of municipal law, to adopt a common rule as to nationality of origin, and to regard naturalization in a second country as having the effect of superseding the allegiance due to the country of birth. A reasonable rule in the case of a person born with dual nationality would be, as suggested in connection with the Costa Rican treaty, that such a person should be considered a citizen of the country in which he was born if he should continue to reside there after reaching his majority. $262. Absence of Nationality.

Even more anomalous than the position of the person possessing dual nationality is that of the person without any nationality, or Heimatlos as he is called in German. Such a condition occasionally arises at birth, but usually arises when a person loses or forfeits his original nationality, either by express or implied expatriation, and fails to acquire a new nationality. A person in this position cannot call upon the diplomatic protection of any state, and it is said that the anomalous situation of a German who by residence abroad for ten years, under the law of June 1, 1870, lost his German nationality, led to the enactment of the new law of 1913.3 The United States has seemingly lent its aid to the perpetuation of this unfortunate system by certain provisions of the Act of March 2, 1907. For example, the presumption of expatriation on the part of a naturalized citizen by a residence of two years in his native state or five years in any other state, may well leave such a person without any nationality.

1See Cockburn, op. cit., 186, 187. The countries which are subject to heavy emigration have always resisted this admission of the right of voluntary expatriation. This is probably the principal reason why the U. S. has been unable to conclude naturalization treaties with France, Italy, Switzerland, Turkey and Russia.

2 See Anzilotti in 13 R. G. D. I. P. (1906), 12; Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 782. It is interesting to note that Congress by Joint Resolution of July 19, 1912 (37 Stat. L. II, 1346), unconditionally admitted to American citizenship one Eugene Prince, who was born in Russia of an American father who had never been in the U. S., and hence was not a citizen under § 1993, R. S., and who was also not recognized by Russia as a Russian subject.

3 See Meyer, Th., Reichs- u. Staatsangehörigkeitsgesetz vom 22 Juli, 1913, Berlin, 1913, Einleitung, p. 3 et seq. See also the introductions to the two leading commentaries on the new German law: Cahn, W., Reichs- u. Staatsangehörigkeitsgesetz v. 22, 7, 1913, erläutert, 4th ed., Berlin, 1914, and Keller, F., und Trautmann, P., Kommentar zum . . . Gesetz v. 22, 7, 1913, München, 1914. 'Section 2 of the Act, 34 Stat. L. 1228.

Less justifiable, however, is the provision of § 3 according to which "any American woman who marries a foreigner shall take the nationality of her husband," apparently regardless of whether his national law so provides. Not only may this provision be unenforceable, but it may easily result in depriving a woman of American citizenship without conferring upon her any other. The rule stated by Field,' that "a person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a member of the nation to which he last belonged, except so far as his rights and duties within its territory, or in relation to such nation, are concerned" can hardly be considered as a recognized rule of international law.

1 Field, D. D., Outlines of an international code, 2nd ed., New York, 1876, 130. See also Morse, Citizenship, 160. Art. 20 of the Introductory Law of the German Civil Code provides that in the case of persons of no nationality, the law of the last country to which they belonged is to be applied, when their national law governs a

case.

CHAPTER IV

EFFECT OF VARIOUS LEGAL RELATIONSHIPS

MARRIED WOMEN AND WIDOWS

$263. Effect of Marriage on Citizenship.

The effect of marriage upon the political status of women is of great importance, both in municipal and in international law. It will, therefore, be desirable to consider the status of foreign-born women married to American citizens, of American-born women married to aliens, and of widows of both these classes.

Under the municipal law of the United States, prior to the Act of Feb. 10, 1855,1 marriage had no effect upon the citizenship of a woman, either to make a foreign-born woman American,2 or an Americanborn woman foreign. This view supported the common-law doctrine as to expatriation, which prevailed in the English and American courts up to the middle of the nineteenth century, to the effect that no person can by any act of his own, without the consent of the government, change allegiance.

The civil law, on the other hand, had always held strongly to the unity of the institution of the family and the supremacy of the authority of the husband and father. Continental codes, therefore, and those of practically all civil law countries have from the be1 10 Stat. L. 604, incorporated in almost identical language in R. S., § 1994.

2 Mick v. Mick (1833), 10 Wend. 379; Priest v. Cummings (1837), 16 Wend. 617; Currin v. Finn (1846), 3 Denio, 229. See also Du Bouchet v. Award of Commissioners, 2 Knapp P. C. 364. Similarly, the husband's naturalization had no effect upon the alien wife's citizenship, whether she resided in the U. S. or not. White v. White, 2 Met. (Ky.), 185, 191; Kelly v. Harrison, 2 Johns. Cas. 29. This was the rule of the common law. Countess de Conway's case, 2 Knapp, 364, 368. See also Lord Campbell in Countess de Wall's case, 12 Jurist, 348.

'Beck v. McGillis, 9 Barb. 35; Moore v. Tisdale, 5 B. Mon. 352 cited in H. Doc. 326, 59th Cong., 2nd sess., 30, 145; Shanks v. Dupont, 3 Pet. 242, 248. Note in 22 L. R. A. 148.

ginning provided that the nationality of a woman follows that of her husband.1

§ 264. Foreign-born Wife of American Citizen.

2

In 1844, a British law was enacted providing that an alien woman who married a British subject became naturalized thereby. The first legislation of the United States in regard to the political status of married women was the Act of 1855, above mentioned, which was based upon the British statute. That Act, as incorporated in the Revised Statutes,3 reads:

Any woman who is now, or may hereafter be, married to a citizen 1 See Cockburn's approval of this rule of the civil law, op. cit., 211. Alvorez states (Droit int. américain, Paris, 1910, p. 313) that in Latin-America, this is the rule only in Mexico, Costa Rica, Haiti, Peru and Guatemala. This statement is not believed to be quite accurate. There are slight variations from the general principle in a few countries. Thus, it is sometimes provided that the acquisition of the alien husband's nationality by a native woman is dependent upon her departure from national territory. Italian C. C., art. 11, § 3; Honduras, law of foreigners, arts. 5, 6. This seems also to be the law in Ecuador and Guatemala. The consent of the wife to the change of nationality by the husband, is sometimes required, e. g., Portugal, C. C., art. 22, § 1; and British Act of 1914, § 10, in next note.

In some countries, a native woman takes her alien husband's nationality only if by his law it is conferred upon her. Mexico, law of May 28, 1886, art. 2, § 4; Belgium, law of June 8, 1909, art. 11, 102 St. Pap. 182; France, art. 19, C. C., as amended by law of June 26, 1889; Italy, C. C., art. 14; Portugal, C. C., art. 22, § 4; Costa Rica, law of Dec. 21, 1886, art. 4, § 5; Venezuela, art. 19, C. C.

In many of the Latin-American countries marriage to an alien does not denationalize a native woman. This is the law in Brazil, and from the fact that the laws of the other countries, except Mexico, Costa Rica, Guatemala, Honduras, Haiti, Peru, and Venezuela are silent upon the subject, Octavio Rodriguez in 6 Rev. de l'Instit. de Dr. Comp. 307 concludes that the law in these countries is the same as the Brazilian law. The same rule appears to govern in Spain.

27 and 8 Vict. 154, ch. 66, § 16. This was later repealed by § 10 (1) of the Act of 1870, which lays down the broad principle that the nationality of a married woman follows that of her husband. 33 and 34 Vict., ch. 14, § 10 (1). This provision is retained in the British Nationality and Status of Aliens Act, 1914, 4 and 5 Geo. V, ch. 17, § 10, with the new proviso "that where a man ceases during the continuance of his marriage to be a British subject, it shall be lawful for his wife to make a declaration that she desires to retain British nationality and thereupon she shall be deemed to remain a British subject." See Piggott, F. T., Nationality, London, 1906, I, 57-61.

* Section 1994. The slight change in language does not affect the substance of the Act.

of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen."

The effect of this statute is that every alien woman who marries a citizen becomes perforce herself a citizen, without the formality of naturalization and regardless of her wish in that respect.1

Certain matters connected with the statute require brief explanation. The first is as to the meaning of the word "married." In order to confer citizenship must the husband be a citizen at the time of the marriage, or does his subsequent naturalization have the same effect? It has been held that the word refers to the status of being married to a citizen, and not to the time when the marriage is celebrated, so that whenever citizenship of the husband and the state of marriage concur, regardless of the priority of either, the woman is "married to a citizen," and endowed with citizenship.4

5

The second question relates to the necessity of the wife's residence in the United States as a condition of citizenship. A practically uniform line of decisions has established the rule that the wife's residence in the United States is not necessary to confer citizenship upon her, either at any time during the marriage or after the death of the husband. Several secretaries of State, however, have been inclined not to follow the decisions of our municipal courts, and have held that naturalization in the United States had no international effect on the allegiance of the wife while she continues to reside in the country of origin. Nevertheless, the use of good offices has been authorized to assist the emigration of such foreign-born wives with a view to

1 Kane v. McCarthy, 63 N. C. 299, 302; Kelly v. Owen, 7 Wall. (74 U. S.), 496, and cases cited in H. Doc. 326, op. cit., 31 and 146-150.

2 Van Dyne, Citizenship, 121.

Kane v. McCarthy, 63 N. C. 299; Kelly v. Owen, 7 Wall. 496.

414 Op. Atty. Gen. 406 (Williams); Renner v. Müller, 57 How. Pr. 229. 'Kane v. McCarthy, 63 N. C. 299; Ware v. Wisner, 50 Fed. 310; U. S. ex rel. Nicola and Gendering v. Williams, 184 Fed. 322, and other cases cited by Van Dyne, op. cit., 124, and by Moore's Dig. III, § 410. See also 14 Op. Atty. Gen. 402, 27 Op. Atty. Gen. 507 (Wickersham), reviews the cases.

6

Moore's Dig. III, § 416; Van Dyne, Naturalization, 234-238. The view of the Department is correct in international law, provided that the country of origin asserts a conflicting claim to the allegiance of the married woman, but not if it admits that her citizenship follows that of her husband.