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.

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 e. 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 . 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 v. 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 e. Brigham, 1898, 177 Ill., 350.)

Moreover, as stated in Kelly . 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 . Grant, 1880, 5 v. 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 . 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

e. 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 ". Mick, 1833, 10 Wend., 379, and Priest v. 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 . McCarthy, 1869, 63 N. C., 299; Kreitz v. Behrensmeyer, 1888, 125 Ill., 141; People v. Newell, 1885, 38 Hun., 78; Gumm. 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.)

The general effect of the act of 1855 was well stated in Kelly v. Owen, 7 Wall., 498, as follows:

As we construe this act, 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. The terms “ married" or "who shall be married" do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman who under previous acts might be naturalized is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. His citizenship, whenever it exists, confers under the act citizenship upon her. The construction which would restrict the act to women whose husbands at the time of marriage are citizens would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her citizenship to follow that of her husband without the necessity of any application for naturalization on her part, and if this was the object there is no reason for the restriction suggested.

To the same effect see Kane v. McCarthy (1869, 63 N. C., 299) and Luhrs v. Eimer (1880, 80 N. Y., 171).

A native citizen (woman) marries a foreign citizen—A resident foreigner. In the one case found upon this point (Comitis v. Parkerson, 1893, 56 Fed., 556) the husband had taken up a permanent residence in the United States and had established here a business. In holding that by marriage to such an alien the wife did not lose her American citizenship, the court said:

The question may be generalized thus: Does a woman who was a citizen of the United States, who never intended to leave it and never did leave it, become expatriated and become an alien by marriage with a man who had been a subject of Italy, but who, previous to his marriage, had settled in Louisiana and had forever severed himself from Italy?

The present case is supported by a dictum in Kreitz v. Behrensmeyer, supra, to this effect:

The citizenship of a woman thus acquired [by marriage with a citizen husband] is not lost by the subsequent death of her husband and her afterwards intermarrying with an alien.

These cases should be considered in connection with Pequignot v. Detroit, infra, from which it may be distinguished on its facts (and was so distinguished by the court), though the spirit of the two is opposed.

A nonresident foreigner. Since the courts in the early cases held that the status of an alien woman was not changed by her marriage to an American citizen, they should hold, to be consistent, that the status of an American woman was not changed by her marriage to a foreigner. Such a conclusion was reached in Shanks . Dupont, 1830, 3 Pet., 242. The question arose in two earlier cases, Sewell v. Lee, 1812, 9 Mass., 363, and Barzizas v. Hopkins, 1824, 2 Randolph, 276. In the first, however, the court expressly refused to decide the question since the defendant had by his plea admitted a capacity to sue, and in the second the decision might have been placed on another ground. (See also Beck . McGillis, 1850, 9 Barb., 35, and Jennes v. Landes, 1897, 84 Fed., 13.)

In the most recent case in which the question seems to have been up (Ruckgaber . Moore, 1900, 104 Fed., 947), the court declared that a woman marrying an alien becomes a foreign citizen, 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."

A naturalized American citizen (woman) marries a foreign citizen.-But one case has been found on this point in which the facts were that an alien of French parentage by her marriage with an American citizen had been deemed, under the act of 1855, to have been naturalized as a citizen. From this husband she was divorced and later married her second husband, an alien Frenchman, who had never even declared his intention to become a citizen. The court held that she was an alien and incompetent to sue in the Federal courts. As already stated, while the court in Comitis v. Parkerson, supra, distinguished the two cases by stating that—

In that case [Pequignot v. Detroit] the facts characterizing the residence of the husband and wife may have made it what the public writers term "temporary residence," whereas the intent of the plaintiff and her husband was to remain in the United States always,

yet the spirit of the two cases is opposed, and it may be doubted if both can stand.

It may be stated in conclusion that, if the courts take the position announced in Comitis v. Parkerson, and also follow the holdings in such cases as Ware v. Wisner, supra; Halsey v. Beer, supra (to the effect that an alien woman nonresident marrying a nonresident American citizen becomes thereby an American citizen), and if foreign countries assume the same position we shall have in every case of naturalization by marriage, for which naturalization the statutes of England, France, Germany, and America provide, a case of dual allegiance, because under the rule announced in Halsey v. Beer, the King of Italy might insist that the native-born citizen wife of Augustine Comitis became a subject, by that marriage, of Italy, and it must be deemed immaterial, under the decision of Halsey v. Beer, that the husband in the Comitis case was a permanent resident of America. From the standpoint of comity and the avoidance of conditions of dual allegiance, the decision in Pequignot v. Detroit, seems the sounder.

(3) NATURALIZATION BY NATURALIZATION OF THE FATHER.

Since the statute of 1795 it has been uniformly held that a minor child was naturalized by the naturalization of the father. (Matter of Morrison, 1861, 22 How. Pr., 99; People v. McNally, 1880, 59 How. Pr., 500; State v. Mims, 1879, 26 Minn., 183; Prentice v. Miller, 1890, 82 Cal., 570; Dorsey v. Brigham, 1898, 177 Ill., 250; and see Haynes v. Ray, 1880, 54 Iowa, 109.)

But the taking of the preliminary steps looking toward naturalization (e. g., making of the declaratory oath) has no such effect. (Berry v. Hull, 1892, 6 N. Mex., 643, 660; In re Conway, 1863, 17 Wis., 526; In re Moses, 1897, 83 Fed., 995; and see ex parte Overington, 1812, 6 Binn., 371; unless the father dies before completing his naturalization. Schrimpf v. Settegast, 1873, 38 Tex., 96.)

Under the case of Campbell v. Gordon, 1809, 6 Cranch., 176, it must be considered immaterial that the child is a nonresident at the time of the parent's naturalization. An extreme case in this point is Young v. Peck, 1839, 21 Wend., 389, where the foreign-born child. remained in her native country for fifty years, during which time she H. Doc. 326, 59-2- -3