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tives of foreign governments are not subject to the jurisdiction of the United States, and their children, even though born in this country, therefore are not American citizens.

A child born abroad of an American father also is a citizen of the United States.

Many persons become Americans by naturalization. There are instances of group naturalization by treaty. Most naturalization, however, results from individual petition. The naturalization of an alien man also naturalizes his minor children. It used to naturalize his alien wife too, but now she does not have to become a citizen unless she wishes to do so. Marriage with an American formerly naturalized a foreign woman, but marriage no longer is a naturalization process.

Most of the States require that a person be a citizen of both the United States and the State wherein he resides, before he is permitted to vote. This, however, is not always necessarily true. Whether or not this requirement is prescribed is entirely up to the individual States.

The cases of Susan B. Anthony and Virginia Minor brought to light the true facts—women citizens were denied the right to vote by State statutes, and the courts afforded them no relief. After these decisions were handed down, the campaign for equal suffrage began in earnest. Miss Anthony drafted an amendment to the Constitution of the United States, and it was first introduced in Congress as a resolution by Senator A. A. Sargent in 1878.

For years thereafter determined women conducted a valiant struggle in Washington. But Congress was slow to act, and the results were discouraging. Meantime the women became active in all the State capitals, and in time 12 of the 48 States-Arizona, California, Colorado, Idaho, Kansas, Montana, Nevada, New York, Oregon, Utah, Washington, and Wyoming one by one granted women the right to vote. Finally the campaign gained great momentum, its influence became national in scope, and at last the nineteenth amendment to the Constitution of the United States was ratified in 1920. That amendment declares:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

While American citizenship is governed and regulated by the United States, the requirements for voting are, with the exception of the limitation laid down by the 15th and 19th amendments, exclusively prescribed by the individual States.

In the nineteenth amendment women had won another great victory. There still remained in our laws, however, many discriminations against them. Outstanding among these was the husband's predominance in matters of citizenship or nationality. After the nineteenth amendment was ratified, the husband still had the right, either by refusing to change his citizenship or by adopting a new one, to decide not only whether he, but also whether his wife should be a citizen of this country or of some other country. A married woman had absolutely no choice; in this matter she was still bound by her husband's will.



The rule that the wife should take the citizenship of her husband is said to be traceable to the Code of Justinian. However that may be, from 1350 down to the middle of the nineteenth century, the common law of England gave married women a citizenship identity entirely separate and apart from that of their husbands. If an alien woman married a British subject, that marriage did not change her nationality; nor did marriage with a foreigner operate to deprive an English woman of her native citizenship.2

For nearly 80 years after the Declaration of Independence the English common law on this subject was followed in entirety by the courts in the United States. Marriage under the common law of this country also was not a naturalization process for the alien woman who married an American citizen. This point was decided in the case of Mick v. Mick, which arose in New York in 1833.3

There an alien woman, a native of Ireland, had married an American citizen in 1805. The man bought a farm in 1823. In 1830 he died, providing in his will that the farm should be the property of his wife. The law of New York at that time prohibited an alien from receiving real estate by will. In 1833, a son brought suit as one of his father's legal heirs to recover a one-ninth interest in the farm. The court held that the mother did not become an American citizen by virtue of her marriage to an American, and that the native-born son was entitled to the interest he claimed.

Further evidence of a married woman's citizenship independence under the common law lies in the fact that an alien married woman was permitted to become a naturalized American on her own petition, whether or not her husband wished her to become naturalized or to become naturalized himself.4

On the other hand, the courts held that under the common law marriage with a foreigner was not sufficient to expatriate an Americanborn woman, even though she went to reside with her alien husband in his native land. That was decided in Beck v. McGillis, which also came up in New York. John Caldwell, an American citizen, died in 1848, willing certain real estate to his American-born daughter, Eliza, who had married a Canadian in 1836 and had resided in Canada with her foreign husband since that time. The court was confronted with the question whether Eliza, as legatee, could receive the land, or whether her marriage had made her an alien and therefore disqualified her under the laws of New York from holding real property in that State. The court decided in 1850 that "neither her marriage nor residence in a foreign country constitutes her an alien,” and permitted her to receive the land.

The common law rule giving married women separate citizenship was an outgrowth of the feudal system. That system was built on the personal relationship between the king and his lords, the lords and their underlords, the underlords and their tenants. Because the


1 Prof. J. S. Reeves, University of Michigan, 17 American Journal of International Law, 97, 98

Law of England with Reference to Conflict of Laws, A. V. Dicey, 1927 edition, pp. 174-175.
.3 Mick 0. Mick, 1833, 10 Wend. (N. Y.) 379.
- Priest o. Cummings, 1837, 16 Wend. (N. Y.), 617.

5 Beck v. McGillis, 1850, 9 Barb. (N. Y.), 35; accord—10 Op. of Atty Gen. 321 (1862, Atty. Gen. Edward Bates).





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strength of the system depended upon maintaining those relationships, a rule of law grew up denying any subject or citizen the right to expatriate himself. As Blackstone said:

It is a principle of universal law that the natural born subject of one prince can not by any act of his own, no, not by swearing allegiance to another, put off his natural allegiance to the former:

(he) may be entangled by subjecting himself absolutely to another

; (but) it is unreasonable that by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince.

The rule of separate citizenship under the common law was not a recognition of women's rights or a recognition of the dignity and individuality of a woman's citizenship. It was a rule of convenience only. And later, when circumstances had changed somewhat, the common law of convenience gave way to equally utilitarian statutory rules.

Marriage under the common law, then, did not affect a woman's citizenship. In one situation that rule was carried down in our law until after the beginning of the twentieth century. Until 1907 the American woman who married an alien and remained in this country after her marriage continued to be an American citizen whether her alien husband ever became naturalized or not. It was so held in 1896 in the case of Comitis v. Parkerson, which had arisen in Louisiana.? There an American-born woman had married an Italian immigrant by the name of Loretto Comitis in Louisiana in 1881. Mr. and Mrs. Comitis continued to live in Louisiana, having no intention at any time of going abroad to live. In 1891 Mr. Comitis was killed, and Mrs. Comitis sued Parkerson and the city of New Orleans for damages for Comitis' wrongful death. The case was taken into Federal court, and the question of the court's jurisdiction was raised. Had Annie Comitis become an alien because of her marriage, so that her case could be taken into the Federal court on the ground of diversity of citizenship?

The court held that an American woman in Mrs. Comitis' position could expatriate herself only by removal from the United States. Since she had never resided outside the United States, she had never ceased to be an American, and her petition in the Federal court was dismissed.

The same rule was laid down by Secretary of State Charles Evans Hughes in the case of Louise Gehring Marshall

, January 24, 1925. Louise Gehring was born in Cleveland, Ohio, April 26, 1862. Some years before 1900 she married an Englishman by the name of Marshall. Mr. and Mrs. Marshall continued to reside in the United States from the time of their marriage until 1925.

At that time Mrs. Marshall applied for an American passport, and it became necessary for the Department of State to decide whether Mrs. Marshall had been deprived of her American citizenship by her marriage to a subject of Great Britain. Mr. Hughes quoted the Supreme Court of the United States to the effect that 'a change of citizenship can not be arbitrarily imposed, that is, imposed without the concurrence of the citizen, 8 and held that in the absence of a statutory provision the American woman who married an alien before 1907 and continued to reside in the United States

Blackstone's Commentaries, Chase's 1927 edition, p. 117. Comitis o. Parkerson, 1896, 56 Fed. 556. . Mackenzie ». Hare, 1914, 239 U. S. 299.


did not because of her marriage cease to be an American citizen. Being a citizen, therefore, Mrs. Marshall was entitled to receive a passport, and it was issued to her forthwith.o

While marriage alone did not deprive an American woman of her birthright, it was possible for her to terminate her native citizenship under our law prior to the 1907 act. Such an expatriation is well illustrated in the early case of Shanks v. Dupont, decided in 1830.0 That case involved the settlement of the estate of Thomas Scott, citizen of South Carolina, and a citizen of the United States after the formation of the union. Thomas Scott's daughter, Ann, a native of South Carolina, married a British officer by the name of James Shanks during the British occupation of Charleston in 1781. When the British forces evacuated in 1782, Ann went with Shanks to England, and lived there with him until his death in 1801.

Mr. and Mrs. Shanks had five children, all of them born in England. These children claimed Ann's share of her father's estate in South Carolina. A question as to Ann's citizenship and the effect of her marriage on her nationality came up during the consideration of the

The court decided that neither Ann's marriage to a foreigner nor her removal to live with him in England had changed her citizenship. However, the fact that she had voluntarily participated in British affairs and had “adhered to the British side" had operated to deprive her of her native citizenship.

Despite Mrs. Shanks' expatriation, her children were permitted to enforce their claim and take possession of the land under the terms of the treaty of peace with Great Britain in 1794.

Before any statutes were enacted to control the decisions of the courts, therefore, it was a rule of the common law that marriage to an American or the naturalization of her alien husband before 1855 did not naturalize an alien woman. She was then permitted to be naturalized on her own petition. It has generally been held that where an American woman married an alien between 1789 and 1907 and continued to reside in the United States, she did not cease to be an American citizen." But our courts early permitted an American woman to expatriate herself if she elected to do so after marriage to an alien.

The rule of perpetual allegiance, then, had broken down. In fact, the reason for the rule had long since disappeared. In the middle of the nineteenth century our first statutes on this subject were enacted. Thereafter the law. was different. CHAPTER III. TREND TOWARD THE PRINCIPLE OF NATIONAL IDENTITY

During the nineteenth century the common law rule of separate citizenship for man and wife gave way to another rule of convenience. People were moving about more freely from one country to another, and that resulted in more frequent marriages between persons of different nationalities. Before 1800 a person could expatriate himself only if he or she first obtained the consent of his or her sovereign. It is an ancient principle of the Anglo-American law that citizenship is a compact between the individual and the sovereign, a mutual rela

• Louise Gehring Marshall case; memorandum, office of solicitor, Department of State, Jan. 24, 1925.

10 Shanks 0. Dupont, 1830, 3 Pet. (U. S.) 242; accord-12 Op. Atty. Gen. 7 (1866, Atty. Gen. Henry Stan • berry).

u Contra-Pequinot v. Detroit, 1883, 16 Fed. 211; in re Zogbaum, 1929, 32 Fed. 20, 911.

tionship that can not be terminated by one without the consent of the other. While there could be no expatriation, there are many instances where an individual would leave his or her native land, go abroad and swear allegiance to some foreign soverign. Such acts invariably resulted in double ailegiance or dual nationality. Embarrassing diplomatic controversies arose over dual nationality, and led to statutory changes in the law.

The first modern statute giving the wife the same citizenship as her husband, regardless of what her nationality may have been prior to marriage, or what her wishes in the matter may have been, was the Code of Napoleon, enacted in 1804. Article 12 of that code provided that the alien woman who married a Frenchman should thereby become a French citizen. Article 9 covered the reverse situation and stated that a French woman who married a foreigner should herself become a foreigner and assume her husband's nationality.

These provisions of the Napoleonic Code were widely adopted. During the nineteenth century and the first part of the twentieth, similar laws were enacted by Austria, Bolivia, Costa Rica, Cuba, Denmark, Dominican Republic, Germany, Great Britain, Italy, Mexico, Nicaragua, Portugal, Rumania, Russia, Spain, Sweden, and the United States.?

The rule of the English common law was first modified by the act of Parliament of August 6, 1844, declaring that the alien woman who married a British subject should acquire British nationality. Shortly afterwards the United States adopted a similar rule in the act of February 10, 1855, which provided:

Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.

After the passage of that act, the courts held uniformly that all alien woman became an American citizen upon marriage with an American whether he was a native-born or naturalized citizen of the United States. It was also held thereafter that the alien wife of an alien became a naturalized American through her husband's naturalization.

The operation of that statute came up in 1868 for consideration in in the case of Kelly v. Owen. That case settled a dispute with regard to partition of the estate of Miles Kelly, a native of Ireland, who had come to the United States in 1848, and who had married Ellen Duffy, an alien by birth, in 1853. Kelly died in 1862, leaving as his heirs his wife and two sisters. Kelly's sisters claimed the whole estate, arguing that Ellen Kelly, his wife, was an unnaturalized alien and therefore not entitled to share in it.

Kelly had been naturalized in 1856, and the question for the court to decide was whether or not Kelly's naturalization had made his wife Ellen a citizen also and entitled her to receive part of the estate. That Ellen had married Kelly prior to his naturalization and prior to

passage of the new act, the court said, did not matter. The terms of the act

referred to a state of marriage, rather than to the time when the marriage ceremony was celebrated. Thus, Ellen, an alien, had


! Cl. Williams Case, 1788, Wharton's State Trial, 602.

Nationality Laws, Richard W. Flourpuy, jr., and Manley 0. Hudson, 1929, Oxford University Press, New York.

17 Stats. L. 153; 7 and 8 Victoria, c. 66, XVI. * 10 U. 8. Stats. L. 604; R. S. Soc. 1994; cf. House Document No. 326, 59th Cong., for report on 1855 act; repealed by act of Sept. 22, 1922, Secs. 2 and 6. Kelly o. Owen, 1868, 7 Wall. (U. S.) 496.

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