Page images

United States desired to put the American law in force, the American law must prevail, and American-born widow's being resident in America would not be entitled to a certificate of being British subjects. The British Government further decided in the case of British-born subjects, the widows of American or foreign husbands, that if after the dissolution of their coverture they should elect to claim the benefit of their British character, they would be at liberty to do so, and must be treated and protected as British subjects. (Parl. Pap. No. 189.)"

1 Halleck's Int. Law (Baker's ed. 1878), 369.

“ I have your dispatch No. 68, respecting the case of Mrs. Gordon, formerly Topaz, a Russian woman of the Hebrew faith, who has lately married an American citizen. It is understood that by the laws of Russia she could not, while a subject of Russia, remain in the empire without renouncing her faith and accepting Christianity.

You wish to know whether by her marriage to an American such a person, under the statutes of the United States and the first article of the treaty of 1832 with Russia, acquires the right to be exempt from the operation of the municipal laws of Russia.

“ The statute of the United States regulating the status of alien women married to American citizens was approved on the 10th of February, 1855. (10 Stat. L. 601.) By this statute it is enacted “that any woman who might lawfully be naturalized under the existing laws, married or who shall be married to a citizen of the United States, shall be deemed and be taken to be a citizen.'

The Attorney-General of the United States in construing this statute has held that irrespective of the time or place of marriage, or the residence of the parties, any free white woman, not an alien enemy, married to a citizen of this country, is to be taken and deemed a citizen of the United States.' [Williams, At.-Gen., 1874, 14 Op. 402, 406.]

“There can therefore be no doubt that such a person would, upon her marriage to an American citizen, acquire the right to be regarded by the authorities of the United States as an American citizen in every country except that to which she owed allegiance at the time of her marriage.

“ It is understood at the Department that the laws of Russia regard a Russian subject marrying a foreign husband as a foreigner. In such case no conflict of law could arise, because the Russian Government would concede the full American citizenship of the married woman. But should it be otherwise, her relations to that Government would be affected by another opinion of the Attorney-General [Hoar, At.-Gen., 1869, 13 Op. 128], that while the United States may by law fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it ought not, by undertaking to confer the rights of citizenship upon the subject of a foreign nation, who had not come within our territory, to interfere with the just rights of such nation to the government and control of its own subjects."

Mr. Fish, Sec. of State, to Mr. Jewell, June 9, 1874, H. Ex. Doc. 470, 51

Cong. 1 sess. 24.


In 1896 Mr. Breckinridge, then American minister at St. Petersburg, observing in the foregoing instruction an uncertainty as to the actual state of the Russian law, addressed an inquiry on the subject to the Russian foreign office. Mr. Chichkine replied March 14/26, 1896, that "every Russian woman married to a foreigner embraces the nationality of the latter if the marriage has been contracted conformably to Russian law."

Mr. Breckinridge, min. to Russia, to Mr. Olney, Sec. of State, No. 264,

March 28, 1896, 48 MS. Desp. Russia.
Mr. Olney, observing the clause if the marriage has been contracted con-

formably to Russian law,” suggested the inquiry whether the Rus-
sian law recognized the general international rule that a marriage
valid according to the place of its performance is valid elsewhere.
(Mr. Olney, Sec. of State, to Mr. Breckinridge, min. to Russia,

No. 218, April 11, 1897, MS. Inst. Russia, XVII. 437.)
The answer is given in the next passage.
The Department of State seems to have thought, in 1863, that the

Russian denial of the right of voluntary expatriation extended to
Russian women marrying foreigners; but in the statement of this
supposition there is no reference to any provision of Russian law at
that time. (Mr. F. W. Seward, Assist. Sec. of State, to Mr. Morgan,
March 13, 1863, 59 MS. Dom. Let. 564.)

By article 1026 of the Russian Civil Code, Collection of Laws of the Russian Empire, IX., edition of 1876, it is provided : “ Every Russian subject who has married a foreigner, and thereby will be considered as a foreigner, has the right after the death of her husband, or after a formal divorce, to resume Russian allegiance, and in this case it will suffice for her to present to the governor of the province in which she may have chosen domicil a special certificate proving her widowhood or divorce. The document delivered by the governor stating that the above certificate has been presented to him will be available to the person in question as proof of her resumption of Russian allegiance."

See Mr. Peirce, chargé d'affaires ad interim, to Mr. Sherman, Sec. of

State, Aug. 18, 1897, enclosing a note of Count Lamsdorff, of July 31/Aug. 12, 1897, For. Rel. 1897, 45,

In a case involving the validity of the marriage of a citizen of the United States with a Chinese woman at Canton, China, the ceremony being performed by a Roman Catholic priest, it was stated that “a woman's nationality merges on marriage in that of her husband," and that the Chinese wife of the citizen in question “ became, by the mere fact of her marriage, an American citizen."

Opinion of Dr. Francis Wharton, law officer of the Department of State,

April 29, 1885, communicated by Mr. Bayard, Sec. of State, to Mr. Smithers, chargé at Peking, May 4, 1885, For. Rel. 1885, 171, 172. See, however, as to the question of merger of nationality, in the case of a Chinese woman married to a citizen of the United States, a contrary view expressed in Mr. Hay to Mr. Conger, Feb. 5, 1903, supra, & 410, p. 458.

In 1888 an agreement was entered into between the German minister at Peking and the tsung-li yamên with reference to jurisdiction over Chinese women who were married to German subjects. The principle was adopted that a Chinese woman married to an alien was subject to the jurisdiction of the laws of her husband's nationality; but it was agreed that the fact of the marriage of a Chinese woman to a German subject should be communicated by the German consul to the local authorities. It was also agreed that the German consular officers should make report of existing marriages; but that, where the parties had failed to request the German consul to report the marriage to the local authorities, and an action at law was brought against the wife, it should be tried and settled by the Chinese authorities. It was also stipulated that, if it appeared that a Chinese woman had been guilty of a crime before her marriage and had married a German subject for the purpose of placing herself under foreign protection, the crime should be punished by the Chinese authorities.

Mr. Denby, min. to China, to Mr. Bayard, Sec. of State, July 9, 1888, For.

Rel. 1888, I. 319-321.

“ The rule accepted by the Government of China, that places a Chinese woman married to a German under the national jurisdiction of the husband, will probably assist in determining the status, in China, of the Chinese wife of an American citizen, assuming the marriage to be consensual and monogamous; and no special agreement on our part with China or modification of our statute to such end appears to be necessary at present.

Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Aug. 27, 1888, For.

Rel. 1888, I. 349–350.


[merged small][ocr errors][merged small]


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."

Rev. Stats., $ 2172; acts of March 26, 1790, 1 Stat. 103; Jan. 29, 1795,

$ 3, 1 Stat. 414; April 14, 1802, $ 4, 2 Stat. 153 ; Rexroth i. Schein

(1903), 206 Ill. 80, 69 N. E. 240. The act of 1802 was intended to opera prospectively as well as retro

spectively, and should not be limited to the children of those who had been naturalized at the time of its passage. (Boyd 1. Thayer, 113 U. S. 135, 177, citing United States 1. Kellar, 13 Fed. Rep. 82; West v. West, 8 Paige, 133; State 1. Andriano, 92 Mo. 70; State 1. Penney,

10 Ark. 621; O'('onnor 1. The State, 9 Fla. 215.) By 8 2168, R. S., when an alien, who has made a declaration of intention,

“ dies before he is actually naturalized, the widow and the children of such alien ” may become citizens upon taking the oaths pre

scribed by law."
See Ferguson V. Johnson, 1 Tes. Civ. App. 413; Trabing v. United

States, 32 (t. ('l. 440.
The naturalization of the father does not relate back to the declaration

of intention, so as to affect the status of a child who has attained his
majority before the father's naturalization. (Berry 1. Hull (N. M.),
30 Pac. 936. See, also, Dorsey 1. Brigham, 177 III. 250, 52 N. E. 303.)

Under $ 4, act of April 14, 1802, a minor child of a father naturalized as a citizen of the United States became a citizen, though not then within the United States, provided she was resident therein at the time of the passage of the act.

See Behrensmeyer v. Kreitz,

Campbell v. Gordon (1810), 6 Cranch, 176.

135 Ill. 591, 26 N. E. 704.

Children born abroad of aliens who subsequently emigrated to this country with their families, and were naturalized here during the ininority of their children, are citizens of the United States.

Bates, At. Gen., 1862, 10 Op. 329 ; cited in Mr. Frelinghuysen, Sec. of

State, to Mr. Brulatour, July 30, 1883, MS. Inst. France, XX. 594. It does not suffice that the child was a minor when the parent's declara

tion of intention was made; he must have been a minor when the naturalization was completed. (Mr. Cass, Sec. of State, to Mr.

Medill, June 14, 1859, 50 MS. Dom. Let. 391.) A boy of eighteen years, who has never been out of Germany, but whose

father is a naturalized citizen of and resident in the United States,

is not entitled to obtain the interposition of this Government to secure him from military service in Germany, or to relieve him from being detained in Germany for that purpose. (Mr. Evarts,

Sec. of State, to Mr. Caldwell, Mar. 6, 1880, 132 MS. Dom. Let. 93.) Section 2172 of the Revised Statutes is regarded as applicable to such

children as were actually residing in the United States at the time of their father's naturalization, and to minor children who came to the United States during their minority and while the parents were residing here in the character of citizens.” (Mr. Blaine, Sec. of State, to Mr. Kasson, Mar. 31, 1881, For. Rel. 1881, 52, 53.)

“ The laws of the United States on the subject of naturalization provide, in relation to persons situated as your sons are, that the children of persons duly naturalized under any of the laws of the United States,

being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States. Assuming that your three sons were born in France, accompanied you to this country and have continued to reside here (the fact is not distinctly stated in your letter), they, together with your son born here, are, under the provision just cited, to be considered, when dwelling in the United States, citizens of the United States, with all the rights and privileges attaching to that character, and entitled to the protection which this Government extends to all its citizens in the exercise and enjoyment of these rights.

“ This Department does not as a rule undertake to give information

upon the laws of other countries, nor as to the construction which those countries may put upon their own laws in applying them to persons found within their territorial jurisdiction."

Mr. Fish, Sec. of State, to Mr. Jouffret, Feb. 11, 1874, 101 MS. Dom.

Let. 291. See, also, Mr. Bayard, Sec. of State, to Mr. Cramer, No. 140, May 22, 1885, MS. Inst. Switz. II. 256 ; Mr. Wharton, Assist. Sec. of State, to Mr. Cook, April 6, 1892, 186 MS. Dom. Let. 21.

A Spanish subject by birth was naturalized in the United States in February, 1876, and thereupon his son, aged twenty, who was born in the Island of Cuba, applied to the State Department for a passport, stating that he had resided in the United States for five years, but that it was his intention to resume his residence in the Spanish dominions and engage in business there. It was held that the son, being a minor at the time of his father's naturalization, must be considered a citizen of the United States within the meaning of section 2172, Revised Statutes, and as such entitled to a passport, and that the circumstance that he intended to reside in the country of his birth did not make him less entitled than if his destination were elsewhere.

H. Doc. 551-Vol 3- -30

« PreviousContinue »