APPENDIX A. (See Question 331.) MEMORANDUM FROM THE FOREIGN OFFICE. The nationality of a State can be generally acquired in four ways :(1) by birth on its soil; (2) by descent from a parent who was a national thereof (generally, but not always a father); (3) by naturalization; and (4) by marriage to a national (generally, but not invariably, a husband — in one or two countries, such as Brazil and Japan, nationality can be acquired in certain special circumstances by marriage to a Brazilian or Japanese wife). The fact that nationality through marriage can in general be acquired only by a woman is due of course to the general principle of law, hitherto in force in almost all civilized countries that the status of a wife depends in all matters upon that of her husband; and it is consequently found that the principle that the nationality of a married woman depends upon that of her husband has been adopted by all the States whose nationality laws are known to the Foreign Office, with very few exceptions. In the case where a foreign woman marries a national of the country the only States who do not adopt this principle, either wholly or in part, are the United States, Argentina and Chile. In the United States by the so-called "Cable Act" of September 22, 1922, it is enacted that "any woman who marries a citizen of the United States shall not become a citizen by reason of such marrage; but if eligible to citizenship she may be naturalized upon full and complete compliance with all the requirements of the naturalization laws, with the following exceptions: "(a) no declaration of retention shall be required; "(b) In lieu of the five-year period of residence within the United States and the one-year period of residence within the State or Territory where the Naturalization Court is held she shall have resided continuously in the United States, Hawaii, Alaska or Porto Rico for at least one year immediately preceding the filing of the petition." The law of Argentina is to the effect that "a married woman follows the nationality of her husband as regards the exercise of civil rights, but keeps her own nationality in the political sense," so that the foreign-born wife of an Argentina citizen, though amenable to the jurisdiction of the Argentine courts, does not possess the political rights of Argentine citizenship and is considered to retain her original foreign nationality. Chilean law states that a foreign-born woman upon marriage with a Chilean citizen does not thereby acquire Chilean citizenship, and such a woman is apparently considered as an alien for all purposes. The laws of Serbia and Ecuador, while accepting the general principle that the status of a married woman depends upon that of her husband, make the following exceptions thereto. Serbian law states that "a foreign woman who has married a Serbian shall follow the condition of her husband as regards her civil rights in all cases where the foreign power gives the same rights to a Serbian woman who has married one of its subjects," with the result that the wife of a Serbian who, for example, was a United States citizen before her marriage would not be regarded as a Serbian subject although al nost any other foreign-born wives would be so regarded. Again, in Ecuadorian law "the wife of an Ecuadorian, if a foreigner, follows the nationality of her husband if she establishes her domicile in her husband's country," but not otherwise. With these exceptions all countries accept the principle stated above while the marriage is actually in existence, though, as will be mentioned later, the position of widows and divorced women is the subject of special provision in the laws of many countries. In the converse case where a woman who was a national of a country marries a foreigner, there are more exceptions to the rule that she follows her husband's status, in view of the fact that most States are anxious to secure as many subjects as possible, so that, while claiming jurisdiction over the wives of their citizens they are often averse to abandoning jurisdiction over those of their female citizens who marry foreigners. Nevertheless the rule in this case is accepted by all countries except the United States, Argentina, Belgium, Brazil and Chile, and possibly Uruguay and Venezuela. In the case of the United States, the Cable Act states "that a woman citizen of the United States shall not cease to be a citizen by reason of her marriage unless she makes a formal renunciation of her citizenship before a Court having jurisdiction over naturalization of aliens; provided that any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen. If at the termination of the marital status she is a citizen of the United States she shall retain her citizenship regardless of her husband's. If during the continuance of the marital status she resides continuously for two years in the foreign state of which her husband is the citizen or subject, or for five years continuously outside the United States, she shall thereafter be subject to the same presumption as is a naturalized citizen of the United States under the second paragraph of section 2 of the Act, entitled "an Act in reference to the expatriation of citizens and their protection abroad approved March 2, 1907" (this presumption being that United States citizens expatriated for the periods named have lost their United States citizenship). In Argentine law the logical corollary of the principle stated above in connection with the foreign-born wives of Argentine citizens applies also to Argentine women who marry foreigners, who are regarded as "entitled to succour and aid as Argentine citizens from the representatives of the Republic" although they follow the nationality of their husband as regard the exercise of civil rights. In Belgium the law of May 15, 1922, while leaving intact the principle that a foreign woman married to a Belgian becomes Belgian forthwith, enacted that “a Belgian woman who married a foreigner of a determined nationality loses as heretofore her Belgian nationality if her husband's nationality is acquired by her according to the law of his country, but she may retain her Belgian nationality if she is of Belgian origin by making a declaration within six months of her marriage either before the Civil Registrar of the town in which she is domiciled in Belgium or before the diplomatic or consular agents of Belgium abroad," and that "a Belgian woman who marries a foreigner of no fixed nationality remains Belgian." In Brazil the position is peculiar, in that all questions of Brazilian nationality are governed by the Constitution, which does not specifically mention the status of women, whether Brazilian or foreign, who contract mixed marriages, so that Brazilian women married to foreigners retain their Brazilian citizenship, not because there is a clause in the Constitution to that effect, but because marriage with a foreigner is not one of the cases in which, according to its provisions, Brazilian citizenship is lost. In fact in certain circumstances a foreigner marrying a Brazilian wife acquires her nationality automatically unless he makes a legal declaration to the effect that he wishes to retain his original allegiance. On the other hand, however, foreign women married to Brazilians are in practice considered as Brazilians, although there are no provisions for this in the Constitution. In Chilean law Chilean nationality is not lost upon a woman's marriage with a foreign subject, as according to the Constitution it can be lost solely by soliciting naturalization papers in other countries. In the doubtful case of Uruguay, while there is no enactment as to the status of married women either in the Constitution or in any statute, paragraph 8 of the Constitution, which refers to "children born abroad of a father and mother born in the country," seems to recognise the possibility of children having a mother of Uruguayan nationality the father being a foreigner, as it seems unlikely that the object of the clause was to provide for the case of illegitimate children of a Uruguayan mother; and a doctrine used to be taught at the University of Montevideo that a Uruguayan woman does not in any case lose her nationality. But on the other hand cases have occurred where the Uruguayan Government had admitted diplomatic representations on behalf of a Uruguayan woman married to a foreigner, which seems to show that in practice the general rule would be held to prevail. Similarly in Venezuela, although the terms of the Constitution of 1910 would appear to follow the usual principle, a case has recently occured where a Venezuelan woman married to a foreigner has requested a British visa on a Venezuelan passport and stated that she is still regarded as Venezuelan ; and enquiries are now being made as to the present state of the Venezuelan law on this subject. The laws of Ecuador, France, Italy, Mexico, Portugal, Serbia, Siam and Sweden, while recognising the general principle that the national-born wife of a foreigner acquires his nationality on marriage, provide that she shall not lose her original nationality if she does not acquire that of her husband, under the law of his country. Thus a French or Italian woman would lose her nationality if she were married to a British subject, but if married to a United States citizen she would not cease to be French or Italian. It will thus be seen that exceptions to the general rule that a woman acquires her husband's nationality on marriage are practically confined to the laws of the United States and some South American countries; in so far as the period during which a marriage is in existence is concerned. Nearly every State, however, makes special provision for the re-acquisition of its nationality by the widows or divorced wives of foreigners either, as in this country, by a specially expeditious form of re-naturalization, or, as in South American countries, by provisions that they re-acquire such nationality automatically if domiciled in their country of origin, while Venezuelan law applies the same principle to the converse case of foreign women married to Venezuelans, who can only retain their Venezuelan citizenship after the dissolution of the matrimonial bond if they make a special declaration for the purpose. Netherlands law also provides that "a married woman possesses during coverture the nationality of her husband," leaving it to be presumed (although information has been called for on this point) that she is not held to possess his nationality after his death or after the marriage has been dissolved for any reason. The present principle recognised in English law that the wife of a British subject is a British subject and the wife of an alien is an alien is thus in accordance with that accepted by nearly all other countries (though with modifications in some cases), and avoids conflicts of jurisdiction with the laws of these countries. Already the promulgation of the Cable Act in the United States has caused serious enbarrassment to His Majesty's Government in the matter of passport facilities, since the United States authorities now refuse to grant United States passports to the foreign wives whom their citizens marry abroad and who consequently cannot become American citizens until they have resided in the United States, whither, however, they cannot proceed without some document of identity and nationality. His Majesty's Government have felt obliged to decline to recognise any obligations towards persons who are aliens in English law, and have been unable to grant them any form of British travel documents, in view of the fact that in English law the wife of an alien is an alien. The United States legislation of course affects not only women of British origin but all foreign-born wives of United States citizens. His Majesty's Government have, however, following a suggestion from the United States Consul-General in London, informed the United States Government that, although they would have the right to refuse to recognise any documents issued to these persons except regular United States passports, they will be prepared, as a special concession, to recognise affidavits made by the persons concerned before the United States authorities if they are in a form which will satisfy iminigration officers as to the identity of their holders and if the United States Government will give an assurance that they will be visé by United States Consuls for the return of their holders to the United States whenever required. To this proposal the United States Government have replied that American consuls abroad have authority to viser the affidavits of persons unable to obtain national passports; and, further that persons returning from temporary visits abroad would not be excluded from the United States by the operation of the United States Immigration Act merely because their quota is exhausted, and that this provision will be applied in a liberal spirit in the case of alien wives of United States citizens. On the other hand, however, as women in this position are aliens in the eyes of the American law they are required to comply with the visa regulations and the immigration laws of the United States, and the United States Government therefore find themselves unable to give any definite assurance that they will be re-admitted to the country. This reply is now under consideration by the British authorities concerned, who are faced with the danger that if the proposals are accepted and the Britishborn wives of the United States citizens are allowed to travel to the United Kingdom or to any other part of the British Empire on affidavits in lieu of passports, they may be refused admission to the United States on medical or other grounds, in which case they would be returned to that part of the Empire from which they came, where they might conceivably become public charges. Similar difficulties have arisen in connection with the provision of passports for the British-born wives of Chilean citizens. In general, the operation of the principle embodied in the Cable Act in countries with strict immigration regulations, such as the United States, Chile or Argentina, is likely to give rise to serious difficulties both from the point of view of the foreign States whose nationality was originally possessed by the wives of their citizens, and from that of those citizens themselves, whose families are in danger of permanent division and separation. A more serious objection to any abandonment of the present principle is the fact that the logical alternative thereto would seem to be the adoption of the principle that nationality is independent of marriage. If a wife does not acquire the nationality of her husband, there seems no reason why the children of the marriage should possess the nationality of their father rather than that of their mother; and indeed indications are not wanting that this will be the eventual result of the movement for the modification of the existing law. The consequence of this will be that the child of a mixed marriage will pos ess dual, or in some cases even triple, nationality, and in view of the serious hardships already caused by the status of dual nationality in connection with such matters as liability to military service, so serious an extension of that status would be viewed in the Foreign Office with grave apprehension. FURTHER MEMORANDUM FROM THE FOREIGN OFFICE. We were asked by the Committee to ascertain (1) whether United States of America legislation prior to 1907 provided that the American-born wife of a foreigner retained on marriage her nationality of origin; and if so, whether this provision gave rise to any important correspondence or difficult questions between His Majesty's Government and the United States Government and (2) whether the British legislation prior to 1870 which provided that a British-born woman retained her British nationality on marriage with a foreigner involved His Majesty's Government in any complications with foreign states. The annexed memoranda 1 and 2 (see pages 173 and 174) contain such information as the Library of this department have been able to produce after examination of the relevant records on these two points. It will be seen from these memoranda that while the legislation in force in the United States of America up to 1907 and in this country up to 1870 did not specifically deprive the native-born woman of her nationality of origin on marriage with a foreigner, it was interpreted in both countries as implying that native-born women married to foreigners in practice acquired their husbands' nationality during the period of their joint married life. It enabled them, however, at any rate when resident in their country of origin, to resume automatically their nationality of origin on cessation of the normal conditions of married life. It is no doubt in consequence of this interpretation of the existing legislation that no important correspondence or difficult questions of dual nationality, etc., arose between the two governments or with other foreign governments; and it is difficult to avoid the conclusion that it was due to the soundness of the principle and to the convenience and expediency of the practice on which this interpretation of the earlier legislation in these two countries was based that in 1870 in this country and in 1907 in the United States of America it was enacted that a native-born woman marrying a foreigner definitely acquired her husband's nationality. This conclusion is borne out by the view expressed in the report of the Royal Commission for inquiring into the Laws of Naturalisation and Allegiance of 1869, which I quoted in my evidence before the Committee: viz., that "It is inexpedient that British law should maintain in theory or should by foreign nations be supposed to maintain in practice, any obligations which it cannot enforce, and ought not to enforce if it could; and it is unfit that a country should remain subject to claims for protection on the part of persons who so far as in them lies, have severed their connection with it." The principle embodied in this view was then applied, in the report, to the case of "a woman who being a British subject shall become by marriage with an alien the subject or citizen of a foreign State." To the third and fourth questions asked by the Committee as to whether a legislative measure in the nature of the Cable Act is at present under consideration in France and has been submitted to the Senate and as to the exact meaning in the Cable Act of the term "alien ineligibility to citizenship" we are not yet able to reply as we have had to refer these questions to our Embassies at Paris and Washington respectively. We will communicate their answers to you as soon as they reach us. There remain the four further questions of Sir John Butcher which are embodied in your letter of the 18th. I give them below for convenience of reference, with the replies in each case. 1. Was there a law passed in America in or about 1855 which enacted that an alien woman became an United States of America citizen on her marriage to a citizen of that country? Yes. Section 1994 of the United States Act of 10th February, 1855, provides that:-Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalised, shall be deemed a citizen. 2. Was there a law passed in America in 1907 which enacted that a female citizen of the United States of America should become an alien on marrying an alien? Yes. Section 3 of the Act of 2nd March, 1907, provides that:-Any American woman who marries a foreigner shall take the nationality of her husband. 3. Were the above-mentioned statutes repealed by the Cable Law? The Cable Act repealed these particular sections in its sections 6 and 7. 4. What year did France and Italy and some other countries amend their existing laws so as to enact that, when one of their female citizens lost her own nationality by marrying an alien, that citizen could regain her own nationality if the law of the country into which she married did not admit her as a citizen, but left her stateless? Examination of the foreign laws available in this department shows the following cases where such au amendment was made : France.-Law of 26th June, 1889, article 19. Portugal.-Law of 1st July, 1867, article 22 (4). Serbia.-Civil Code (date not given, but apparently about 1869), article 48. Ecuador.-Law of 23rd August, 1892, article 21. There is, however, Mexico.-Law of 12th December, 1892, article 11 (4). |