why aren't we confronted with realities here?
Charles Gordon: That is what the Court of Appeals said sir and I believe that is the proper approach. The fact is that the Constitution grants citizenship to persons born in the United States. Mr. Montana was not born in the United States.
Felix Frankfurter: That -- that -- those observations that you've just made are -- are a way of saying there couldn't be estoppel, but if there could be a estoppel, if the consul in fact dissuaded a lady from coming here and thereby having a child born here, whether he had power to do that that, whether she needed a passport, whether the Italian law required the passport, all those things are immaterial if a representation by an American official to a woman in her situation made her change her position, whereby the child was born in Italy instead of in the United States. If that could create an estoppel, you mean as a matter of law whether that was put to one side or put to sleep assuming your conscience over the statute precludes a non-native born child to be a citizen under United States federal law, if that could be done, then I should think you'd have a stronger case as in any and the fact that it didn't turn out that way is precisely the situation which brings the estoppel into play if it could brought into play.
Charles Gordon: ell, that -- that also depends, sir, on some additional assumptions. The first of these is that the story is believed and of course I --
Felix Frankfurter: But on -- that goes too whether or not, the estoppel is made out.
Charles Gordon: That's one.
Felix Frankfurter: That's if --
Charles Gordon: The second is I think --
Felix Frankfurter: (Voice Overlap) things clear. That's in -- that's -- that is that there's no proof of the estoppel.
Charles Gordon: That -- that we contend and we believe that the record --
Felix Frankfurter: I understand that, but (Inaudible) --
Charles Gordon: Alrightt, that -- that's the first.
Felix Frankfurter: -- two very different things. One, if you say one, the facts making out an estoppel disproved or not proved, though the burden is on her to prove it. If you say the record doesn't sustain that play as a matter of fact then there is no estoppel because there's no estoppel, but if there is an estoppel, then one gets to the question whether it had meaning by that, estoppel in the loose sense, about as loose as the word as there is then, lose the concept if there is in the law, meaning by that that in reliance upon representation made to her, she to her disadvantage, changed her position with terrible consequence. Now, I understand your position to be that as a matter of law, no consul could create an estoppel.
Charles Gordon: That is our first position and the second position is that even if there were such an estoppel --
Felix Frankfurter: It doesn't -- there is none here.
Charles Gordon: That the second -- does he -- there's still a third, that even if the consul did this, it did not directly result in the deprivation of a right. There was no right to a passport as an instrument --
Felix Frankfurter: I don't care about the passport. The question is whether it is -- if the consul hadn't told her that, she would somehow or rather gotten to this country before the child was born --
Charles Gordon: Well, your Honor there's nothing of the record.
Felix Frankfurter: What do you think of that?
Charles Gordon: There's nothing in the record to support the assumption that she couldn't have or wouldn't have --
Felix Frankfurter: Alright.
Charles Gordon: -- gotten to the country regardless of the consul's statement.
Felix Frankfurter: And then thirdly, she did -- she was not disadvantaged by the representation made.
Charles Gordon: That is so, sir.
Felix Frankfurter: Alright.
Charles Gordon: Now, if I may proceed to -- if there are no further questions on this phase and I'll be glad to have some any further --
Hugo L. Black: May I ask you one question? I've been looking at the record, does it does show why he's being deported?
Charles Gordon: I'm sorry, I didn't hear the --
Hugo L. Black: Does the record show why this man is being deported?
Charles Gordon: Oh, I -- I can tell you, sir.
Hugo L. Black: Well, I if it is not in the record?
Felix Frankfurter: Is that in the record?
Charles Gordon: It is not in the record.
Felix Frankfurter: Is it relevant to this case?
Charles Gordon: I as a matter of information, I'd be glad to tell you, sir.
Felix Frankfurter: Alright. Would you please answer my question?
Charles Gordon: It is not relevant --
Felix Frankfurter: If it's -- is it legally relevant?
Charles Gordon: No, sir.
Felix Frankfurter: If it's legally relevant then it ought to be in the record. If it's not legally relevant, then why do you tell us?
Charles Gordon: Because I'm asked.
Hugo L. Black: I asked you, (Voice Overlap) if it was in the record?
Charles Gordon: That's not in the record, sir.
Hugo L. Black: You mustn't respond to every curiosity that one may have.
Charles Gordon: I don't think I have any alternatives, sir.
Earl Warren: Mr. Gordon, just one other question. I understood counsel to say when -- when he came to this country three months of age, he was registered as a -- as a citizen. Now, who was that done by? Is that done by the Government based upon any research or is that done by the parents?
Charles Gordon: No, your Honor. When the person comes to the United States -- I refer to page 37 of the record.
Earl Warren: 37 of the record --
Charles Gordon: When any person comes to the United States, a record of his arrival is established under law.
Earl Warren: Yes.
Charles Gordon: And at the time of his arrival, the immigration officer who recorded this recorded the child as a citizen.
Earl Warren: Yes.
Charles Gordon: So we contend that this was an error. There was no hearing, no adjudication. The mother came with a child in her arms and the child was recorded as a citizen. Now, the most that can happen here is that this officer made a mistake and that mistake can be corrected.
Earl Warren: And why do you say -- why do you say it's a mistake?
Charles Gordon: Well, (Voice Overlap) I'd like to -- I'd like to show you Your Honor that --
Earl Warren: If it's his -- if it's his duty to -- to state whether -- whether the child is a citizen or not, why do you say it's a mistake? What is there in the record --
Charles Gordon: Because the fact is --
Earl Warren: What is there in the record to indicate that?
Charles Gordon: Well, the fact is that he was not a citizen as we show -- show if Your Honor will permit me. The fact is that under the law, he had no claim for citizenship.
Earl Warren: I know but it might -- might not that go to the question of -- of whether the Government is foreclosed from -- from now claiming he isn't a citizen if he came in three months of age and the Government said that he was a citizen and he's lived here for 56 years or so, wouldn't that bear on it very materially?
Charles Gordon: Well, I -- I think it might possibly, but the answer to that is -- that's -- in some cases that have considered similar situations, court below considered it, sir. The answer to that is that the most that can happen under certain circumstances if an administrative officer makes a determination, the most that can happen is that a prima facie title is established and that title can be rebutted by a clear, unequivocal and convincing showing that that was induced by fraud or error and the courts that have considered this have said that the error encompasses error of law or error of fact. Now --
Earl Warren: -- is there anything in the -- in the record to show this was caused by fraud or --
Charles Gordon: Oh, no.
Earl Warren: -- anything like that?
Charles Gordon: No, sir. We contend that this is purely --
Earl Warren: -- is -- is there anything in the record to show except the law that time that it was a mistake?
Charles Gordon: It is an error of law in our --
Earl Warren: Error of law, very well.
Charles Gordon: Now if I may, I'd like to get to the phases of the argument dealing with whether Mr. Montana is a citizen. At the time of Mr. Montana's birth in 1906, the controlling statute was R.S. 1993. That statute provided that any child heretofore or hereafter born being both prospective and retrospective, should become a citizen only if born to an American father, provided, the father had previously resided in the United States. Now, petitioner obviously can claim no right under this statute, since his father was not a citizen of the United States. However, petitioner claims that under another section of the revised statutes, 2172, he got a right to citizenship. 2172 speaks of the children of persons who now are, or who have been citizens and confers the rights of citizenship on those people. Now, we believe that the -- the position expressed here by the petitioner is one that is completely unsupportable because it disregards not only the language and the structure of the statute itself, but also its history, its interpretation, its manifest pertinence. Now, the basic principle for the transmission of citizenship under the common law was known as the used solely. That's the principle now incorporated in the Fourteenth Amendment. The used (Inaudible), which is the principle of transmission by descent or by blood was not a common law principle. This was dependent on statutes and statutes from the beginning of the republic had made limited provision for the transmission of citizens -- citizenship. These provisions were in effect at different times. Now, the 1802 Law which has been mentioned before was a codification, in every statement of earlier laws dealing with the transmission of citizenship. In the 1802 Law, as in Section 2172 of the revised statutes, the rights of citizenship were granted to the children of persons who now are or have been citizens of the United States. In 1854, Mr. Horace Binney, who was then a noted lawyer of the era, wrote an article in which he took the position that this law was not prospective. He said, “This was a bad thing and it should be corrected by Congress.” The following year, Congress undoubtedly in response to his suggestion enacted section of the 1855 Act which is the predecessor of the Section 1993. That statute was effective as I have said heretofore or hereafter, both children heretofore born or hereafter born whose fathers are citizens of the United States. And the law also contained a condition that citizenship could not be transmitted unless the father had previously resided in the United States. Now, Section 1993 was continued, it -- as I've said, it codified the 1855 Law and then it continued in effect until 1934.
John M. Harlan II: They re-enacted 2172 though and then 1855 at the same time.
Charles Gordon: Not exactly. Not in -- not in the exact terms. There was a significant omission. The omission left out the proviso which precluded the transmission of citizenship unless the father had previously resided in the United States. Now, I would like to make one additional point before I -- I show you what the significance of that was. In 1934 when Congress amended Section 1993, Congress provided for the first time that citizenship could be transmitted by -- to a child born abroad to American citizen father or a mother. And in making this change, Congress was careful to restrict the operation of the statute to children hereafter born, thus, very clearly denoting its wish not to disturb status that was previously vested. Now, in order to succeed, petitioner must show first that the relevant provision of Section 2172, which is the second clause, was prospective. We believe that this contention depends on a number of -- of propositions which are unsupportable. In the first place, we point to the language of the statute and of course the language says, “The children of persons who now are or who have been citizens shall be citizens.” This is not prospective language, particularly in the light of the legislative history which I'll develop in a moment and it is quite significant that when Congress wished to speak for the future, it had no difficulty in selecting appropriate language. Thus, in the 1855 Law and in its successor Section 1993, Congress spoke of the children of -- heretofore or hereafter born. When Congress amended Section 1993, it spoke of the children hereafter born. Now, no comparable language appears in the second clause of RS 2172, but second and more important, Your Honors will observe that this language, the second clause, was a virtually identical restatement of the 1802 Law as we've mentioned. Yet, there was unanimous agreement that the language of the 1802 Law, the second clause, was not prospective. This was the point of view expressed by Mr. Horace Binney in his 1854 article. It was apparently also shared by Congress in enacting the 1855 Law the following year. Indeed, in the debates on the 1855 Law, Congressman Cutting, the sponsor of the bill, and other members of Congress specifically said, “We acknowledge that the 1802 Law was not prospective and that the new legislation was needed to remedy the defect in the prior law.”
Felix Frankfurter: Just as a matter of curiosity, Mr. Gordon, I haven't read the -- the congressional account. In the -- in what was said on the floor of either House, was acknowledgement made that the article in the American Law Register was by Mr. Binney, because they didn't sign? Is this --
Charles Gordon: It was not signed but it actually was a -- a reprint of a -- a publication of the previous year.
Felix Frankfurter: What I want to know is -- what I want to know is whether somebody on the floor of either House mentioned Mr. Binney's name by name.
Charles Gordon: Your Honor, I don't recall, but let me refer --
Felix Frankfurter: I'm just curiou -- legal curiosity.
Charles Gordon: No, I -- of course the Supreme Court, this Court, in two decisions specifically mentioned Mr. Binney by name has that this was a correct interpretation and that the 1855 Law was passed in order to correct this defect.
Felix Frankfurter: I have no doubt about it on basis of other materials but I just want to know --
Charles Gordon: I -- I don't recall --
Felix Frankfurter: -- if anybody in Congress saw them.
Charles Gordon: I don't recall when they specifically mentioned that.
Felix Frankfurter: Binney was a towering figure --
Charles Gordon: He was.
Felix Frankfurter: -- back in those days.
Charles Gordon: I have taken the trouble to find that out, sir.
Felix Frankfurter: Yes.
Charles Gordon: He was -- he was one of the leaders of the bar in that period. Now, as I've mentioned in this Court twice on two separate occasions, I called attention to the defect in the 1802 Law which was revealed by Mr. Binney and stated that the 1855 Law was passed to remedy this defect. The same conclusion was reached by every other lower court decision which has considered the matter and the same conclusion also was reached by Chancellor Kent in his commentaries. Chancellor Kent said that this provision is clearly not prospective. Mr. Binney said this provision indisputably is not prospective. Now, our brief mentions the 14th edition of Chancellor Kent's commentaries. Now, I've taken the trouble to search the earlier editions and find that every edition from the first edition in 1826 down through the 14th which we have cited, made exactly the same statement. This included the 12th edition which was edited by one O. W. Holmes Jr, I find and which was published in 1873, the year before the revised statutes, is -- I think is quite significant as a part of the legislative history. Now, petitioner now contends that every published interpretation of the 18 -- the revised statutes and the 1802 Law was wrong and that it is now possible to read this language as being prospective. We submit that in the face of the unanimous verdict of everybody, the verdict of the legal scholars including Chancellor Kent in 1826, Horace Binney in 1854, Justice Holmes in 1873, the verdict of the decisions including two leading expressions by this Court, the verdict of the legislative history including direct statements in the legislative history preceding the 1855 Law and another similar statement in the comprehensive study made in 1906 preceding the Citizenship Law of 1907. We submit that in the face of this unanimous verdict of everybody who has studied the subject that it is not now possible to read the language of the 1802 Law and of its restatement in 1874 as being prospective. Now, even if it could be found that the language is prospective and we've been -- this we deny, even if this could be found, we submit that petitioner still must fail, because petitioner's claim depends on a finding that 2172 intended to confer citizenship on the child born abroad to an alien father and a citizen mother. Again, we say this interpretation conflicts irreconcilably with the consistent interpretation of the statute -- of this language with the statute itself and with its legislative history. Now, comparable language is business about the children or person. This is the -- the issue of the case. Does that mean the children of the father or the mother? Comparable language was made -- was used in the 1802 Law. Now, the use of the plural at that time and in 1874 was not an accident. It reflected the common law concept of family unity with the father, the spokesman of the unity. That concept of family unity was contained in our citizenship laws until 1934. That concept was endorsed. In the leading decision of this Court in Mackenzie against Hare decided in 1915. When Congress used the word, “the children of persons” we believe it was referring to situations where both parents were citizens. Now, some authorities have construed this language a bit more liberally. Some authorities construing the first clause, not the second, there aren't any authorities taking this view under the second clause, the first clause related to the derivation of citizenship by the children of aliens who were naturalized. Some authorities say that the first clause includes situation -- provision for the transmission of citizenship through a father, a father who was naturalized. Now, we think that this perhaps is a permissible interpretation in the light of the common law concept of family unity which was then incorporated in our statutes, the father being the chief spokesman of the unit. Moreover, under our laws at that time, when an alien woman married a citizen, she automatically became a citizen. So when Congress spoke of the children of persons, if the father was a citizen, both parents automatically were citizens, but we think that no interpretation of anybody, no Court, no commentator, no legislative spokesman has every suggested that it is possible to read the language of the 1874 revised statute Section 2172 or of its predecessor in 1802 as granting citizenship to a child born abroad to a citizen mother and an alien father.
Hugo L. Black: I thought you said that while some authorities have said -- did I misunderstood what you said a moment ago.
Charles Gordon: Can I restate that sir?
Hugo L. Black: Yes, if you please.
Charles Gordon: Some authorities have said that where the father alone is a citizen and the mother maybe an alien, the father alone can transmit citizenship, but that we say is not inconsistent with the philosophy of the statutes then in effect. The father was then the dominant member of the family unit. Moreover, in addition to that under the laws then in effect, if an alien woman married an American citizen, she automatically became an American citizen, so that if you talk of a father being a citizen automatically, the mother also would be a citizen.
Felix Frankfurter: But -- but wasn't it, the fact, Mr. Gordon, that by the laws of some of the foreign country, the mother -- what is it called now, the Cable -- what --
Charles Gordon: Cable Act of 1922.
Felix Frankfurter: -- the Cable -- our Cable Act was -- came much -- was -- came much -- the objective of that and the legal consequence of that, that a woman may retain, withhold a nationality on marrying an American citizen. That was the law in -- in some of the European countries much earlier, wasn't it?
Charles Gordon: It was not our law though.
Felix Frankfurter: I'm not saying it was our law, but it raises dubious question if an English woman married an American and under -- under English laws, even if she retained her citizenship as an English woman, she might not avail what might be called a pure American citizen.
Charles Gordon: No, she might have been a dual national --
Felix Frankfurter: Yes.
Charles Gordon: -- which is not an uncommon situation as one knows it.
Felix Frankfurter: No. It might raise questions under -- under the person.
Charles Gordon: I think we‘ve -- we've had perplexing questions on citizenship on dual nationalities since we've had our first nationality law, and we still have it.
Hugo L. Black: I don't understand how if -- if anyone read the word “persons” in this to go no further than these statutes. They could say that the -- the parent of a father, was a citizen or the parent of the mother wasn't.
Charles Gordon: Well, that's the generous interpretation, sir and I think that maybe justified as I've said by the fact that the law regarded the family as a unit and the -- the father --
Hugo L. Black: But that's in -- you mean to looking -- looking at other statutes.
Charles Gordon: We're looking what they --
Hugo L. Black: Within the four corners of this statute, could that distinction be drawn?
Charles Gordon: Well, let -- let me show Your Honor the legislative history and I think this is overwhelming as to what Congress intended.
Hugo L. Black: Here I was --
Felix Frankfurter: Justice Black's question was if you don't look at anything except the words.
Hugo L. Black: My question was, if you look at the four corners of this statute, its language and nothing else, could that distinction be drawn?
Charles Gordon: No, sir.
Hugo L. Black: Well, that's the question. Where is the --
Charles Gordon: I think -- I think though if you looked at the four corners of the 1802 Act, you might draw such a distinction. The 1802 Act said, “The children born abroad to persons who are American citizens are citizens, provided, the father has previously resided in the United States.” So such a distinction might be made under the 1802 law. The 1874 law eliminated that proviso. Now, I -- I'd like to refer for a moment to the legislative history which I think is irrefutable here.
Hugo L. Black: As to elimination of the word father in the 1802 Act?
Charles Gordon: No, as to whether Congress intended to confer citizenship on a child born to an American mother and an alien father and here I think the legislative history is unmistakable.
Charles E. Whittaker: Clearly, I'm confused about this but I just not understand the 1802 Act merely in reference what you just tell me with that person.
Charles Gordon: But then if Your Honor will read a little further, you'll see there's a proviso in the 1802 Act which said, “Provided, citizenship rights shall not be sent to persons whose fathers never resided in the United States. Is that in -- in our brief? I think it's probably -- we haven't got the full statute. Your Honor look -- would look at the petitioner's brief, the 1802 Act appears in the -- as an appendix there and that proviso is in it.
Hugo L. Black: Page 28, you don't say it's 18.
John M. Harlan II: On Section 1993.
Charles Gordon: No. I'm talking about the 1802 Act.
Hugo L. Black: The 1802 Act appears on --
Charles Gordon: This is on page 18, sir. That is right.
Hugo L. Black: 18 of the petition for certiorari. Now where is the statement in the --
Charles Gordon: That's about two-thirds the way down to the statute provided that the right of citizenship shall not extend to persons whose fathers have never resided within the United States.
Hugo L. Black: Well, now why would that have been taken out?
Charles Gordon: Well, I -- this -- this -- why the proviso was eliminated? Your Honor, this I think has an explanation. This is -- gets to the crux of why there were two statutes dealing with the same subject matter. Of course, we say that it is inconceivable that Congress intended two statutes enacted at the same time containing inconsistent conditions to operate prospectively. The court below said that this -- the second clause was retained as a savings clause. Now, if the second clause was intended to apply for the future as a method of transmitting citizenship, then it undoubtedly would have continued this proviso or something similar. And that is so because in every other law dealing with the transmission of citizenship by American citizens to their children born abroad, every other law since 1790, Congress has inserted a specific proviso precluding the transmission of citizenship except where the citizen parent had previously resided in the United States. This was true in the 1790 law. It was true in the 1795, the 1802, the 1855 Law and in the revised statutes 1993, each of which said that citizenship rights could not be send unless the father had previously resided in the United States.
Hugo L. Black: The -- the -- was this law in effect at that time, the Act of 72?
Charles Gordon: No, but this is a consistent pattern of action by Congress. Congress never has provided for the transmission of citizenship to children born abroad unless the father had some tie in this country. Congress wished to prevent the transmission of citizenship by generations of persons who had never resided in the United States. That is the decision of this Court in Weedin against Chin Bow. That's very thoroughly spelled out. Congress wanted to tie it, the transmission of citizenship to persons who had been in the United States. Now, by eliminating this proviso in carrying forward the 1802 law into Section 2172, it seems to me, Congress very clearly indicated that it didn't want this law to have the effect for which petitioner contends. Because if it were to operate prospectively as a means for transmitting citizenship by parents who were not citizens in 1874, then Congress would have included a proviso saying that citizenship could not -- cannot be transmitted unless the parents has previously resided in the United States. Now, I want -- I want to get back for a moment to the legislative history. On every occasion on which this matter has been considered, the legislative history tells us that the revised statute 18 -- 2172 and its predecessor of 1802 were not intended to confer rights of citizenship to children born abroad to American mothers and alien fathers. The first such expression was in connection with the debates on the Act of 1855 and there on page 34 of our brief, we -- we quote from a statement by Congressman Cutting who is the bill's sponsor. This was read by Miss Lavin. It says that, “We haven't gone as far as England in permitting the transmission of citizenship to children born abroad to American mothers.” Now, when the next occasion arose which was 1922, in connection with the Cable Act, the Committee report which is quoted at -- at the top of page 35 of our brief said, “We are not disturbing the citizenship status of children, those born in this country take under the Constitution.” Then the committee went on to say --
Earl Warren: Before you go farther -- as I recall, counsel, she said that that -- that particular quotation that you just read referred to a subsequent section of the Act and not -- not this particular one.
Charles Gordon: No, this referred to exactly to 1993. This did not refer to 2172. This referred to the predecessor of 1993 which is the Act which we think is controlling, but I'm -- I'm calling this legislative expressions to the Court's attention because they indicate that Congress did not wish to trans -- to permit the transmission of citizenship through a mother alone at that time. The law was changed in 1934. Now in 1922 when Congress was giving to married woman additional right to determine their own citizenship, they said, “We are not disturbing the law regarding the acquisition of citizenship by the children.”
Felix Frankfurter: Where -- where is this from the report on the Cable Act?
Charles Gordon: 35 at the top of the page. Those born abroad as heretofore the Committee said, “Take the nationality of their mothers.” Then when Congress changed the law in 1934, they change it to provide that citizenship could be transmitted by the father or mother. And the Committee report which is also on page 35 says, “By the present law, citizenship by birth outside of the United States is derived only through the citizen father.” And then Congress went on to say -- the Committees went on to say, “The purpose of this Amendment is to establish complete equality between American men and American women in the matter of transmitting citizenship.” Now when Congress -- when the law was amended --
Hugo L. Black: But what happens in that law?
Charles Gordon: It said -- the law said, “Hereafter, any children hereafter born shall take citizenship through the father or the mother.”
Hugo L. Black: Was it passed?
Charles Gordon: Oh, yes. That was the Act of May 24, 1934.
Felix Frankfurter: Was -- that was part of the Cumming's nationality proposal, wasn't it?
Charles Gordon: I don't know who proposed it but it had --
Felix Frankfurter: In the nationality (Voice Overlap) --
Charles Gordon: It had a number of proposals. Yes, sir. These were only two and there were --
Felix Frankfurter: That's a part of the Comprehensive Nationality Act.
Charles Gordon: That is so. That was the -- the law which amended -- Your Honors will note, I think this might maybe of some significance to, is determining whether Congress then regarded Section 2172, the one -- the clause that we're considering as being applicable, when Congress amended the law in 1934, it amended only Section 1993. Now, what was the need of amending Section 1993, if under the law, previously in effect, either the father or the mother could transmit? Indeed, what was the need for this Court's decision in Weedin against Chin Bow, if either the father or the mother could have transmitted because the father in that case was a citizen who had not resided previously in the United States and the Court there found that citizenship could not be transmitted through such a father. Now, we think that --
Earl Warren: What does the House report to say about that Section 5 of the 1934 Act?
Charles Gordon: They both -- they both -- this was (Voice Overlap) Section -- Section 1 of the 1934. Both reports I think were identical.
Earl Warren: As I understood the -- the house report made it clear that the amendment was intended merely to state expressly whether it'd been implicit in the 1907 --
Charles Gordon: Oh no, no. That's another portion of 1934 Act, sir. That is Section 2. Section 2 relates to the children who acquire naturalization through the -- natural -- acquire citizenship through naturalization or resumption by the parent. This is Section 1 and there's no question on what Congress was doing here. It was changing the law and said, “Child born abroad hereafter to a citizen mother or a citizen father -- and the Committee report says, “We intend to establish complete equality.” Both -- both Committee said the same thing.
Earl Warren: Yes.
Charles Gordon: Now, I'd like to spend some of my few remaining moments on some of the other aspects of the case. Now, the second claim which is made here is on the Act of March 2, 1907. The Act of March 2, 1907 was one of the numbers of basic revisions on naturalization and nationality laws from time to time. It dealt primarily with expatriation and protection of citizens abroad. Section 3 of that Act provided that an American woman who married an alien, thereby lost her American citizenship. But Congress wanted you to take care of this woman in the event her marriage terminated and therefore, Congress said, “In the event her marriage is terminated, such a woman may resume her citizenship in several ways and one of the ways she could resume her citizenship was by returning to reside in the United States.” We think that also Section 5 is involved. Section 5 provided that a child born abroad of alien parents would become a citizen through the naturalization or resumption of citizenship by the mother during the child's minority. Now, we think that petitioner's attempt to derive some benefit of -- from this statute faces insurmountable obstacles. In the first place, the statute speaks of a woman who has lost her citizenship and permits such a woman to resume. Now, both sides here agree that the mother here never lost her citizenship. She was born a citizen and remains a citizen until the present time. Since there was no citizenship lost here, there was no citizenship to resume. But even more importantly, the statute speaks of a woman whose marriage has been terminated and if the marriage is terminated, the statute says, “Then the woman can resume her citizenship.” Now here, the marriage has never been terminated. The marriage was contracted in 1905 and the parties still live together, they are still husband and wife. The terms of Section 3 and Section 5 of the 1907 Act cannot come into play unless, number one, there is a loss of citizenship; number two, there is a resumption of citizenship; number three, there is a termination of the marriage which accompanies results and resumption of citizenship.
John M. Harlan II: What do you say about Attorney General Mitchell's interpretation?
Charles Gordon: We have no problem, sir. It doesn't apply here.
John M. Harlan II: Why not?
Charles Gordon: Attorney General Mitchell and -- and Judge Nordbye in the Black case, were addressing an entirely different situation. That situation was where there had been a termination of the marriage, there hadn't been a loss but there had been a termination. Now, Attorney General Mitchell said, “Now, here's an American woman who hasn't lost citizenship but her marriage in effect has been terminated, she was divorced. And Attorney General Mitchell said, ”The -- there is no doubt that the complete legal custody of the child has been given to the mother.” He says, “This is irrevocable. If it weren't irrevocable, I would've decided the same -- different way.” Now, Attorney General Mitchell said, “Now, this -- this is a -- an equitable situation. Here's a mother who hasn't lost her citizenship, her marriage is terminated and it is equitable for the child to take the same citizen -- citizenship as the mother.” But that's an entirely different case than this. The marriage has never been terminated.
John M. Harlan II: The relevancy with the termination of the marriage after that year of the statute.
Charles Gordon: The statute provides for it. The statute says that there can be an -- a resumption of citizenship only when the marriage is terminated. That's the -- the only thing that the statute was speaking of.
John M. Harlan II: Well, but in his opinion as I understand it correctly said that it was incongruous to suppose that Congress wanted to confer greater rights to the children of American women who had lost their citizenship and then resumed it, then they would've on the case of the children of American women who had never lost their citizenship.
Charles Gordon: And I agree. It is incongruous to confer greater rights on such women.
John M. Harlan II: Therefore, he's -- therefore, he said rightly or wrongly that the woman in the latter status who had never lost her citizenship, the child of such a woman should have the rights to be given to one of a woman in (Inaudible) --
Charles Gordon: But, Your Honor, the petitioner's argument turns that around. It is not giving greater rights to an alien woman, it is giving greater rights to a -- a citizen woman who has never lost his citizenship because the alien woman, in order to confer citizenship on the child, must first have terminated her marriage. And the termination of the marriage creates a situation where she is the sole parent and she thereby is properly the one who determines the citizenship of the child. But the petitioner's argument would say that even though the marriage was not terminated, even though there are two parents as a matter of law, we will give to this woman without any benefit of statute, without any expression by Congress, without any support in the Constitution, we will give to this woman what amounts to a process of naturalization. Now, we say such a -- an argument, such an interpretation gives to the American woman not inferior rights but far greater rights because it doesn't depend on a termination of the marriage. When the marriage is terminated, she is the only parent. It is right I think to keep the citizenship of the -- of the mother and the child together at that time. But at the time when these facts occurred, Congress said, “The only situation in which we want a mother to determine the citizenship of the child is when the marriage has terminated and she has resumed her citizenship.” Now --
Felix Frankfurter: In other words, are you saying what incongruity there is, is in the statute of Congress and not in any construction of it.
Charles Gordon: That is right, sir. Congress has not made any provision whether it should have made provision is another story. But Congress did and I think Congress deliberately didn't want to make a provision because at that time, Congress did not wish the mother alone to control the citizenship when there was a father and the father was an alien. I think this was deliberate.
Felix Frankfurter: Chief Justice Taft in the (Inaudible) Weedin case --
Charles Gordon: Weedin against Chin Bow.
Felix Frankfurter: Weedin case spoke of the atmosphere in which the statues must be construed. Now, the Act was Bill of 1997, this was long before woman suffrage, long before the whole change of congressional mind and judicial mind as to the status of women. And therefore, these so called incongruities, warranting Congress at all if you put them in the context of the time.
Charles Gordon: That is exactly our argument. We say it is inconceivable in the climate of those years, in the climate of 1802.
John M. Harlan II: The Attorney's General interpretation is not in reference to the 1907 Act, it was in reference to the 1934 Act and those considerations have changed.
Charles Gordon: Well, that the -- may I answer it? The 1934 Act is quite similar.
John M. Harlan II: Well, it's identical in that respect.
Charles Gordon: That's right.
John M. Harlan II: Yes.
Charles Gordon: It provides for the resumption that --
Felix Frankfurter: And he was dealing with the 1934 statute.
Felix Frankfurter: But it was broader down from the 1907 Act because of the same provision.
Charles Gordon: The same considerations apply, sir. In order for the person to acquire any right under those statutes, the mother must have been in a position when she resumes citizenship. The resumption could take place only in the case of a mother who lost or who is in a position of equal to one who had lost -- provided, the marriage was terminated and the mother was in effect the sole parent. Now, if Your Honor will read Attorney General Mitchell's opinion, Attorney General Mitchell laid very great stress on the fact that this was irrevocable. That there wasn't any question that the mother had sole custody of the child. And he said, “If there was any question about this, if the father had any reserved right to custody, I would not have held the same way.” And the reason he said that I think was in carrying out what Congress intended that a family be considered as a unit unless the unity had been destroyed and that in a situation where there was only one parent and the parent was the mother, it was proper for the mother to take the child, belong to her in determining -- along with her in determining citizenship. This is the only thing that Attorney General Mitchell decided. He did not decide that in every case, a child who was born an alien to a citizen mother would automatically become a citizen merely because the mother took a trip to the United States. He decided only that when the marriage had been terminated and when the mother had been given complete and irrevocable custody and thereby was the only parent of that child, then it was proper to hold that the child required the mother's citizenship through, in effect, a process of naturalization. We think that the 1934 and the 1907 Acts must be read similarly in this connection. Now, --
William J. Brennan, Jr.: Mr. Gordon, before you go on, I -- I know you question its relevancy, but I'd like to know the grounds on which Montana is being deported?
Charles Gordon: He is deported for having been convicted for two crimes involving moral turpitude and I'll tell Your Honor what the crimes are if you like.
William J. Brennan, Jr.: What are they?
Charles Gordon: The first was when he made a -- an application for naturalization in 1930. He lied on the question of what arrests he had suffered and he was convicted for lying in the naturalization proceeding and naturalization was denied thereafter. The second was in 1941 for assault with intent to commit murder and he was convicted and sentenced, I believe for 14 years in jail --
William J. Brennan, Jr.: Well I notice that he did not appear at the hearing before Judge Miner.
Charles Gordon: No. He -- he was out of jail by that time. He was ill.
William J. Brennan, Jr.: He was ill.
Charles Gordon: Yes, sir. Your Honor I think from -- alright, my time has expired.
Earl Warren: Miss Lavin.
Anna R. Lavin: I'd like to refer first to what Mr. Gordon refers to as the overwhelming congressional background on the Act of this before the Court in the form of 2172. I -- I'd like to just go down that because we have been impressed by how overwhelming this was. We have Mr. Grover's edition of Kent's Commentaries in 1826, 20 years after the -- after the -- an act of Mr. Binney in 1854, again, 50 years after they enact. We have this Court's two decisions to which I referred when the issue was not before the Court and that about covers it. There was nothing contemporaneous with the re-enactment in 1874. Congressman Cutting's remark I think I discussed at length at the -- in my earlier argument and I hope I distinguished them because that is not in fact what Congressman Cutting said. What he said was with relation to the Acts under the reign of Victoria in 1844 and the distinction of the natural-born citizen against a -- a manner of naturalization.
Potter Stewart: Do I understand that the only distinction you can think of between a -- naturalized citizen and a -- and a native citizen is that only the latter probably can become President of the United States of America.
Anna R. Lavin: Well, I -- the latter -- the former is also subject to divestment which they could never do with a -- a native-born citizen. Those are the only ones that occurr to me immediately.
Potter Stewart: Well, the -- and the native born citizen, this Court has held in certain circumstances, is subject to the denaturalizaiton.
Anna R. Lavin: A native-born citizen?
Potter Stewart: Expatriation, yes.
Anna R. Lavin: Oh, expatriation, of course.
Potter Stewart: The voting for example in Mexican election.
Anna R. Lavin: Of course. That again slipped my mind. Actually, the only thing that does occur to me was the -- the provision relative to holding office by a -- a native born.
Potter Stewart: Certainly, weren't that (Inaudible) --
Anna R. Lavin: And that -- that was the thing that immediate --
Potter Stewart: -- the presidency even if --
Anna R. Lavin: -- presidency --
Potter Stewart: The president, a national -- a nationalized citizen can be a senator or a vice president or something.
Anna R. Lavin: Yes. But -- of course, in the -- in the laws under Victoria, we had the problem of holding property that they referred to more completely but that does not -- to the best of my knowledge obtained in any state. We have a -- in this, I've urged upon the Court. I -- I think that in my argument, I indicated these expressions of Mr. Binney, an eminent scholar. This Court's appear it -- approbation of that expression but what I do try to urge upon this Court is that what later Congressmen might have said. What -- what scholars might have said are -- are not to be conclusive in this determination. This Court -- a -- a judicial tribunal is the only one who has the right to determine the effect of statute and that is when the proper triad case arises and that is what now is before this Court. Now, I noticed that there was practically no argument on -- addressed to the distributive except the fact that between 1855 and 1874, we had a situation where a wife took the nationality of her husband. In our brief, we have -- in our reply brief, we have taken this argument of Mr. Gordon and we put it in what I -- in what I think is its proper posture. If a -- if a man passed citizenship to his wife by the fact of the Act of 1854, then there was actually no necessity for the Act to 1855. But if we had a man passing his nationality to his wife, then we had a child who was a citizen of the United States and that wipes out the requirement of the five years residence by the father. Actually, the incongruity of the two of them is -- is obvious from that posture as well as from what Mr. Gordon urges as an incongruity in the subsistence of both statutes only in the inverse rather than in the way I suggest. I want to get to this 1907 argument, the termination quite particularly. Mr. Gordon does not seem to credit the Guest case where a -- a document, a contract between the two parties that one of them would have custody of the child was sufficient. There was no termination of that marriage, there was a -- a contractual arrangement between the parties. Also, Mr. -- the Attorney General, Mr. Mitchell, it was his expression that we must remember that custody isn't permanent despite the fact that Mr. Gordon's argument is that he would never made the -- the contention that are -- he would never have followed this decision unless custody were permanent. But Mr. Mitchell himself said, “We must recognize the custody is not always necessarily permanent. And as a matter of fact, there are cases where the father was given legal custody and the child still took the nationality of his mother. We -- in the 1934 Act though, we must remember that no termination was required. Mr. Gordon concedes the Black and -- Black decision. He concedes the opinion of Mr. Mitchell in Cole-Picard and if no termination was required under the 1934 Act, then the declaration of Kelly -- Kelly versus -- the aspect in which Kelly versus Owen was decided by this Court would make Mr. Montana a citizen. I -- I think there is -- I -- I think and I have urged in -- on the Seventh Circuit as well as this Court that the suggestion of Mr. Gordon that Mrs. Montana's testimony wasn't credible. That Mrs. Montana's testimony was not to be believed at this -- at the appeal level because she was an interested witness, does not find any basis in the record and what he asked this Court to do is to make a finding of fact. I have set out in my reply brief every utterance of the Court relative to his acceptance of that testimony. There is nothing to indicate any incongruity on the part of the trial judge. There is nothing to indicate that he discounted her testimony because of what was obviously be an interested of a mother. The -- the question of his refusal of the passport for a time has had I think a -- a reasonable corollary in the many cases that were before this Court and other courts of the United States where a foreign-born child of American citizens had tried to come into the this country by the time they reached their 16th birthday in order that they might complete their five years residence while they were still minors. That has been consistently found to estop the Government from raising the manner of not conforming to that that five year requirement. Though the children were no in here at the time and the statute required five years residence before they attain their majority, the fact that the American Consul had held up there passports was determined to be no impediment to their citizenship. Mr. Chief Justice referred to the certificate -- certificate of arrival. I think it is a reasonable inference from the record that this -- certificate of -- of arrival was founded on some determination that the certificate of arrival was actually a official document by an official officer of the United States Government and should be given some credit in that regard.
Felix Frankfurter: Would you mind --
Anna R. Lavin: Excuse me sir.
Felix Frankfurter: -- telling me -- just to my -- I ought to know but I don't. Does every alien -- does everybody who come here -- in here get a certificate on arrival?
Anna R. Lavin: I -- I -- (Voice Overlap) there is a record made at their entry but whether the -- the nature of --
Felix Frankfurter: But there is on the ship's manifest, but is there a separate document, call it certificate of arrival?
Anna R. Lavin: I don't know.
Felix Frankfurter: I'm just curious. I thought I mentioned to you --
Anna R. Lavin: I -- I'm sorry, sir. I don't know then. I'm sure Mr. Gordon would be in a better position to answer than I -- I am. I do know that this document that we have in the record --
Felix Frankfurter: Where is it?
Anna R. Lavin: -- was a -- It's in the --
Earl Warren: 37.
Felix Frankfurter: 37.
Earl Warren: 37 of the transfer brief.
Anna R. Lavin: 37 -- was obtained by means of production of documents from the Government in this -- when if their officials filed it.
Felix Frankfurter: May I ask Mr. Gordon, is that given to the entrance, anybody comes here and gets it?
Charles Gordon: No, sir. At -- at this time, there is some document which is given. At the time of the arrival of Mr. Montana with a child, the only thing that was done was -- a record was made by the immigration authorities based on the manifest.
Felix Frankfurter: Yes. (Inaudible)
Charles Gordon: But the -- no document was handed for them.
Felix Frankfurter: But they --
Charles Gordon: At the present time there isn't. They -- a registration, any registration for it which is an evidence of lawful admission, no such (Voice Overlap) --
Felix Frankfurter: What about a citizen?
Charles Gordon: A citizen gets no document.
Felix Frankfurter: He didn't get his documents.
Charles Gordon: No, there‘s merely a record made --
Felix Frankfurter: He never did. He never did, did he?
Charles Gordon: No, just a record made of his arrival as of everybody who --
Felix Frankfurter: Well, arises stronger certificate of -- what is this called?
Anna R. Lavin: Certification of arrival --
Earl Warren: Verification or --
Charles Gordon: This -- this is not the actual certificate at that time. This is a transcript of the original record which was made on a document, reviewed at the present time.
Earl Warren: You mean --
Charles Gordon: That is not --
Felix Frankfurter: This an entry on the books of so called -- of the immigration the citizen?
Charles Gordon: That is right. But this -- this is a transcript of that document.
Felix Frankfurter: Yes. But neither, he didn't enclose that they're here you take this on whatever wrong with your automobile lies.
Charles Gordon: No, no sir.
Anna R. Lavin: Thank you.