been the practice of the Department to allow the widows of American citizens, in some cases, to register after the expiration of the one year mentioned in the statute. Where an alien-born widow or divorced wife of an American citizen has not come to the United States or registered her intention to retain American citizenship as provided by the Act, or where, after the termination of the marriage, she left the United States, it would seem that she should be subject to the same presumption of expatriation which applies to any other naturalized citizen under § 2 of the Act of March 2, 1907.1

§ 266. American-born Wife of an Alien.

The question as to whether an American woman who marries a foreigner becomes herself an alien has been before the courts on several occasions, with results which can hardly be considered as satisfactory. It has already been observed 2 that at common law a native woman did not lose her citizenship by marriage to an alien. In view of the fact that foreign women did not, prior to 1855, become American citizens by marriage to Americans, and in view of the then existing theory as to the impossibility of voluntary expatriation without governmental consent, it is not surprising that the decisions of the first half of the nineteenth century held that an American-born woman did not lose her American citizenship by marriage to an alien. Since 1890, several cases have again called the matter into question. Until the Act of 1907, the courts inclined to the view that if the native woman married a non-resident alien, she is to be deemed an alien provided there be "that withdrawal from her native country or equivalent act expressive of her election to renounce her former citizenship as a consequence of her marriage." 4 Where, however, the alien was a resident and the matrimonial domicil was always in the United States, which the woman never left, a federal court in the case of Comitis v. Parkerexpressed the opinion that the American wife did not, under 1 Infra, § 330.

son

5

2 Supra, p. 593.

Shanks v. Dupont (1830), 3 Peters, 242; Beck v. McGillis (1850), 9 Barb. 35. See H. Doc. 326, 59th Cong., 2nd sess., 150-151. See also Van Dyne, op. cit., § 55. 4 Ruckgaber v. Moore (1900), 104 Fed. 947, aff. in 114 Fed. 1020. See also Jennes or Jenns v. Landes (1897), 84 Fed. 73; 85 Fed. 801.

"Comitis v. Parkerson (1893), 56 Fed. 556, and note in 22 L. R. A. 148; H. Doc.

these circumstances, lose her American citizenship. In this case, the court disapproved, while distinguishing, an earlier federal decision of Mr. Justice Brown,1 in which he had held that an alien woman who had once become an American citizen by marriage, which marriage is subsequently dissolved, may resume her alienage by marriage to an alien-in the case at bar, a native of her original country.

The many possibilities of dual allegiance created by a ruling such as that in the case of Comitis v. Parkerson, lend some weight to the view that the decision in the case of Pequignot v. Detroit is the sounder of the two, and time has apparently confirmed that view. By the Act of March 2, 1907, Congress has provided "that any American woman who marries a foreigner shall take the nationality of her husband."2

The Supreme Court of California in a recent decision held that by such a marriage an American woman ceased to be a citizen of the United States, whether she intended that result or not, and notwithstanding the fact that she was married in this country to an alien permanently here resident and that both she and he continued here to reside. The decision is, however, open to several questions: is it opposed to § 1 of the Fourteenth Amendment in depriving a native citizen of citizenship; did the Act of 1907 intend to expatriate a native woman who had never left the United States; has Congress the power to

326, op. cit., 150. See also Wallenburg v. Mo. Pac. Ry. Co. (1908), 159 Fed. 217. It seems that the Act of 1907 was not called to the court's attention in this case.

1 Pequignot v. Detroit (1883), 16 Fed. 211. See also H. Doc. 326, op. cit., 152. Justice Brown, in a well-reasoned opinion, considered Shanks v. Dupont, 3 Pet. 242, as no longer binding, the reasons on which that decision was based-the impossibility of voluntary expatriation, and the continued alienage of an alien woman who marries a citizen-having ceased to exist. Justice Brown's decision is squarely contrary to that of Sol. Gen. Phillips in Mrs. D'Ambrogia's case, 15 Op. Atty. Gen. 599 (cited with approval in Kreitz v. Behrensmeyer, 1888, 125 Ill. 141, 198) in which, relying upon Shanks v. Dupont, he held that marriage of an alien woman to a citizen conferred upon her a permanent status of citizenship, not defeasible by her second marriage to a resident alien.

* Act of March 2, 1907, § 3. Such a provision has been in force in England since 1870. 33 and 34 Vict., ch. 14, § 10 (1). It is reincorporated in the British Act of 1914, § 10, not without vigorous opposition from various members. See Parliamentary Debates, July 29, 1914, col. 1461, 1487 et seq.

Mackenzie r. Hare (1913), 165 Cal. 776, 783.

impute a foreign nationality to a native woman marrying an alien, and especially, assuming that the husband's national state does not make her a citizen by the marriage, can Congress thus deprive a native citizen of all nationality; does the Act of 1907 relate to marriages concluded prior to its enactment? Some or all of these questions will undoubtedly be passed upon by the United States Supreme Court in the appeal which has been noted from the decision of the California court.

Between 1862 and 1869 different Attorneys General of the United States expressed their opinions upon the effect of the marriage of an American woman to a foreigner. In the case of Mrs. Preto, Mr. Bates held that the marriage in this country of an American woman to a Spanish subject and their subsequent residence in Spain until his death, did not divest her of American citizenship. On the other hand, Attorney General Stanbery held that the marriage of an American girl to a French subject in France, where she had always been domiciled, conferred upon her French nationality, and she was not to be treated as a citizen of the United States.2 Attorney General Hoar concurred in this opinion so far as it had reference to the internal revenue act (subjecting citizens abroad to an income tax), but declined to express an opinion as to whether a citizen by birth, marrying a Frenchman, "is not after such a marriage a citizen of the United States in a qualified sense.'

The rulings of the State Department prior to the Act of 1907 have not been entirely consistent. While recognizing the fact that in strict law, an American woman did not lose her American citizenship by marrying a foreigner, nor suffer the disabilities of alienage so far as property rights were concerned, nevertheless when she was residing abroad and had by her marriage, in contemplation of the law of her husband's country, acquired his citizenship, an American passport and protection were refused her. Her citizenship during coverture was held not to be completely divested but to be in abeyance only, and susceptible of revival after widowhood, "by her return to the

1 10 Op. Atty. Gen. 321.

2 12 Ibid. 7.

13 Ibid. 128.

jurisdiction and allegiance of the United States." 1 As a practical matter, American women married to aliens very rarely received the diplomatic protection of the United States abroad.2

§ 267. American-born Widow of an Alien.

Upon the termination of the marital relation, however, by death or divorce, her right to revert to American citizenship was freely admitted. If a non-resident American-born widow or divorced wife of an alien gave evidence of her intention to resume her residence and citizenship in the United States, or if, having been resident in the United States, she continued here to reside, a passport was issued and protection extended to her as an American citizen.3

Section 3 of the Act of March 2, 1907, first gave statutory expression in the United States to the principle that "any American woman who marries a foreigner shall take the nationality of her husband." This rule, which follows the British law, also adheres to its principal defect, in that it appears to ignore the law of the country to which an alien who marries an American woman belongs. If his national law should not endow her with his citizenship, a peculiar case of no nationality would arise.

Section 3 of the Act of March 2, 1907 provides further:

"At the termination of the marital relation [the American woman who marries a foreigner] may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein."

1 Mr. Blaine, Sec'y of State, to Mr. Phelps, Feb. 1, 1890, For. Rel., 1890, 301. (Case of Mrs. Heisinger.)

2 See the extracts from For. Rel., and other papers quoted in Moore's Dig. III, 450-454, and Van Dyne, Citizenship, 133–138.

Moore's Dig. III, § 409. See also Act'g Sec'y Bacon to Mr. Clay, Jan. 26, 1906, For. Rel., 1906, 1370.

433 and 34 Vict., ch. 14, § 10 (1); reincorporated in 4 and 5 Geo. V, ch. 17, § 10, with the proviso noted, supra, p. 594.

The nationality laws of some foreign countries take account of this contingency by a proviso, e. g., art. 11 of the Belgian law of June 8, 1909; art. 2, § 4 of the Mexican law of May 28, 1886, and supra, p. 594, note 1.

See also Circular Instruction of April 19, 1907, Registration of women who desire to resume or retain American citizenship, For. Rel., 1907, 10.

In contrast to the liberal interpretation given to §4 of the Act, it has been held that the American-born widow of an alien, according to 3, must register within a year at an American consulate, and that the period for registration cannot be extended beyond the year. She may, of course, at any time resume her American citizenship by coming to the United States permanently to reside.1 If residing abroad after the lapse of the year allowed for registration, she would not be protected as an American citizen. A marriage is considered as terminated by death or divorce only, a mere separation not having this effect.2

§ 268. Decisions of International Tribunals of Arbitration.

International commissions, with practical uniformity have held that the nationality of a married woman follows that of her husband in all cases, irrespective of domicil.3

A distinction has, however, been generally made in the case of widows. If the domicil of the wife and widow continue to be that of her hus

By the British Act of 1870 (33 and 34 Vict., ch. 14, § 10, 2), the widow may resume British nationality by going through a process of repatriation, which is practically identical with naturalization. Piggott, op. cit., 61-62. This provision appears to be omitted from the British Nationality and Status of Aliens Act, 1914. In the debates, the Secretary of State, Harcourt, stated that by regulation the government would enable a widow to resume her nationality or rather claim new naturalization, counting her residence in Great Britain before marriage in the five-year residence period. Debates, July 29, 1914, col. 1461 et seq.

2 Dictum of Act'g Sec'y Bacon, For. Rel., 1909, 273.

3 Brand (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2487 (notwithstanding attempt, by certain registration, to assert her original nationality); Tooraen, ibid. 2486, Hale's Rep. 18; Bowie, ibid. 2485, Hale's Rep. 17; Grayson (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 19; Lebret (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2488, 2492. (All cases of alien women married to American citizens whose claims against the U. S. in the character of aliens were dismissed.) See also Biencourt (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2483 (dictum by Wadsworth, Amer. com., in which it was said that by marriage in U. S. to an alien, an American woman did not take her husband's nationality); Bertherand (U. S.) v. Mexico, ibid. 2485; Maxan (U. S.) v. Mexico, ibid. 2485; Young (U. S.) v. Mexico, ibid. 1353. (In these cases, Biencourt's claim being allowed on another ground, American women married to aliens were held not to be American citizens, and their claims as such were disallowed. See also in support of the general rule, Lizardi (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2483; Calderwood (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2485– 2486; Giacopini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 767.