1

joining their American-resident husbands. It has, moreover, been the practice of the Department of State to refuse a passport to a foreignborn widow of an American citizen who has never been in the United States and who has no intention of coming here to reside. The Act of March 2, 1907 2 has modified the effect of these rulings by making the retention of American citizenship by a foreign-born non-resident widow of an American citizen dependent upon her registration of citizenship before a United States consul within one year after the termination of the marriage.

It must, of course, be remembered that the rule conferring American citizenship upon the non-resident wife of an American citizen has no obligatory effect in foreign countries, so that the United States could not impose its citizenship and protection upon such non-resident woman against a conflicting claim of citizenship on the part of her native country.3

A third matter of importance relates to the meaning of the clause "who might herself be lawfully naturalized." Prior to the Immigration Act of 1907 it had been held on several occasions that these words refer to the class or race that might be lawfully naturalized, and compliance with the other conditions of the naturalization laws, such as character, residence, etc., was not required. That is to say, the terms of the statute apply to "free white women" (or those of African nativity, under the Act of July 14, 1870, or an Indian under the Act of August 9, 1888) and exclude Chinese, Japanese and other women of races which cannot become naturalized under the laws of the United States.4

1 Infra, p. 599.

2 Act of March 2, 1907, § 4, 34 Stat. L. 1229, infra, p. 600.

13 Op. Atty. Gen. 128 (Hoar), Sec'y of State Foster to Mr. Thompson, Feb. 9, 1893, For. Rel., 1893, 598; Moore's Dig. III, § 416. Sec'y Olney expressed the view that the naturalization of a Turk does not naturalize his Turkish wife, resident in Turkey and never in the U. S. S. Doc. 83, 54th Cong., 1st sess., For. Rel., 1895, II, 1471-1473; Van Dyne, Naturalization, 235-238. As already observed, this view is contrary to the decisions of the courts. Provided the woman is denationalized in her native state by marriage to an alien, as is the case in Turkey, no conflict of laws arises, and there seems no reason not to endow her with her husband's nationality. See U. S. ex. rel Nicola v. Williams, 173 Fed. 626, affirmed, 184 Fed. 322; Mr. Fish, Sec'y of State, to Mr. Jewell, June 9, 1874, Moore's Dig. III, 457, 461.

Burton v. Burton, 26 Howard Pr. 474; Kelly v. Owen, 7 Wall. 496; Leonard v

Under the Immigration Act of Feb. 20, 1907 certain classes of aliens, among others, those having certain contagious diseases, are excluded from the United States. The question has been presented to the courts whether the provisions of the Immigration Act apply to the foreign-born wives of citizens of the United States, or whether, as citizens, they must be admitted under any circumstances. The decisions have been conflicting. In two cases it has been held that it was no part of the intended policy of § 1994 to annul or override the immigration laws so as to authorize the admission into the country of the wife of a naturalized alien not otherwise entitled to enter. The opinion was expressed, with reference to the clause "who might herself be lawfully naturalized," that if the woman belonged to a class of aliens forbidden by law to enter or to remain, it cannot be said that she is capable of being lawfully naturalized.

In other cases, however, marriage of an alien woman to an American citizen has been held to operate as a bar to the application of the provisions for exclusion and deportation under the Immigration Act, § 1994 being regarded as unaffected by that Act.2

The Department of State usually extends its diplomatic protection to the non-resident foreign-born wife of a native American citizen. In the case of an American citizen going abroad, in company with his wife, it is the practice of the Department in issuing a passport, to include after the name of the applicant the phrase "accompanied by his wife." Until recently, it was the custom to omit this phrase when the applicant's wife was a Japanese or Chinese woman. It is the practice of the immigration authorities to admit such women upon the presentation of a certificate from a United States consular officer stating that they are married to American citizens. As the reference. Grant, 5 Fed. 11 and other decisions cited by Van Dyne, op. cit., 120-121; For. Rel., 1903, 44-45. Claim of Mrs. Coe, a Samoan widow of American citizen, v. U. S., Report of Jos. R. Baker to Sec'y of State, H. Doc. 1257, 62nd Cong., 3rd sess., 17. 1 In re Rustigian (1908), 165 Fed. 980, 982 (appears, however, to be dictum); Ex parte Kaprielian (1910), 188 Fed. 694.

2 U. S. ex rel. Nicola v. Williams, 173 Fed. 626, aff. 184 Fed. 322; Hopkins v. Fachant, 130 Fed. 839, 65 C. C. A. 1 (see note at p. 5); 27 Op. Atty. Gen. 507520 (Wickersham), in which the cases are discussed and the Rustigian opinion criticized.

3 See circular instruction of Jan. 18, 1908.

to the wife in the passport is not a certificate or statement of her citizenship, the Department has decided no longer to omit the phrase above mentioned in the case of Japanese or Chinese wives of American citi

zens.

In the case of the non-resident wife of a person who becomes naturalized, the Department has held on numerous occasions that naturalization had no international effect on the allegiance of the wife while she continues to reside in the country of origin. Where the native country, however, recognizes the American naturalization of the husband as a valid change of allegiance, and provides, as is generally the case, that a woman follows the nationality of her husband, there seems no reason for denying American citizenship to the non-resident foreignborn wife of a naturalized citizen, thus following the decisions of our municipal courts. In recent years, indeed, it appears that the Department has freely issued passports to the foreign-born non-resident wives of American citizens, without inquiry into the recognition of their American citizenship by the country of residence. But even where formal protection of the absent family of a naturalized citizen has been otherwise denied, the Department has not hesitated to instruct its diplomatic representatives to use their good offices to procure permission for and to assist the emigration of such persons to join the husband and father in the United States. This informal assistance has been extended frequently in Turkey.2

§ 265. Foreign-born Widow of American Citizen.

A married woman, as a general rule, takes her husband's nationality and domicil. Upon his death, such nationality and domicil adhere to her until she abjures the one and abandons the other. The foreignborn widow of an American citizen may, after the husband's death, revert to her original citizenship or retain her American citizenship.3 In determining the right of such a widow to the continued protection

1 Moore's Dig. III, § 416; Van Dyne, Naturalization, 235-238. As already observed, this seems directly contrary to the decisions of American courts and opinions of Attorneys General, above cited. In the case of non-resident children, the ruling is in accordance with § 2172, R. S., supra, p. 459.

2 Moore's Dig. III, § 418.

3 Ibid., § 411; infra, § 600.

of the United States, the Department, even before the Act of March 2, 1907, laid much emphasis upon the matter of her election of citizenship. In establishing her election, the place of her domicil was deemed of prime importance. If, after the death of her husband, she continued a previous residence in, or if abroad, came to the United States, her American citizenship was construed as continuing even after widowhood, and she was fully protected as an American citizen. The United States has even resisted the claim of her native country to her citizenship, so long as the widow remained in the United States.1

On the other hand, if such a widow resided abroad and had no intention of coming to the United States, protection was usually refused.2 Where, for example, a foreign-born alien woman, married abroad to an American citizen, and both during and after the termination of the marriage (by death or divorce) continued to reside in her native country, the Department has considered itself as not warranted in extending diplomatic protection to her.3 When she thereby resumed her original nationality in the country of her origin, the United States, under well-established principles, could not protect her in the country of her birth and continued domicil. In line with these views, the Department has held that an alien woman who married an American citizen and secured a divorce from him in the United States and then re

1 Mr. Adee, Ass't Sec'y of State, to Mr. Knagenhjelm, Aug. 21, 1895, Moore's Dig. III, 458 (a divorcee of a naturalized citizen).

2 Moore's Dig. III, § 411. The occasional exceptions occurred in cases where the foreign residence was in an extraterritorial country, or where her original nationality did not revert according to the law of her native country, so that her continued foreign residence was not inconsistent with American citizenship. See Act'g Sec'y Uhl in For. Rel., 1894, 139, and Sec'y Hay to Mr. Choate, Jan. 14, 1901, Moore's Dig. III, 459.

3 Mr. Evarts, Sec'y of State, to Mr. Marced de la Rodia, June 21, 1879, Moore's Dig. III, 458.

4 Mr. Gresham, Sec'y of State, to Mr. Baker, Jan. 24, 1894, For. Rel., 1894, 460. An exception appears to have been made in the case of Mrs. Groce, a native Nicaraguan, and widow of an American citizen. Having been always domiciled in Nicaragua, she recovered Nicaraguan nationality on widowhood. The U. S. nevertheless demanded from Nicaragua $10,000 indemnity for the murder of Mr. Groce, on behalf of the widow and children, also native Nicaraguans. The U. S. in the meantime advanced the widow $60 per month for the support of the family, but reduced this to $50 when the widow remarried. The original claim for indemnity, however, was not reduced.

turns to her native country to reside must be deemed to have abandoned the citizenship acquired by marriage and to have intended to adopt her native allegiance.1

This practice of the Department has received statutory sanction, with slight modifications, by the Act of March 2, 1907. This Act provides that

"any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation." 2

It has been held by the Department that this section cannot be applied retroactively. Moreover, with respect to non-resident widows, the provision for consular registration for the purpose of retaining American citizenship would appear to lay down a procedure which is optional with the individual and not mandatory, and that other methods of retaining citizenship are not excluded by the words of the Act. Thus, by returning at once to the United States to reside the woman would, it seems, clearly manifest her election, without any consular registration. Again, it would seem that registration in legations, which is allowed for many purposes connected with citizenship, might be acceptable as an election of citizenship. Moreover, it has

1 Case of Mrs. Weiss, Mr. Bayard, Sec'y of State, to Mr. Winchester, March 19, 1888, For. Rel., 1888, II, 1531; Case of Mrs. Abeldt-Fricker, Mr. Root, Sec'y of State, to the Swiss Minister, June 2, 1906, For. Rel., 1906, 1365; Case of Mrs. I. Mathias, Act'g Sec'y Bacon to Mr. Hill, Jan. 28, 1909, For. Rel., 1909, 273.

2 Act of March 2, 1907, § 4, 34 Stat. L. 1229. The words "as such" are not well used, although the intention of the framers of the Act is probably clear. Under British law the nationality of the marriage state continues after widowhood. This is specifically provided in the British Nationality and Status of Aliens Act, 1914, § 11. The Act of 1870 mentioned only British women, the widows of aliens. Piggott, op. cit., 61.

3 In the Circular Instruction of April 19, 1907 (For. Rel., 1907, 10), in which the Executive order of April 6, 1907 is quoted, the procedure for proof of citizenship and registration are set forth. The Circular states that the woman "must, within one year. . . register with an American consular officer." This is a departure from the terms of the statute; the practice of the Department has not considered the requirement mandatory.