In re Bauring

10 P.R. Fed. 107

Opinion

EamiutoN, Judge,

delivered tbe following opinion:

1. Reliable information came to tbe court that there were a number of persons eligible to take tbe oatb of allegiance under § 5 of tbe Jones Act of March 2, 1917, living in the island of Vieques, but that they were to a large extent people of small means and unable to expend tbe sum of about $25 needed to take them and their witnesses to and from San Juan, where this court ordinarily sits. The Jones Act, of which §§ 41 and 42 define the general duties of this court, says that “regular terms of said United States district court shall be held at San Juan v . . and also at Ponce . . . and special terms may be held at Mayaguez at such stated times as said judge may deem expedient.” [39 Stat. at L. 965, 966, chap. 145, Comp. Stat. —, §§ 3803qq, 3803r.] This, therefore, fixes the sittings of this court at those three places. The latter part of § 5 says that certain persons may “make a sworn declaration of allegiance to the United States before the United States district court for Porto Rico.” There is no question that such declaration may be made at a regular session of tbe court in San Juan or in Ponce. Can it be made in any other place, such as Vieques \ It seems to tbe court that it can. Tbe court is in session, with clerk, marshal, and other officers only at the three places named. But the taking of a sworn declaration of allegiance, while preferably to be at one of these three places, does not, strictly speaking, require a session of the court. Por instance, there would seem to he no reason why it should not he done in vacation, Congress having limited the time for such action to six months and thereby creating a special term of that length of time, if term need he considered in this connection. The point to be considered is the admission of persons having the proper qualifications as citizens by the taking of an oath. The judge of this court is such judge and has the power to administer oaths not only at San Juan, Ponce, and Mayaguez, but throughout the territorial limits of the district. If such action is not had, the probabilities are that most of the Vieques applicants would be denied the privilege of citizenship altogether.

2. The district within which this court acts is, in § 41 of the Jones Act, called “Porto Pico,” but § 1 of the act declares that “the provisions of this act shall apply to the island of Porto Pico and to the adjacent islands belonging to the United States, and waters of those islands; and the name Porto Pico as used in this act shall be held to include not only the island of that name, but all the adjacent islands as aforesaid.” [39 Stat. at L. 951, chap. 145, Comp. Stat. —, § 3803a]. Vieques has had to some extent a separate history from Porto Pico, having, it seems, been English, and it is still inhabited by many French people. The commandant at the time of the first records in 1838 was a Frenchman named Le Guillou, but he was military and civil governor under the Spanish sovereignty, and there can be no question that the island was Spanish and passed under the Treaty of Paris to the United States. This has been the uniform. action of the governments. It seems, therefore, that the court, that is to say, for this particular purpose the judge, has the right to act elsewhere than at the three places named. Accordingly it was determined to take such action at Vieques, and this has accordingly been done.

3. The case at bar is one of a natural child not recognized by the father according to the Civil Code and other laws of Porto Eico. The applicant has proved that he was bom in Porto Eico, that his mother was a subject of Great Britian, and that he is now living in Vieques, that is to say, in Porto Eico. His puta-' tive father was also a foreigner. The civil law, and in particular the Spanish law, has been very liberal in its recognition of natural children, much more so than the common law of Great Britian and her colonies. It is an historical fact that the Latin colonists mixed more freely with the natives of their colonies, and that irregular unions were more common. As there has long been a law on the subject, however, it seems impossible to extend such privileges beyond the wording of the law which has existed in Spain for centuries, that is, that where a putative father recoguizes a child on the baptismal record or by other unequivocal act, the child is considered for many purposes as his son. Escriche, Die. Raz., s. v. Hijo Natural. This even extends to the inheritance after the legitimate children. There is no such evidence of recognition, however, in the case at bar; and at the civil law as well as at the common law the applicant must be considered, so far as his father is concerned, as filius nullius.

All systems of law have necessarily recognized the physical fact of maternity; for as to the mother of a child of course there can be no question. The Jones Act, which is now being construed, does not limit the right to take the oath of allegiance to the father, but says that it applies to “any person that is bom in Porto Eico of an alien parent.” If the applicant, in the eye of the law, has no father, there can be no doubt that in the eye of the law he must be recognized nevertheless as having a mother, and in the case at bar she is an alien. Proper proof has been made of other requirements, and so the applicant will be admitted to take the oath.

It is so ordered.