At the termination of the marital relation she 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 Thus the termination of the marital relation, whether by the death of the husband or by divorce, does not in itself effect a reversion of nationality, but simply capacitates the woman, upon compliance with the conditions prescribed, to resume her former American citizenship. That such resumption, in order to become the natural consequence of the termination of the marital relation, is conditioned upon the return to reside in, or of continued residence in the United States, is a reasonable provision, in harmony with the position taken by the Department of State. That resumption may be effected

versy.

sity, in purely domestic policy; it has greater purpose and, it may be, necessity, in international policy. And this was the dictate of the act in controIt may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. This

is no arbitrary act of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid but demanded." (311-312.)

See, also, In re Rionda, 164 Fed. 368; United States v. Cohen, 179 Fed. 834; Techt v. Hughes, 128 N. E. 185 (New York).

Concerning the divergent opinions expressed in the United States prior to the enactment of this law, respecting the effect of marriage to a foreigner upon the nationality of an American woman, see documents in Moore, Dig., III, 448-454; Van Dyne, Naturalization, 242-255. See, also, Thornton, Umpire, in M. J. de Lizardi case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 2483; same Umpire, in case of Heirs of Felix Maxan, before same commission, id., 2485.

See Fred K. Nielsen, "Some Vexatious Questions Relating to Nationality," Columbia Law Rev., XX, 840.

The language of the text is that of Sec. 3, Act of March 2, 1907, 34 Stat. 1228.

For cases arising prior to the Act of 1907, see Documents in Moore, Dig., III, 454-456; especially the Case of Nellie Grant Sartoris, daughter of President Grant, who had married a British subject, had resided in England until his death in 1896, and was by joint resolution of Congress of May 18, 1898, 30 Stat. 1496, "on her own application, unconditionally readmitted to the character and privileges of a citizen of the United States", pursuant to Art. III of the Naturalization Convention with Great Britain of May 13, 1870. Malloy's Treaties, I, 692.

2 Mr. Bacon, Acting Secy. of State, to Mr. Clay, Minister to Switzerland, Jan. 26, 1906, For. Rel. 1906, II, 1371; Mr. Root, Secy. of State, to Mr. Vogel, Swiss Minister, June 2, 1906, in which he declared: "Under the practice of the Department of State a widow or a woman who has obtained an absolute divorce, being an American citizen and who has married an alien, must return to the United States, or must have her residence here in order to have her American citizenship revert on becoming femme sole." Id., II, 1365.

See, also, opinion of Plumley, Umpire, in the Stevenson Case, British-Venezuelan Commission, 1903, Ralston's Report, 442, 453. Compare Case of

MARRIAGE OF ALIEN WOMEN TO AMERICANS [§ 366

also, in case of absence from the United States, by formal election manifested through registration with a consul, is believed to be a wise provision.1

(2)

366. Marriage of Alien Women to American Citizens. Reversion of Nationality.

According to the existing law of the United States: "any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen." 2 The law is, moreover, deemed applicable to a woman who is married to an alien who later himself becomes naturalized.3

By virtue of the Act of March 2, 1907, 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

Martha M. Calderwood, No. 360, American and British Claims Commission, treaty of May 8, 1871, Moore, Arbitrations, 2485-2486; also comment on this and other cases in Hale's Report, 17, Moore, Arbitrations, III, 2486.

1 Following an executive order of April 6, 1907, Mr. Root, Secy. of State, on April 19, 1907, issued circular instructions to American diplomatic and consular officers concerning the "Registration of Women Who Desire to Resume or Retain American Citizenship", announcing a form of registration to be used, according to which a woman is obliged to make affidavit that she is "temporarily" residing abroad, that within a definite period, to be named by herself, she intends to return to the United States, with the intention also of there residing and of performing the duties of an American citizen. For. Rel. 1907, I, 10-13. The inquiry suggests itself whether the foregoing requirements, however wise in respect to policy, do not exceed the requirements of the statute.

2 Rev. Stat. § 1994. Concerning the application of the statute, see documents cited in Moore, Dig., III, 456-458; also Low Wah Suey v. Backus, 225 U. S. 460, 473-474; In re Nicola, 184 Fed. 322; Sprung v. Morton, 182 Fed. 330; United States v. Williams, 173 Fed. 626; Opinion of Mr. Wickersham, Atty.-Gen., respecting case of Nazara Gossin, 28 Ops. Attys.-Gen., 504; also Persons Capable of Naturalization as American Citizens, supra, § 354.

3 Kelly v. Owen, 7 Wall. 496; Headman v. Rose, 63 Ga. 458; Burton v. Burton, 1 Keyes, 359; all cited in Moore, Dig., III, 456. See, also, Van Dyne, Naturalization, 231–233.

According to an executive order by President Roosevelt, of April 6, 1907, "Any white woman or woman of African nativity or descent or Indian woman married to a citizen of the United States is a citizen thereof; and it is immaterial whether the husband became a citizen before or after marriage." Dept. of State, Circulars Relating to Citizenship, etc., 1916, p. 7.

According to an opinion of Mr. Palmer, Atty.-Gen., addressed to the Secy. of Labor, May 8, 1920, the proviso in Section 19 of the Immigration Act of Feb. 5, 1917, 39 Stat. 889, which declares that the marriage of an immoral alien female to an American citizen shall not invest such female with citizenship, is limited to marriages of immoral alien women to American citizens which are solemnized in the United States.

makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering before a United States consul within one year after the termination of such marital relation. Consistently with the principle applied to the converse situation, the termination of the marital relation does not itself effect a change of nationality, but simply leaves the woman free to follow her own choice, requiring of her formal election only in case she desires to renounce or not resume, as the case may be, the nationality of the State, in which she continues to reside.

g

§ 367. Effect of Parents' Naturalization on Infants.

In determining what effect the naturalization of the parents should have upon the nationality of their infant children, the United States has heeded two principles, the disregard of either of which would tend to produce a conflict of allegiance.2 The first is the right of a foreign State to claim the allegiance of children born to its own nationals, while such children reside within its domain. The second is "that it is not within the power of a parent to eradicate the original nationality of his child, though he may, during the minority of such child, invest him with rights or subject him to duties which may or may not be claimed or performed." Hence the existing law, as now interpreted, permits the naturalization of the parents to effect that of the child solely on the following conditions. The latter must be an infant at the time of the parents' naturalization; its citizenship does not begin

1 § 4, 34 Stat. 1229, U. S. Comp. Stat. 1918, § 3961. Respecting the operation of the statute, see circular instructions of Mr. Root, Secy. of State, to American diplomatic and consular officers, April 19, 1907, For. Rel. 1907, I, 10-13.

2 Zartarian v. Billings, 204 U. S. 170, 174, 175; Van Dyne, Naturalization, 202, 203.

3 Mr. Blaine, Secy. of State, to Mr. Phelps, Minister to Germany, Feb. 1, 1890, in the Case of Carl Heisinger, For. Rel. 1890, 301, Moore, Dig., III, 467.

4 § 2172, Rev. Stat. provides that "The children of persons who have been duly naturalized under any law of the United States... being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof."

§ 5, Act of March 2, 1907, 34 Stat. 1229, U. S. Comp. Stat. 1918, § 3962, declares: "That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization

EFFECT OF PARENTS' NATURALIZATION ON INFANTS [§ 367

until the child begins to reside permanently within the United States, although such residence may commence, if during infancy, after the naturalization of the parents. Thus a foreign-born alien child cannot gain American citizenship by a temporary sojourn in the United States, whether at the time of, or subsequent to, the naturalization of its parents; 2 nor can it do so if it fails to begin its permanent residence in the United States during infancy.3

That an alien child may be naturalized as a consequence of the naturalization by marriage of its widowed mother to an American citizen, or by the resumption of citizenship by the mother after the termination of the marital relation (as in the case of a woman who had relinquished her American citizenship by marrying a foreigner), appears to be clear. It is believed that the Act of March 2, 1907, is sufficiently comprehensive to effect the naturalization of an illegitimate alien child through the naturalization of the mother, whether by marriage or otherwise.

That a citizen of the United States cannot, by adopting a child

of or resumption of American citizenship by the parent; Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States."

1 Mr. Hay, Secy. of State, to Mr. Harris, Minister to Austria-Hungary, Jan. 22, 1900, in the Case of Anton Maček, For. Rel. 1900, 13-15, Moore, Dig., III, 470, citing Mr. Blaine, Secy. of State, to Mr. Phelps, Minister to Germany, Feb. 1, 1890, For. Rel. 1890, 301; Zartarian v. Billings, 204 U. S. 170, decided Jan. 7, 1907, construing § 2172, Rev. Stats. Respecting § 5 of the Act of March 2, 1907, see United States v. Rodgers, 185, Fed. 334.

See, also, Moore, Dig., III, 464-472, and documents there cited; Van Dyne, Naturalization, 200–218.

See in this connection Delaware, L. & W. R. Co. v. Petrowsky, 250 Fed. 554, 558.

2 As to the law in this regard, prior to the enactment of the Act of March 2, 1907, see Mr. Frelinghuysen, Secy. of State, to Mr. Kasson, Minister to Germany, Jan. 15, 1885, For. Rel. 1885, 394, 395; Van Dyne, Naturalization, 214-215.

3 Case of Young v. Peck, 21 Wend. 389, and 26 Wend. 613, Van Dyne, Naturalization, 201.

Correspondence with Germany respecting the Case of John Haberacker, For. Rel. 1891 and 1892, Moore, Dig., III, 473–483; Mr. Hay, Secy of State, to Mr. Harris, Minister to Austria-Hungary, Jan. 22, 1900, For. Rel. 1900, 13-15. See, also, United States v. Rodgers, 144 Fed. 711, and other cases cited in Van Dyne, Naturalization, 220-223.

The Act of March 2, 1907, § 5, refers expressly to the "resumption of American citizenship by the parent.'

Hence it is believed that in case the mother were naturalized by marriage, the naturalization of the child would not be dependent upon showing that the husband of the mother was its reputed father, or in case he was, upon establishing that marriage served to legitimate the child as well as to naturalize the mother. That the child becomes an American citizen under the latter circumstances according to § 2172, Rev. Stats., see Van Dyne, Naturalization, 223, citing Mr. Hay, Secy. of State, to Mr. White, March 3, 1899.

of foreign nationality, confer upon it American citizenship appears to be accepted doctrine.1

h

Naturalization Partially Ineffective as to Absent Family

(1)

§ 368. Application to Wives and Infant Children.

The naturalization of an alien in the United States is partially ineffective as to his absent family. Thus, his minor children, until they begin to reside permanently in the United States, under circumstances heretofore observed, undergo no change of nationality.2

With respect, however, to his absent wife, there long appears to have been doubt as to the effect of the naturalization of the husband. For some time past the Department of State has consistently held that the wife gains the benefit of her husband's naturalization and prior to her entering the United States.1

(2)

§ 369. Good Offices for Emigration.

The United States does not assert any right of interposition to secure the emigration from the State of origin of the non

1 Mr. Fish, Secy. of State, to Mr. Rand, Jan. 6, 1872, 92 MS. Dom. Let. 142, Moore, Dig., III, 484; Mr. Frelinghuysen, Secy. of State, to Mr. Willis, M. C., Feb. 21, 1884, 150 MS. Dom. Let. 86, Moore, Dig., III, 484; Mr. Adee, Second Assist. Secy. of State, to Mr. Goepel, Sept. 13, 1888, 169 MS. Dom. Let. 657, Moore, Dig., III, 485.

That a child born of Chinese parents in China cannot be permitted to enter the United States as an American citizen because of its adoption by a temporary resident of China who is a citizen of the United States, see For. Rel. 1906, I, 288-290; also id., II, 1015.

2 Effect of Parents' Naturalization on Infants, supra, § 367.

Mr. Buchanan, Secy. of State, to Mr. Rosset, Nov. 25, 1845, 35 MS. Dom. Let. 330, Moore, Dig., III, 487; Mr. Trescot, Assist. Secy. of State, to Mr. Capelle, June 18, 1860, 52 MS. Dom. Let. 358, Moore, Dig., III, 487.

This rule a fortiori applies to other relations, such as that of mother or sister." Moore, Dig., III, 487, citing Mr. Olney, Secy. of State, to Mr. Torrey, June 17, 1896, 210 MS. Dom. Let. 686; Same to Mrs. James, July 18, 1896, 211, id., 410.

3 Mr. Seward, Secy. of State, to Mr. Tinelli, April 1, 1868, 78 MS. Dom. Let. 275, Moore, Dig., III, 485; Mr. Foster, Secy. of State, to Mr. Thompson, Minister to Turkey, Feb. 9, 1893, For. Rel. 1893, 598, Moore, Dig., III, 486; Mr. Gresham, Secy. of State, to Mr. Watrous, Jan. 23, 1895, MS. Dom. Let. 346, Moore, Dig., III, 487. See, also, Burton v. Burton, 26 How. Pr. 474, Van Dyne, Naturalization, 234.

For the statement in the text the author acknowledges his indebtedness to Mr. R. W. Flournoy, Jr.