ginning provided that the nationality of a woman follows that of her husband.1 264. Foreign-born Wife of American Citizen. In 1844, a British law 2 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 This was later repealed by § 10 (1) of the Act of 1870, which lays down the broad principle that the nationality of a married woman follows that of her husband. 33 and 34 Vict., ch.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 2 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 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. 3 Kane v. McCarthy, 63 N. C. 299; Kelly v. Owen, 7 Wall. 496. 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. ❝ 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. 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.1 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.1 1 Infra, p. 599. 2 Act of March 2, 1907, § 4, 34 Stat. L. 1229, infra, p. 600. 3 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. 4 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.1 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.3 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. 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.1 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. |