¹ This definition, as declaratory of the common law, had been earlier enacted into statute: Act of April 9, 1866, 14 Stat. 27; R. S. 1992; Comp. Stat. 3946; 8 U. S. C. A. 1.

² 42 Stat. 1022; 8 U. S. C. A. 9; Comp. Stat., Sup. 1923, 4358, a–d, 3961, a, b.

³ 46 Stat. 1511; 8 U. S. C. A. 9.

⁴ Solicitor, Dept. of State, March 15, 1932.

⁵ Sec. 3, Act of March 2, 1907, 34 Stat. 1228; Comp. Stat. 3960. Repealed Sec. 7, Act of Sept. 22, 1922, 42 Stat. 1022, 8 U. S. C. A. 9.

⁶ Printed in this Journal, Vol. 10 (1916), p. 165.

⁷ Ibid., Vol. 8 (1914), p. 665.

⁸ Solicitor, Dept. of State, May 18, 1931.

⁹ 42 Stat. 1022, 8 U. S. C. A. 9, Comp. Stat., Sup. 1923, 4358a–4358d, 3961a, 3961b.

¹⁰ 10 Stat. 604; R. S. 1994, Comp. Stat. 3948.

¹¹ 46 Stat. 854, 8 U. S. C. A. 369.

¹² U. S. v. Humphrey (C. C. A. Tex. 1928), 29 F. (2d), 736; Petition of Zogbaum (D. C. S. D. 1929), 32 F. (2d), 911; ln re Bye (D. C. N. Y. 1930), 41 F. (2d), 857.

¹³ U. S. v. Martin (D. C. Wis. 1925), 10 F. (2d), 585; In re Pezzi (D. C. Cal. 1928), 29 F. (2d), 999.

¹⁴ Sec. 4 (a), Act of Mar. 3, 1931, 46 Stat. 1511; 8 U. S. C. A. 9, redacting Sec. 3, Act of Sept. 22, 1922, without reference to marriages to “ineligible” aliens, and adding Subd. (b), 8 U. S. C. A. 369a, and Subd. (c), 8 U. S. C. A. 368a.

¹⁵ Dicey, Conflict of Laws, 2d Ed., 181; 22 L. R. A. 148, note; Cockburn, Nationality Laws (1869), 11; Foote’s Private International Law (1927), 2, note (e), citing Co. Litt. 31b; Countess of Conway’s Case (1834), 2 Knapp P. C. 368; Countess de Wall’s Case, 12 Juris. 348.

¹⁶ It was decided, Beck v. McGillis (N. Y. 1850), 9 Barb. 35, that neither the marriage of a native-born woman to an alien, nor her residence in a foreign country, constitute her an alien. And see, House Doc. No. 326, 59th Cong., 2nd Sess., 1906–7, 151. In 1862, 10 Op. Atty. Gen. 321, in the case of Mrs. Preto, Attorney General Bates held that a native-born woman who married a Spanish subject, and who resided in Spain for a period of twenty years until her husband’s death, had not lost her native citizenship in the United States, despite her residence abroad.

¹⁷ Act of July 27, 1868, 15 Stat. 223, 8 U. S. C. A. 15, R. S. 1999, Comp. Stat. 3955.

¹⁸ Ruckgaber v. Moore (C. C. N. Y. 1900), 104 Fed. 947, affirmed without comment (1902), 114 Fed. 1021. Jennes v. Landes (C. C. Wash. 1897), 84 Fed. 73. Wallenburg v. Mo. Pac. Ry. (C. C. Neb. 1908), 159 Fed. 217: “The federal decisions are not uniform…. But I am clearly of the opinion that a woman citizen of the United States does not lose her citizenship by marriage to an alien, at least so long as she continues to reside in the United States.”

¹⁹ Solicitor, State Dept., Case of Emilie Stevenson Welhaven, Mar. 10, 1931.

²⁰ Idem, Feb. 3, 1931: “An American woman who was married to an alien prior to March 2, 1907, and who lost her American citizenship under the conditions mentioned, reacquired American citizenship if subsequent to termination of the marital status and prior to March 2, 1907, she resumed a permanent residence in the United States. From March 2, 1907, until Sept. 22, 1922, the conditions under which American citizenship could be resumed by such a woman were governed by the provisions of Section 3, Act of March 2, 1907. This section was repealed by the Act of Sept. 22, 1922.”

²¹ In re Chamorra (D. C. Cal. 1924), 298 Fed. 669.

²² U. S. ex rel. Paolantonio v. Day (C. C. A. 2nd, 1927), 22 F. (2d), 914; U. S. ex rel. Markin v. Curran (C. C. A. 2nd, 1925), 9 F. (2d), 900.

²³ Petition of Drysdale (D. C. Mich. 1927), 20 F. (2d), 957.

²⁴ Ex parte Ng Fung Sing (D. C. Wash. 1925), 6 F. (2d), 670.

²⁵ “One is inclined to ask what demand there was for such a drastic change in the laws of the United States and a reversion in effect to the original common-law rule.” J. S. Beeves, 17 this Journal (1923), 97.

²⁶ Ex parte Ng Fung Sing (D. C. Wash. 1925), supra. U. S. v. Humphrey (C. C. A. Tex. 1928), 29 F. (2d), 736.

²⁷ This view of the common, law was in part adopted by the district court of Massachusetts in Re Fitzroy, supra, with the qualification that during coverture the native woman’s citizenship was in abeyance. Stronger agreement with the view stated was announced by the Supreme Court in MacKenzie v. Hare, supra, as follows: “The general doctrine of the common law is that no person can by any act of their own without the consent of the government, put off their allegiance, and become aliens.” 2 Kent, 14th ed., 49. Beck v. McGillis (N. Y. 1850), 9 Barb. 35; 10 Op. Atty. Gen. 321; Atty. Gen. Rep. Mass. (1920), 260; 3 Moore’s Dig. Int. Law, 454–6.

²⁸ See In re Fitzroy, supra, citing Moore v. Tisdale (1845), 44 Ky. (5 B. Mon.), 352; Roa v. Insular Collector of Customs, 23 Philippine, 315.

²⁹ Stein v. Fleischmann Co. (D. C. N. Y. 1916), 237 Fed. 679, 682, is also in agreement with this view.

³⁰ ln re Krausmann, supra; italics in quotation supplied.

³¹ This is urged despite the wording of Sec. 3 of the Expatriation Act that “any American woman who marries a foreigner shall take the nationality of her husband.” It was early held by the Supreme Court, in construing a statute relating to married women, that the terms “marriage,” and “who shall be married,” do not refer to the time when the ceremony was performed, but to the “state of marriage”: Kelly v. Owens (1868), 7 Wall. 496, 19 L. Ed. 283; (1874), 14 Op. Atty. Gen. 403. The considerations of public policy on which the Supreme Court upheld the Act of 1907, in Mackenzie v. Hare, would seem to apply with equal force to marriages contracted before 1907, as to those contracted thereafter, although decision only as to the latter was entered.

Adherence to this view would remove the inconvenience, not to say the impossibility, of reconciling the conflicting opinions of the courts expressed before 1907, as to the effect of a native woman’s marriage to an alien; and remove the judicial disagreement which has developed since 1922 in determining which rule defined the weight of authority. Similarly, if it be thus definitely determined that a native-born woman, who married an alien before 1907, lost American nationality by reason of the continuance of the marital status thereafter, the provisions of Sec. 4 of the Act of Sept. 22, 1922, providing for the naturalization of former women citizens, would be exclusive in announcing the manner by which citizenship lost through marriage can be regained.

³² Sec. 9, Act of March 2, 1929, adding Sec. 33 to the Act of June 29, 1906, 45 Stat. 1515, 8 U. S. C. A. 399c (a); effective July 1, 1929.

³³ Sec. 3, Act of Sept. 22, 1922, 42 Stat. 1022, 8 U. S. C. A. 9, adopting as rule of expatria^ tion the provisions of Sec. 2, Act of March 2, 1907, 2d paragraph thereof, 34 Stat. 1229, 8 U. S. C. A. 17; Comp. Stat. 3959.

³⁴ Solicitor, State Department, March 15, 1932.

³⁵ 46 Stat. 854; 8 U. S. C. A. 9. And see (1927) 35 Op. Atty. Gen. 351.

³⁶ Sec. 2, Act of March 2, 1907, 1st par., supra.

³⁷ The Act of July 2, 1932, Session Laws, p. 571, 8 U. S. C. A. 369b, added to the above section the explanation that for the “purposes of this Section [Sec. 3-b, Act Mar. 3, 1931], women born in Hawaii prior to June 14, 1900, if residing in the United States on July 2, 1932, shall be considered to have been citizens of the United States at birth.”

³⁸ Kelly v. Owen (1868), 7 Wall. 496, 19 L. Ed. 283; Leonard v. Grant (C. C. Ore. 1880), 5 Fed. 11; U. S. v. Kellar (C. C. Ill. 1882), 13 Fed. 82.

³⁹ The term “who might herself be lawfully naturalized,” was held to have reference to the racial limitation of general naturalization provisions only, and not to authorize or require the qualification of the wife as to other legal requirements of naturalization, involving considerations of character, residence, etc.: Kelly v. Owen, supra; Leonard v. Grant, supra; Burton v. Burton (1864), 40 N. Y. 373, 1 Keys 359; Kane v. McCarthy (1869), 63 N. C. 299.

⁴⁰ Moore, Digest of International Law, III, 487.

⁴¹ Diplomatie Protection of American Citizens Abroad (1922), 595.

⁴² Burton v. Burton, supra, cited with approval, Kelly v. Owen, supra; Ware v. Wisner (C. C. Iowa, 1883), 50 Fed. 310; Kane v. McCarthy, supra; Halsey v. Beer (1889), 52 Hun. 366, 5 N. Y. S. 334; (1874) 14 Op. Atty. Gen. 402.

⁴³ In re Rustigian (C. C. R. 1.1908), 165 Fed. 980.

⁴⁴ Ex parte Kaprielian (D. C. Mass. 1910), 188 Fed. 694. Ex parte Leong Shee (D. C. Cal. 1921), 275 Fed. 364: “There is no provision of law authorizing the alien wife of either a native-born or naturalized citizen, to enter this country as a matter of right.”

In re Rustigian is strongly criticized by Atty. Gen. Wickersham (1909), 27 Op. Atty. Gen! 507; and the rule is dissented to in later opinions of the Attorney General: Case of Jebran Gossim, 1910, 28 Op. Atty. Gen. 504; (1920) 32 Op. Atty. Gen. 209. In 1923 the Attorney General held that although an alien woman had previously been deported for immorality, her marriage to an American citizen abroad, before Sept. 22, 1922, entitled her to entry as an American citizen : 33 Op. Atty. Gen. 398. The one federal court decision supporting this view, decided favorably on two cases of alien women, married to citizens abroad, as to right of entry, although otherwise within excluded classes: U. S. ex rel. Nicola v. Williams (D. C. N. Y. 1909), 173 Fed. 626, affirmed, In re Nicola (C. C. A. 2nd, 1911), 184 Fed. 322.

⁴⁵ Sprung v. Morton (D. C. Va., 1909), 182 Fed. 330, reversed on the ground that the district court was without jurisdiction to discharge the petitioner from custody, U. S. v. Sprung (C. C. A. 4th, 1910), 187 Fed. 903; Hopkins v. Fachant (C. C. A. 9th, 1904), 130 Fed. 839; Ex parte Grayson (D. C. Wash. 1914), 215 Fed. 449; U. S. ex rel. Sejnensky v. Tod (C. C. A. 2nd, 1922), 285 Fed. 523; (1909) 27 Op. Atty. Gen. 507, considering the question of fraudulent marriage to avoid deportation, p. 578. But contra, note Ex parte Kaprielian, supra.

⁴⁶ This provision is a construction by Congress that, without the enactment, such a marriage would make the woman a citizen, and prevent her deportation: U. S. ex rel. Sejnensky. v. Tod, supra. Deportation under this provision was inforced in Ex parte Bigney (D. C. Ore. 1923), 285 Fed. 669; Ex parte Flores (D. C. Ariz. 1921), 272 Fed. 783.

⁴⁷ The naturalization of the husband after September 22, 1922, is ineffective to confer citizenship upon an alien wife: U. S. ex rel. Markin v. Curran, as Commr. of Imm. (C. C. A. 2d, 1925, 9 F. (2d), 900, certiorari denied, 270 U. S. 647,46 S. Ct. 348,70 L. Ed. 779.

⁴⁸ Anna Marie Maney v. U. S. (1928), 278 U. S. 17, 73 L. Ed. 156, 49 S. Ct. 15, affirming (C. C. A. Wis. 1927), 21 F. (2d), 28, reversing (D. C. Wis. 1926), 13 F. (2d), 662.

⁴⁹ In re Colorossi (D. C. Wash. 1923), 292 Fed. 862: “An alien woman, the wife of an alien, is not eligible without a previous declaration of intention.”

⁵⁰ U. S. v. Schwimmer (1929), 279 U. S. 644, 73 L. Ed. 889, 49 S. Ct. 448, reversing (C. C. A. 111. 1928), 27 F. (2d), 742.

⁵¹ In re Attyah (D. C. Ga. 1926), 12 F. (2d), 323. The applicant cannot anticipate the admission to citizenship of her husband: In re Colorossi, supra. Unreported, In re Rosa Magdowitz (D. C. Tenn.) Sept. 26, 1927. Contra, In re Kontos (D. C. Ala. 1925), 12 F. (2d), 134.

⁵² 42 Stat. 1022; 8 U. S. C. A. 368.

⁵³ See. 5, Act of Sept. 22, 1922, provided : “No woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marital status.” 42 Stat. 1022, 8 U. S. C. A. 370.