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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. 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

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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.

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

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."?

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.3 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.

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.3 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. Parkerson 5 expressed the opinion that the American wife did not, under 1 Infra, § 330.

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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

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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.

2 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.

3 Mackenzie v. 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." 3

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.

212 Ibid. 7.

13 Ibid. 128.

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