File No. 132.22/3.
[Untitled]
Department of State,
Washington,
February 21, 1914.
To the Diplomatic and Consular
Officers of the United States in China.
Sir: The Department sends you herewith, for
your information, a copy of its instruction No. 16 of February 13, 1914,
to the Consul General at Shanghai concerning the status of Chinese women
and women partly of Chinese descent who are the wives or widows of
American citizens.
I am [etc.]
For the Secretary of State:
Wilbur J. Carr
.
[Inclosure.]
The Secretary of State
to Consul General Sammons.
No. 16.]
Department of State,
Washington,
February 13, 1914.
Sir: The Department has received from your
office despatch No. 785 of November 13, 1913,2 concerning Chinese wives or
widows of American citizens, with especial reference to the question
of their right to obtain passports of this Government and to be
registered in American consulates. You refer to the cases of women
partly of Chinese descent as well as those who are wholly Chinese.
In this connection you call attention to the provision of section
1994 of the Revised Statutes concerning the naturalization of alien
women by marriage to American citizens. The provision of law to
which you refer reads as follows:
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.
On January 20, 1914, the Department sent a copy of your despatch to
the Department of Labor for an expression of opinion as to the
status of women of the class mentioned, and I enclose herewith a
copy of a letter of January 28 in reply.
Because of the apparent lack of a judicial decision of the question
involved, and in view of the apparent opinion of the Department of
Labor, which has
[Page 6]
supervision
of naturalization matters, namely that women having a trace of
Chinese blood are not eligible to naturalization as citizens of the
United States, this Department can not authorize you to treat them
as such. Regular passports are not issued by this Government to
persons who are not citizens of the United States, and the
Department has not authorized the separate registration in
consulates of such persons. Accordingly you should not register
separately the wives or widows of American citizens if they have a
trace of Chinese blood. However, upon the same principle that
Chinese wives of American citizens are admitted into this country
with their husbands, they may be included in passports and
registration certificates issued to their husbands, and in case of
need they may be given the benefit of your unofficial good
offices.
I am [etc.]
For the Secretary of State:
Wilbur J. Carr
.
[Subinclosure.]
The Acting Secretary of
Labor to the Secretary of
State.
Department of Labor,
Washington,
January 28, 1914.
Sir: I have the honor to acknowledge the
receipt of your letter of the 20th instant,2 with which you transmit copy
of a despatch from the Consul General at Shanghai, asking for a
ruling as to the status of women of part Chinese blood who are
married to American citizens, particularly whether they may be
considered citizens of the United States under the provisions of
section 1994 of the Revised Statutes.
As I understand the case stated by the Consul General, two questions
are involved, one of which is a judicial question and cannot
therefore be determined by the executive branch of the Government,
and the other of which is administrative and can be determined, in
so far as a legal question is open to administrative determination
at all, by the executive branch.
- (1)
- As the power to naturalize aliens is vested in the courts, the
only manner in which an authoritative decision can be secured on
the question whether a person whose blood is partly white and
partly Chinese is a “free white person” within the meaning of
section 2169 of the Revised Statutes would be through the action
of a court with respect to an application filed by such a person
for naturalization. In this connection attention is directed to
the fact that under section 14 of the Chinese exclusion act of
1882 no court can legally naturalize a Chinese person, this
being a provision which is more specific in its terms than
section 2169 R. S. The exclusion laws, on the one hand, relate
to Chinese persons and persons of Chinese descent; while section
2169, on the other, relates to “free white persons.” It may be
seriously doubted whether the first term was not intended, so
far as naturalization is concerned at least, to include all
persons with Chinese blood, and the second to exclude all
persons not purely white, “white persons,” as the term has
always been understood in this country, meaning those with no
strain of colored blood in their veins.
- (2)
- The administrative question, to wit, whether a woman having
Chinese blood in her veins, but in whom the white blood
predominates, shall be regarded as admissible to the United
States under the Chinese exclusion laws, was carefully
considered by the former Department of Commerce and Labor on
several occasions, the holding uniformly having been that for
purposes of administering the law persons should be regarded as
other than of Chinese descent if the admixture of Chinese blood
is less than one-half. Of course, this question, being in its
final analysis one of law, could be decided in the courts, if
anyone feeling aggrieved at the Department’s position saw fit to
sue out a writ of habeas corpus; but so far all who have been
affected by the Department’s holding seem to have been satisfied
to abide by its decision.
Another proposition incident to this matter has heretofore operated
in such a way as to avoid embarrassment to the administrative
officers and at the same time has doubtless been partly responsible
for these questions not going before
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the courts. This consists of the fact that even
women of full Chinese blood who are married to American citizens are
regarded as admissible to the United States, notwithstanding the
provisions of the Chinese exclusion law, if admissible under the
provisions of the general immigration act, upon the theory that the
husband, an American citizen, has a right to have his wife with him
in the country of his citizenship, whatever her race may be; and
doubtless many women of the half or quarter blood have been admitted
upon the same theory without raising any question regarding their
legal status.
Of course, in this letter the question involved is treated upon the
basis of acquirement of citizenship by a naturalization proceeding,
upon the theory that an alien woman who cannot meet the conditions
imposed with respect to naturalization—a direct method of acquiring
citizenship—is not entitled to secure the status of a citizen by
marriage—an indirect method (Low Wah Suey v.
Backus, 225 U. S., 460, 473, 475).
Respectfully,