Mr. Hay to Mr. Conger.
Washington, February 5, 1903.
Sir: I have to acknowledge the receipt of your dispatch No. 1169, of December 11 last, requesting the opinion of the Department respecting the status of Chinese and Japanese women married to American citizens.
The views expressed in your letter of December 11, 1902, to the United States vice-consul at Hankow as to the status of Chinese and Japanese women married to citizens of the United States are correct.
The clause in section 1994 of the Revised Statutes, “and who might be lawfully naturalized,” is designed to exclude women not eligible to naturalization under the general statutes of the United States from the operation of the general rule that marriage confers upon the woman the citizenship of her husband. The question has formed the subject of judicial decision in the United States. Mr. Justice Field in delivering the opinion of the Supreme Court of the United States in the case of Kelly v. Owen (7 Wallace, 496) said: “The case turns upon the construction given to the second section of the act of Congress of February, 1855, which declares that ‘any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a citizen of the United States shall be deemed and taken to be a citizen of the United States.’ As we construe this act, it confers the privilege of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of Congress provide. * * * The terms ‘who might lawfully be naturalized under the existing laws’ only limit the application of the law to free white women. The previous naturalization act existing at the time only required that the person applying for its benefits shall be a ‘free white person’ and not an alien enemy.”
A similar construction was given to the act by the court of appeals of New York in Burton v. Burton (40 New York, 373).
As indicated by you in your letter to the vice-consul, the citizenship of legitimate children born abroad follows that of the father under our statute.
I am, etc.,