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.5 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.

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

4 33 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

1 1 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.

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. 24852486; Giacopini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 767.

band's national country, citizenship during marriage has been held to continue unchanged after widowhood. If, however, as a widow she continues her domicil in or returns permanently to her native country, under whose law her original nationality reverts, international commissions have almost uniformly held that not the nationality of her deceased husband (which can have no obligatory exterritorial effect), but the law of her native country and actual and continued domicil governs her citizenship.2

§ 269. Citizenship at Birth.

CHILDREN

It is not within the purview of this work to discuss the municipal law of citizenship. Nevertheless, inasmuch as the international aspects of citizenship are often necessarily involved in the matter of diplomatic protection, it seems desirable briefly to notice some of the principal features connected with the acquisition of American citizenship and title to protection.

Citizenship is acquired by birth or naturalization.

Citizenship

by birth may be acquired either by birth in the United States or by birth abroad to American citizens.3 The effects of a conflict with the

1 Brand (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2487, Hale's Rep. 18; Bowie, ibid., Moore's Arb. 2486, Hale, 17.

2 The majority of the British-American commission of 1871 held that the national character of the widow acquired by marriage remained unchanged, regardless of domicil, apparently. Calderwood (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2485, Hale's Rep. 18. Mr. Frazer, American commissioner, dissented in this case, in which a widow of American origin had always remained domiciled in the U. S. Mr. Frazer believed that in such case her national character reverted. It must be remembered that in 1871, the U. S. had no law providing for readmission to American citizenship of one who had become an alien through her marriage. Ralston, Umpire, disapproved of the Calderwood decision in Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 717. Venezuela, in which many of the cases have arisen, has for years had a law by which the Venezuelan citizenship of the native domiciled widow of an alien reverts. In support of the principle in the text see de Hammer and de Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2456, 2460-2461; Willett (U. S.) v. Venezuela, ibid. 2254 (dictum, claim disallowed as widow; but allowed as administratrix); Massiani (France) v. Venezuela, Feb. 19, 1902, S. Doc. 533, 59th Cong., 1st sess., 211; Stevenson (Gt. Brit.) v. U. S., Feb. 13, 1903, Ralston, 444, 445; Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 716, 717; Miliani (Italy) v. Venezuela, ibid. 760; Poggioli (Italy) v. Venezuela, ibid. 866.

3 See Van Dyne, Citizenship, Rochester, 1904; Wharton, § 183 et seq., Moore's

law of other countries by which dual nationality ensues have already been, to some extent, considered.1

According to the civil rights Act of April 9, 1866,2 "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States," and according to the Fourteenth Amendment to the Constitution, adopted in 1868, "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." These two definitions appear to be declaratory of the common law. Yet on several occasions the courts and the Department of State appear to have misinterpreted the clauses "not subject to any foreign power" and "subject to the jurisdiction" by construing them so as to exclude from citizenship the children born in this country of alien parents, according to whose national law their children became subjects jure sanguinis. The uniform construction of the law at the present time confers citizenship upon all persons (not tribal Indians) born in the United States, even of aliens, permanently or temporarily here resident, and interprets the clause "subject to the jurisdiction," as excluding merely children born in places enjoying exterritoriality, such as foreign legations or public vessels.5

4

As has been observed, when a child born in this country of alien parents is taken abroad at an early age to the country of his parents, by whose national law he is deemed a subject jure sanguinis, and he continues there to reside, a right of election of nationality arises at Dig. III, §§ 373-374; Report of Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess. 73-79.

1 Supra, § 253 et seq.

2 R. S., § 1992.

Dicta in Slaughter-House Cases, 16 Wall. 73, and in Elk v. Wilkins, 112 U. S. 99, briefly discussed by Van Dyne, op. cit., 12-15. See also Hausding's case, For. Rel., 1885, 394, and Greisser's case, For. Rel., 1885, 814. An account of the development of the American law of citizenship by birth in the U. S. is given by Van Dyne, 3 et seq.

Lynch v. Clark, 1 Sandf. Ch. 583; McCreery v. Somerville, 9 Wheat. 354; In re Look Tin Sing, 10 Sawyer, 353, 21 Fed. 905, and the great case of U. S. v. Wong Kim Ark (1898), 169 U. S. 649. See Report of Citizenship Board, 73-74; Van Dyne, 17-24; and Moore's Dig. III, 280.

5 Geofroy v. Riggs, 133 U. S. 258, 264; Act'g Sec'y Wharton in For. Rel., 1891, 21.

majority. By failing to manifest his election of American citizenship, and by continuing to reside abroad after majority, he loses whatever right to American protection he may have had during minority. If no question of dual nationality arises, it would seem that the mere fact of long-continued residence abroad would not deprive him of his American citizenship or protection. It is quite probable, however, that upon return to this country even a considerable time after majority, he would be deemed an American citizen in this country.

§ 270. Foreign-born Children of American Citizens.

Citizenship is also conferred, at birth, upon children

"born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof . . . but the rights of citizenship shall not descend to children whose fathers never resided in the United States." 2

There are several conditions necessary to complete title to American citizenship under this statute. First, the father must have been a citizen at the birth of the child. If, before the birth of the child, his citizenship was renounced or abandoned, or if he in any way expatriated himself, the child is born an alien. If, however, the expatriation of the father occurs after the birth of the child, it has been held that the child is not thereby irrevocably deprived of American citizenship, but that he may, upon attaining majority, revive his inchoate right to American citizenship by returning to the United States, thus manifesting his election of American citizenship. Notwithstanding the repeated assertion of the Department that a minor is incompetent to elect nationality, it is certain that by returning to the United States during minority, the child would be regarded by our courts as an

1

1 Supra, § 259. See also H. Doc. 326, 59th Cong., 2nd sess., 74-76.

2 R. S., § 1993, H. Doc. 326, 59th Cong., 2nd sess., 77-80 and American decisions there cited. Van Dyne, Citizenship, 32-49; Moore's Dig. III, §§ 374, 426. The posthumous child is also held to be an American citizen. Rosen's case, 1911.

14 Op. Atty. Gen. 295, and infra, § 319. See also Warren-Lippit's case, For. Rel. 1910, 71, 76.

4 Supra, § 259. It would seem that a widowed mother cannot, without the approval of the court of the child's domicil, change the domicil and nationality of her minor child. Sec'y Bayard to Mr. Liebermann, July 9, 1886, Moore's Dig. 541, citing von Bar and Foelix, and Lamar v. Micou, 112 U. S. 542.