The presumption of the law, with respect to residence in a foreign country, especially if it be protracted, is that the party is there "animo manendi," and it lies upon him to explain it. (Van Dyne on Citizenship, 273.)

Daniel Webster, when Secretary of State, in a report to Congress, December, 1851, said:

The general rule of public law is, that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile, and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period.

The Supreme Court of the United States has decided "that a person who removes to a foreign country, settles himself there and engages in trade of the country, furnishes by these acts such evidence of an intention permanently to reside in that country as to stamp him with its national character," and this undoubtedly is in full accordance with the sentiments of the most eminent writers as well as those of other high judicial tribunals on the subject. (Opinions of the Principal Executive Officers, etc., p. 22.)

There can be no dispute that the most certain evidence of intention of expatriation from a country is departure from it with intent not to return. The parent laws of our citizenship and naturalization laws were the Virginia laws of 1779 and 1782, which were drawn up by Thomas Jefferson, who recommended the enactment of the Federal law of 1802, upon which our system of naturalization rests. The Virginia law of 1779 is notable because it contained a provision for expatriation in the following terms:

That whensoever any citizen of this commonwealth shall by word of mouth in the presence of the court of the county wherein he resides, or of the general court, or by deed in writing under his hand and seal, executed in the presence of three witnesses, and by them proved in either of the said courts, openly declare to the same court that he relinquishes the character of a citizen and shall depart the commonwealth, such person shall be considered as having exercised his natural right of expatriating himself, and shall be deemed no citizen of this commonwealth from the time of his departure. (Chap. IV, vol. 10, p. 129, Hening's Stats. at Large.)

Before the right of expatriation was generally recognized by the courts of the United States it was held that if it existed permanent departure from the United States was the proof of it. In 1822 the Supreme Court, in the Santissima Trinidad case, said, through Judge Story:

Assuming, for the purpose of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no opinion, it is perfectly clear that this can not be done without a bona fide change of domicil under circumstances of good faith.

That is to say, if it can be done it can be done by a bona fide change of domicile.

As early as 1795, in a case involving the expatriation of a citizen of the United States, the Supreme Court said (the opinion of Mr. Justice Paterson):

A statute of the United States relative to expatriation is much wanted. * * * Besides, ascertaining by positive law the manner in which expatriation may be effected would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point. (3 Dall., 154.)

President Grant, in his annual message of December 5, 1876, said: The United States has insisted upon the right of expatriation, and has obtained, after a long struggle, an admission of the principles contended for by acquiescence therein on the part of many foreign powers and by the conclusion of treaties on that subject. It is, however, but justice to the government to which such naturalized citizens have formerly owed allegiance, as well as to the United States, that certain fixed and definite rules should be adopted governing such cases and providing how expatriation may be accomplished.

While emigrants in large numbers become citizens of the United States, it is also true that persons, both native born and naturalized, once citizens of the United States, either by formal acts or as the effect of a series of facts and circumstances, abandon their citizenship and cease to be entitled to the protection of the United States, but continue on convenient occasions to assert a claim to protection in the absence of provisions on these questions. *

The delicate and complicating questions continually occurring with reference to naturalization, expatriation, and the status of such persons as I have above referred to induce me to earnestly direct your attention again to these subjects.

These are merely examples of judicial and executive recommendations on the subject, which could be multiplied, the last one being in the annual message of President Roosevelt in 1904.

IV.

The fourth recommendation is self-explanatory. If one who becomes an American citizen thereby experiences a new political birth, one who loses American citizenship is in the same position as an alien and must do the things which are required of an alien before he can become an American citizen.

V.

The fifth recommendation is declaratory of a principle of public law which should be placed upon the statute books, so that no doubt can ever be raised on a point which may be vital to the United States. "The duty of a citizen when war breaks out," said the Supreme Court in 1856 (5 Wal., 408), " if it be a foreign war and he is abroad, is to return without delay," and it would seem to be equally evident that such is his duty if his Government is threatened by domestic insurrection. In time of war, domestic or foreign, the Government should be able to control the services of every citizen, and the right of changing allegiance should not exist when the State is in peril. In his Elements of International Law Halleck declares that (p. 133) "the right of voluntary expatriation exists only in time of peace and for lawful purposes."

In 1873, in the notable letters from the heads of Executive Departments to President Grant on the subject of protection and expatriation, Mr. Richardson, then Secretary of the Treasury and afterwards chief justice of the Court of Claims, said:

The conclusion from it all is that a citizen of the United States in time of peace, not deserting a public trust nor being a fugitive from justice, by renouncing his allegiance to this and becoming in good faith a citizen of another country, in accordance with the laws thereof, is denationalized.

Mr. Fish, Secretary of State, said:

It (expatriation) can not be exercised by one while residing in a country whose allegiance he desires to renounce nor during the existence of hostilities; no subject of a belligerent can transfer his allegiance or acquire another citizenship, as the desertion of one's country in time of war is an act of criminality, and to admit the right of expatriation, “flagrante bello," would be to afford a cover to desertion and treasonable aid to the public enemy.

IV. EFFECT OF NATURALIZATION UPON STATUS OF WIFE AND MINOR CHILDREN.

RECOMMENDATIONS AND OBSERVATIONS.

Recommendations.

1. That an American woman who marries a foreigner shall take during coverture the nationality of her husband; but upon termination of the marital relation by death or absolute divorce she may revert to her American citizenship by registering within one year as an American citizen at the most convenient American consulate or by returning to reside in the United States if she is abroad; or if she is in the United States by continuing to reside therein.

2. That a foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain her American citizenship upon termination by death or absolute divorce of the marital relation if she continues to reside in the United States, unless she makes formal renunciation of such citizenship before a court having jurisdiction to naturalize aliens; and if she proceeds abroad she may conserve American citizenship by registering within a year as an American citizen before the most convenient American consulate.

3. A minor and nonresident child born without the United States of alien and nonresident parents shall be deemed a citizen of the United States by virtue of the naturalization of the parents, provided, however, that such naturalization take place during the minority of such child; and provided further, that the citizenship of such minor child shall date from the entry of such minor into the United States permanently to reside therein.

Observations.

The question of naturalization by virtue of the marriage relationship came before Congress as early as 1804, with the result that that body passed an act providing—

that when any alien who shall have complied with the first condition specified in the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act, may die before he is actually naturalized, the widow and children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law.

This, of course, would not cover the case of an alien woman who married an American citizen, naturalized or native. A number of cases having arisen involving this point, as will be seen from those cited below, Congress in 1855 made further provision as follows:

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 taken to be a citizen.

29

This statute seems based directly upon the English statute 7th and 8th Vict., chap. 66, sec. 16, which provides:

And be it enacted, That any woman married or who shall be married to a natural-born subject or person naturalized shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural-born subject.

This statute remains practically unchanged at the present time.

(1) NATURALIZATION BY NATURALIZATION OF THE HUSBAND.

Where the wife is a resident.-A number of cases arose under the acts of 1802 and 1804, the general effect of which was well expressed by Chief Justice Simpson in White v. White, 1859, 2 Met. (Ky.), 185, 191, when he said:

Naturalization is a personal privilege, and the alien wife does not become a naturalized citizen by the naturalization of the husband. The acts of Congress do not impart to it that effect, nor are we apprised of any law which at the time of the decedent's death conferred upon his wife the right to take real estate by descent in consequence of his naturalization, although such a right has been since conferred upon an alien wife whose husband is a citizen of the United States by the Revised Statutes.

In accordance with this view, it was held that the alien widow of an American citizen could not take dower (Sutliff v. Forgey, 1823, 1 Cowen, 89, affirmed in 5 Cowen, 713), and it has since been said that "it has never been supposed since Sutliff v. Forgey that her capacity followed that of her husband." (Connolly v. Smith, 1839, 21 Wend., 59.) The courts have, morever, been consistent in this ruling and have applied it in favor of native American women whose husbands had become naturalized in a foreign State. (Moore v. Tisdale, 1845, 5 B. Mon., 352.)

But the statute of 1855 has been interpreted, properly, it would seem, to declare a new rule, which is, as stated by the court in Kelly r. Owen, 1868, 7 Wall., 496, that

It confers the privileges of citizenship upon women married to citizens of the United States if they are of the class of persons for whose naturalization the previous acts of Congress provide.

And the cases have uniformly taken this position. (Kane . McCarthy, 1869, 63 N. C., 299; Renner v. Muller, 1879, 57 How. Pr., 229; People v. Newell, 1885, 38 Hun, 78; Kreitz v. Behrensmeyer, 1888, 126 Ill., 141.)

Of course the mere taking of the declaratory oath will by the terms of the statute have no such effect if the husband is still living. (Dorsey v. Brigham, 1898, 177 Ill., 350.)

Moreover, as stated in Kelly v. Owen, for the wife to be so naturalized by the naturalization of the husband she must be one of those classes of persons who may, according to the naturalization laws, become citizens of the United States. (Leonard v. Grant, 1880, 5 Fed., 11, 17, s. c. 6 Sawy., 603.)

Where wife is a nonresident.-Certainly, on any logical application of principle, if a resident wife under the early laws was not esteemed a citizen, a nonresident wife must be considered in the same position, and this has been the ruling of the courts. (Kelly v. Harrison, 1800, 2 Johns. Cas., 29; Greer v. Sankston, 1858, 26 How. Pr., 473.) Since the act of 1855 the matter has been again before the courts in Burton

. Burton, 1864, 26 How. Pr., 474, on facts the same as those in the cases cited above, except that in Burton v. Burton the widow came to America. The court discussed elaborately the authorities, and in the course of its opinion said:

In this case, the plaintiff has neither sought to derive the benefit of her husband's naturalization by coming with or following him here, in order to entitle herself to the benefit of a liberal construction in her favor of the act, as suggested, by a residence in this country of any duration prior to her husband's death. Her rights, therefore, as a citizen, depend entirely upon the construction of the section of the statute under consideration, and I am of the opinion that she has no claim upon her husband's estate thereunder. He was not, when he married her, a citizen of the United States, and she was never a resident thereof during his life. On the contrary, she was and continued to be both alien and stranger.

The plaintiff being an alien, and having married an alien, and not having resided in this country prior to her husband's death, has no dower right in the lands of which her husband died seized, under the provisions of the act of the legislature passed in 1845.

But the principle has not been followed in a case where an American woman whose husband became a citizen of a foreign State (Texas) always resided in the United States, the court holding in this case that the wife became a citizen of the foreign State. (Kircher v. Murray, 1893, 54 Fed., 617.)

(2) NATURALIZATION BY MARRIAGE TO A CITIZEN.

An alien woman marries an American citizen.-The courts have made no distinction, as to the status of the wife, between those cases in which the woman married an alien who later became a citizen and those in which she married one who was already a citizen, and in the latter situation, no difference is made between cases in which the citizen is a naturalized citizen and those in which he is a nativeborn citizen.

In the cases of Mick v. Mick, 1833, 10 Wend., 379, and Priest . Cummings, 1837, 16 Wend., 617 (cases of dower), the court characterized the widow as an "alien widow of a foreign born citizen," and so refused her dower. The same holding was made in Currin v. Finn, 1846, 3 Denio, 229, though it does not appear whether the husband was a native or naturalized citizen.

But, under the statute of 1855, the courts have changed their rulings and have uniformly recognized the principle that an alien woman by marrying an American citizen becomes thereby herself a citizen. (Knickerbocker Life Insurance Company . Gorbach, 1871, 70 Pa. St., 150; United States v. Kellar, 1882, 13 Fed., 82, S. C., 6 Sawy., 603; Kane v. McCarthy, 1869, 63 N. C., 299; Kreitz v. Behrensmeyer, 1888, 125 Ill., 141; People v. Newell, 1885, 38 Hun., 78; Gumm v. Hubbard, 1888, 97 Mo., 341.) This has indeed been followed where the husband was foreign born, and depended for his citizenship upon the citizenship of his father (Ware. Wisner, 1883, 50 Fed., 310), and it appears immaterial that at the time of the marriage the parties are not and do not reside in the United States. (Halsey v. Beer, 1889, 52 Hun., 366.) The act is held to naturalize a negro under the provisions of the fourteenth amendment. (Broadis v. Broadis, 1898, 86 Fed., 951.)