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Published online by Cambridge University Press: 12 April 2017
For a long time it has been asserted by the Department of State and to a more limited extent by the Department of Labor that a native-born woman who married a foreigner prior to March 2, 1907, and thereupon acquired a foreign matrimonial domicile, lost her American citizenship.
1 Lecture No. 27, 2nd ser., December 17,1934, p. 4.
2 R. S. 1994.
3 Sec'y. Fish, Feb. 24, 1871, after observing that by the law of England and the United States an alien woman marrying a national acquired her husband's nationality, added: “But the converse has never been established as the law of the United States, and only by the act of Parliament of May 12,1870, did it become the British law that an English woman lost her quality of a British subject by marrying an alien.” He held that an American-born widow of a non-resident alien remained legally a citizen of the United States, but thought it “judicious” to withhold a passport unless she intended to resume her residence in the United States. In 1871 it was still thought desirable, owing to Civil War memories, for an American citizen to remain at home. Mr. Fish in 1875 reiterated his view that citizenship was not lost by marriage and residence abroad, though protection might be. Letter to Mr. Williamson, Sept. 22, 1875, Moore's Digest, III, 451. Secretary Bayard adhered to the precedent established by Secretary Fish. Ibid.
4 See Opinion of Attorney General to Secretary of Labor, Aug. 3, 1933, in case of Mrs. Marion Thorgaard. It was there held that American citizenship does not terminate, notwithstanding the fact that the foreign country concerned is a country with which the United States has a naturalization treaty and under its laws its citizenship is conferred on her. Moreover, under the naturalization treaties the matrimonial domicile should be immaterial, whereas there has been Executive concurrence in the view that citizenship is not lost when the matrimonial domicile remains in the United States.
5 Malloy, II, 1298.
6 British Treaty, Art. I, reads “naturalized according to law.“
7 For. Bel. 1865, III, 66-68, 76; 1866, II, 2, 10, 12, 13; 1867, I, 574, 583, 587, 591, 596; 1868, II, 40-58. See also H. Ex. Doc. 245,40th Cong. 2d Sess., Treaties with German States, reprinting diplomatic correspondence; Sen. Ex. Doc. 51, 40th Cong. 2nd Sess., containing report of the Secretary of State, embodying Bancroft's explanation, and reporting Bismarck's interpretation in the Diet: “The literal observation of the treaty includes in itself that those whom we are bound to acknowledge as American citizens cannot be held to military duty in North Germany. That is the main purpose of the treaty—whosoever emigrates bona fide with the purpose of residing permanently in America, shall meet with no obstacle, on our part, to his becoming an American citizen, and his bona fides will be assumed when he shall have passed five years in that country, and, renouncing his North German nationality, shall have become an American citizen.” Mr. Bancroft continues: “In the beginning of the debate ex-Consul Meier had most clearly explained that the American law required from the person who becomes naturalized a total renunciation of his allegiance to any other power. Holding fast to this fact, Count Bismarck replied that the German-American citizen, on resuming his relations as a citizen of North Germany, would under the treaty, stand in the light of a foreigner emigrating into North Germany; that he could not be held to the discharge of any old military duty, but only to such new military duty as would attach to every foreigner emigrating into North Germany and becoming naturalized there.” See also Munde, Ch., The Bancroft Naturalization Treaties. Würzburg, 1868.
8 Cf. v. Martitz, “Das Recht der Staatsangehörigkeit im intemationalen Verkehr,” Hirth's Annalen des deutschen Beiches, 1875, pp. 704 et seq., 1113 et seq.; Kapp, “Der deutsch amerikanische Vertrag,” Preuss. JahrMchern, 1875, v. 35, pp. 508, 534, 660-683, and v. 36, 189 et seq. For the effect of the treaties on the German law of citizenship, see Dzialoszynski, S., Die Bancroft-Vertrdäe. Breslau, 1913, p. 119.
9 “To Article I, para. 2: The question whether by or after the acquisition of citizenship in the territory of one contracting party the original citizenship of the emigrant in his own country still continues, is not determined by the treaty and is to be decided according to the internal legislation of the respective party.” Stenog. Berichte des Reichstages des Nordd. Bundes, 1868, II, 17.
10 It seems to have been uniformly held that the naturalization of a parent was also a formal naturalization of his minor child, whose naturalization the treaty required to be recognized by the country of origin. U. S. v. Reid, 73 Fed. (2d) 153 (1934). In re CStizenship of Ingrid Theresa Tobiassen, 36 Op. Atty. Gen. 535 (1932).
11 The whole correspondence is printed in For. Rel. 1873, II, Appendix, pp. 1185-1232.
12 For. Bel. 1873, Appendix, pp. 1187-8. The Attorney General, George H. Williams, responded to the President's question 2 as follows: “But if such citizen emigrated to a foreign country, and there, in the mode provided by its laws, or in any other solemn or public manner, renounces his United States citizenship, and makes a voluntary submission to its authorities with a bona fide intent of becoming a citizen or subject, I think that the Government of the United States should not regard this procedure otherwise than as an act of expatriation.” For. Rel. 1873, App., 1216-7. “My opinion, however, is that, in addition to domicile and intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in military service, &c, may be treated by this Government as expatriation, without actual naturalization. Naturalization is, without doubt, the highest but not the only evidence of expatriation.” Id. 1217. (Italics supplied.)
13 56 Fed. 556, 559(1893).
14 Corinthians II, ch. 3, verse 6.
15 “He who considers merely the letter of an instrument goes but skin-deep into its meaning.” Broom's Legal Maxims, 8th ed. 1911, p. 533, citing Coke's Littleton, 283 b. a Rev. Stat. 1994. Repealed by Sec. 6 of Act of Sept. 22,1922, providing that marriage shall not confer nationality, even on foreign women marrying Americans.
16 34 Stat. 1228. This Act was prospective only, not retroactive. H. Rep. 6431, 59th Cong. 2nd Sess., Jan. 18, 1907. See In re Lynch, 31 Fed. (2d) 762 (S. D. Cal. 1929): “Prior to the Act of March 2,1907, there was no declaration of Congress as to whether a woman marrying an alien lost her American citizenship… . The marriage of Mrs. Lynch, having occurred prior to March 2, 1907, is not, of course, affected by the provisions of the statute” of 1907.
17 46 Stat. 854.
18 Ibid. 1511.
19 239 U. S. 299, 312; 36 Sup. Ct. 106 (1915); this journal, Vol. 10 (1916), p. 165.
20 42 Stat. 1021. H. Rep. 1110, 67th Cong. 2d Sess.
21 See Atty. Gen. Wickersham's opinion in Gossin's case, 28 Op. Atty. Gen. 504 (1910). This opinion, which held that mere return to the United States overcame the presumption, has wisely been followed by the Department of State, notwithstanding conflicting opinions of the Federal courts. For a good résumé of the judicial interpretation of the Act of 1907, see Gettys, Law of Citizenship, Chicago, 1934, pp. 167-172.
22 Thorgaard's case, supra, note 4.
23 In the meantime, committees of Congress had passed upon the case of Mrs. Ruth Bryan Owen, whose seat had been contested on the ground that, by her marriage to a British subject, she had lost her American citizenship and had not been for seven years preceding her election a citizen of the United States. She had married in 1910, during the operation of the Act of March 2, 1907. While the majority of the committee held that the seven-year requirement preceding the election need not be continuous, the minority held that Mrs. Owen had the status of a woman who never lost her citizenship. Had she married prior to the Act of 1907, it is not to be doubted that the majority of the committee would have shared this view. (See House Report 968, 71st Cong., 2nd Sess., William C. Lawson—Ruth Bryan Owen Election Case, March 24, 1930.)
24 Sen. Rep. 1723, 71st Cong. 3rd Sess., explaining Section 4 of Act of March 3, 1931, reads: “The purpose of section 4 is to eliminate the remaining discrimination against married women in the statute relating to citizenship and naturalization, summarized as follows: “(1) The section permits a women [sic] who since September 22, 1922, has suffered an actual or presumptive loss of her United States citizenship because of foreign residence after marriage to an alien to resume her citizenship in the same manner now prescribed for the resumption of United States citizenship by American women who married aliens prior to September 22, 1922. It will be remembered that an act approved July 3,1930, repealed the presumption of loss of United States citizenship by a women [sic] on account of foreign residence after marriage to an alien; but since the repeal is not retroactive this bill indicates a way whereby the American woman whose citizenship rights were affected by the presumption may reestablish her citizenship. At the present time there are native-born American women who have presumptively lost their United States citizenship by foreign residence after marriage to foreigners and who have not been able to overcome to the satisfaction of the State Department the now obsolete presumption. Apparently they are not permitted United States passports and are not afforded protection abroad. Yet, since their loss of United States citizenship is merely presumptive, it is doubtful whether any court proceeding for naturalization is now available to them.” [p. 2.] Sen. Eep. 614, 71st Cong. 2nd Sess., p. 4, indicates that H. R. 10960 facilitating naturalization for American women who had lost their citizenship by marriage referred only to those who had lost it after March 2, 1907 “by the provisions of the 1907 Act.” The repeal of the presumption of expatriation referred only to those women affected by “the 1922 Act” (p. 5). On the amendment to sec. 4 (f) of the Immigration Act, enabling American women who had lost citizenship by marrying aliens and residing abroad to come in outside the quota, the committee again indicates as follows that only loss of citizenship under the Act of 1922 is contemplated (p. 5): “H. B. 10960 amends the above provision of law so that such native-born women or one who has lost her American citizenship by marriage and foreign residence since September 22, 1922, may reenter the United States outside the quota, notwithstanding the fact that the marriage relationship still exists.“
25 In re Lynch, 31 F. (2d) 762 (S. D. Cal. 1929); In re Fitzroy, 4 F. (2d) 541 (1925). In re Krausmann, 28 F. (2d) 1004 (1928). In this case an American-born woman who had married an alien before 1907 petitioned for naturalization. The Naturalization Service contended that she was a citizen, not requiring naturalization, and that the Act of 1907 made a change in the common law, and was not merely declaratory. The court held otherwise, but, it is submitted, wrongly. Comitis v. Parkerson, 56 Fed. 556 (1893); Mrs. D'Ambrogia's Case, 15 Op. Atty. Gen. 599; Sec. of State Fish to Mr. Washburn, Feb. 24,1871, Van Dyne, Citizenship, 133, Moore's Dig. I l l , 449; Sec. of State Blaine to Mr. Phelps, Feb. 1,1890, For. Eel. 1890, 302, Moore's Dig. I l l , 454; Opinion of Mass. Atty. Gen. Allen, Oct. 13, 1920, Status of American women married to aliens prior to March 2, 1907, Mass. Atty. Gen's. Rep., 1920, p. 260.
26 The following cases, holding that a pre-1907 marriage of an American woman to a resident alien made the woman an alien were, it is submitted, wrongly decided: In re Page 12 Fed. (2d) 135 (1926); In re Krausmann, 28 Fed. (2d) 1004 (1928); In re Wohlgemuth, 35 Fed. (2d) 1007 (1929). These were all petitions for naturalization by the wife, brought under the Act of 1922. The Naturalization Service correctly, it is believed, maintained that they were ineligible for naturalization, having been native-born and married before 1907. The court assumed that the Act of 1907 was declaratory of the common law—an erroneous assumption, as will presently be shown. But the issue before the court was probably not deemed of vital importance, for the question was whether the woman was already a citizen, requiring no naturalization, or whether she was now to be admitted to citizenship. Her present title to citizenship was not denied by any one. But if there was so much confusion on the woman's nationality when the matrimonial domicile remained domestic, it is com prehensible that confusion might be even greater when the matrimonial domicile was foreign. The view of two courts in 1925 and 1929 that the foreign domicile denationalized, but not the domestic, was purely dictum, for the pre-1907 married women then seeking naturalization had never left the United States. In re Fitzroy, 4 Fed. (2d) 541 (1925). In re Lynch, 31 Fed. (2d) 762 (1929). Both were correctly held to have always remained citizens, notwithstanding marriage to an alien.
27 Treaties are left out of account here, such as treaties ceding away territory and the nationality of its inhabitants, and formal naturalization treaties. An attempt has been made, supra, to indicate that a proper interpretation of the Bancroft naturalization treaties does not include marriage as a treaty form of naturalization.
28 Citizenship of the United States, p. 127.
29 Van Dyne, op. cit., 133; Moore's Digest, III, 450-451. (Italics supplied.)
30 56 Fed. 556, 563.
31 Vol. IX, p. 91.
32 London, 1907, p. 57.
33 P. 11.
34 Bacon's Abridg. 4th ed., 1778, Aliens A; Cunningham's Law Dictionary (1759) s. V. Aliens, citing 1 Vent. 422.
35 Miller v. Rogers, 1 Car. & K. 390 (1844).
36 See In re Page, In re Krausmann, In re Wohlgemuth, supra, note 26. See also Petition of Drysdale, 20 Fed. (2d) 957 (1927).
37 In re Fitzroy, 4 Fed. (2d) 541 (1925); see similar dictum in In re Lynch, 31 Fed. (2d) 762 (1929).
38 3 Peters 242, 246 (U. S. 1830).
39 P. 246.
40 P. 248.
41 See cases cited supra, note 25.
42 In re Lynch, 31 F. (2d) 762 (S. D. Cal. 1929); In re Fitzroy, 4 F. (2d) 541 (D. Mass. 1925); Pequignot v. Detroit, 16 Fed. 211 (1883).
43 Stat. L. 1496.
44 Supra, note 19.
45 Supra, pp. 401, 402, 408.
46 10 Op. Atty. Gen. 321.
47 15 Op. Atty. Gen. 599.
48 12 Ibid., 7.
49 13 Ibid., 128.
50 Opinion of Att. Gen. to Sec. Labor, Aug. 3, 1933 in re citizenship of Mrs. Marion Thorgaard.
51 9 Barb. 35 (N. Y. 1850).
52 Ibid., pp. 49-50.
53 203 App. Div. 239, 196 N. Y. S. 864 (1922).
54 Ibid., 241-2. U. S. v. Reid, 73 Fed. (2d) 153 (C. C. A. 9th, 1934), 19 Minn. L. R. 589, holds that naturalization of an American-born father in Canada, naturalized his minor American-born daughter, and that her Canadian nationality was obtained by that naturalization and not by her subsequent marriage to a Canadian.
55 32 Fed. (2d) 911 (1929). Norway is a country with which the United States has a naturalization treaty. This fact was not referred to by the court.
56 See cases supra, note 26.
57 56 Fed. 556 (1893).
58 Ibid., 558.
59 Supra, pp. 401, 402
60 56 Fed. 556, at 561.
61 16 Fed. 211 (1883).
62 Ibid., at 216.
63 85 Fed. 801 (1898).
64 104 Fed. 947 (1900).
65 See Borchard, Diplomatic Protection of Citizens Abroad, Sees. 326-328.
66 Van Dyne, 133; Moore's Digest, III, 449.
67 Supra, pp. 400,401.
68 For. Rel. 1873, pt. 2, p. 1187.
69 For. Rel. 1874, pp. 408,413.
70 Moore's Digest, III, 451.
71 Moore's Digest, III, 453.
72 Ibid.
73 Sec. Bayard to Mr. Hall, Jan. 6, 1887, For. Rel., 1887, p. 92, Moore's Digest, III, 451.
74 For. Rel., 1890, p. 301, Moore's Digest, III, 454.
75 Van Dyne, Citizenship, p. 137.
76 Sec. of State Hay to Mr. Mesa, Dec. 2, 1898, Van Dyne, 137.
77 Mr. Olney to Mr. Morton, Oct. 26,1895, Van Dyne, 138.