Mr. Foster to Mr. Thompson.
Washington, February 9, 1893.
Sir: I have received your No. 12, of the 7th ultimo, in which you report that in view of the Department’s instruction, No. 18, of the 15th December last, in relation to the coming to the United States of the family of Hachik M. Michaelian, a naturalized citizen of the United States, and having satisfied yourself of Mrs. Michaelian’s intention to come immediately to the United States to join her husband, you have issued to her a passport.
Your action in this regard would appear to have exceeded the instructions contained in the Department’s No. 18. In authorizing you to use your good offices to secure permission for Mr. Michaelian’s family to leave Turkey, I contemplated your intercession, so far as might be practicable and proper, with the Ottoman authorities, whose inaction or prohibition was detaining Mrs. Michaelian and her children in Constantinople, at much expense and inconvenience to them.
The legislation of the United States in regard to naturalization (Title XXX, Revised Statutes) is silent as to the naturalization of an alien wife by the husband’s act in becoming naturalized. Section 1994 (under Title XXV, in regard to citizenship) 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 naturalized, shall be deemed a citizen.” The decision of the Supreme Court in the case of Kelly v. Owen et al. (7 Wallace, 496) is to the effect that the concurrence of the fact of marriage with the fact of the husband’s citizenship, whether native or by naturalization, operates ipso facto to naturalize the wife, she being a free white woman (or under present legislation also a person of African descent).
It is to be noticed that this cited case, the three women, whose rights [Page 599] were under consideration, were in this country at the time of their respective marriages. The decision on its own recital applies to parties within the jurisdiction of the United States at the time of their becoming citizens by the existence of a state of marriage.
In an opinion, June 4, 1874 (Ops. Attys. Gen., xiv, 402), Attorney-General Williams, responding to inquiries put by Mr. Fish, then Secretary of State, recites the above opinion and also two others (one being a North Carolina decision), concludes that the authorities he cites “go to the extent of holding that, irrespective of the time or place of marriage or the residence of the parties, any free white woman, not an alien enemy, married to a citizen of this country, is to be taken and deemed a citizen of the United States.”
Although not questioning the doctrine thus broadly enunciated, yet in view of the obstacles to claiming for the laws, judicial decisions, and executive opinions of the United States effective validity beyond the jurisdiction of the United States, this Department prudently refrains from asserting its application to the case of an alien wife continuing within her original allegiance at the time of her husband’s naturalization in the United States, inasmuch as the citizenship of the wife might not be effectively asserted as against any converse claim of the sovereignty within which she has remained. The result would naturally be a conflict of private international law, wherein the State within whose actual jurisdiction the wife remains might be found to have the practical advantage of the argument.
As to the minor children of Mr. Michaelian, the case is clear. Section 2172 provides that the children of persons who have been duly naturalized under any law of the United States, * * * being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof. Mr. Michaelian’s minor children have, admittedly, never dwelt in the United States at any time; and, following the uniform decisions of this Department, are not entitled to passports as citizens of the United States. It does not, however, seem advisable at present to qualify your action as regards Mrs. Michaelian or to disapprove your certification of the citizenship of her minor children, for it may very probably turn out that your issuance of the passport in question will have resulted in permission for their departure from Turkish jurisdiction, and in such case it would be impossible for this Government to restore any of the parties to Ottoman control, even were the issuance of the passport admitted to be an excess of authority on your part.
Should the Turkish Government, however, contest the evidence of your passport, your good offices to present the equities of the situation would have to be reverted to, as originally contemplated in my instruction, No. 18, of December 15, 1892. If a favorable result be not attainable you should content yourself with referring any Turkish counterclaim to the Department for instructions.
I am, etc.,