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Citizenship of Married Women

Published online by Cambridge University Press:  04 May 2017

Cyril D. Hill
Cyril D. Hill*
Affiliation:
Bar of the State of Washington
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Extract

Many recent comments have been made with respect to the wisdom of Congress in passing the Act of September 22,1922, entitled, “ An act relative to the naturalization and citizenship of married women, ” commonly known as the Cable Act, and which granted a form of independent citizenship to women.1 Among these comments we find the phrase, “ probably accidental reasons,” and an expressed sentiment that it is “ questionable whether the majority of the women of this country really wanted the new law, ” and simi- ‘lar suggestions. It has been intimated that the law was passed solely as the result of the persuasive efforts of a minority of women.2 In many instances little cognizance has been taken of the reasons for, and the actual facts involved in, the change.

Type
Research Article
Information
American Journal of International Law , Volume 18 , Issue 4 , October 1924 , pp. 720 - 736
Copyright
Copyright © American Society of International Law 1924

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References

1 42 U. S. Stat. at L. 1021.

2 SirYounger, Robert , in Report of the Select Committee on The Nationality of Married Women (1923) , p. 167 Google Scholar; Flournoy, Richard W. Jr., The New Married Women's Citizenship Law, 33 Yale Law Jour. (Dec. 1923), 159,169.Google Scholar

3 For the purposes of this article it will not be necessary to distinguish between citizen and national, citizenship and nationality. Any confusion in the meaning resulting from the connotation of these words as used on the Continent will thus be avoided. They will be used interchangeably.

4 It is well to note that Gaius, in commenting upon the citizenship of children, used various illustrations in which the citizenship of the mother differed from that of the father. Commentaries, I, secs. 90-92.

5 Huebner, , A History of Germanic Private Law (Philbrick translation, 1918) , pp. 584-590.Google Scholar

6 Maguire, , Suffrage and Married Women's Nationality, 54 Am. L. Rev. 641, 644.Google Scholar

7 See Brissaud, , Manuel d’Histoire du Droit Privé(1908), pp. 92, 108; Code Napoleon, Arts.12 and 19,Google Scholar

8 Blackstone's Commentaries, Bk. 1, Chap. 10. See Memorandum prepared by the Home Office, British Parliamentary Papers, Cmd. 1988 (1923), Appendix VI, Part 3, Sec. 4. (Appendices to the Summary of the Proceedings of the Imperial Conference, 1923.)

9 7 and 8 Viet., Chap. 66, sec.16.

10 33 Viet., Chap. 14.

11 Comments of Mr. McKenna, Justice , Mackenzie v. Hare (1915) , 239 U. S. 299; this Journal , Vol. 10, p. 165.Google Scholar

12 In a case refusing to recognize the privilege of expatriating oneself, it was said: “ In countries so crowded with inhabitants that the means of subsistence are difficult to be obtained, it is reason and policy to permit emigration. But our policy is different, for our country is but sparsely settled and we have no inhabitants to spare. ” Williams Case (1799), Wharton State Trials, 652. Fed. Case No. 17708.

13 Treaties recognizing a privilege of expatriation by foreign naturalization. See treaty with Germany (1868). 2 Malloy, Treaties, Conventions, etc. (1776-1909), pp. 1298-1299.

14 15 V. S. St. at L. 223.

15 Act of March 2, 1907, sec. 2. 34 St. at L. 1228.

16 Van , Citizenship; Shanks v. DuPont, 3 Pet. 242; Beck v. McGillis, 9 Barb. 35.

17 Rev. Stat. 1994, 10 U. S. St. at L. 604 (Feb. 10, 1855).

18 See Moore, , International Arbitrations , pp. 2483-2506.Google Scholar

19 34 U. S. St. at L. 1228.

20 Italics our own.

21 Mackenzie v. Hare (1915), 239 U. S. 299; this Journal, Vol. 10, p. 165.

22 See Wheaton's International Law (Lawrence ed.), p. 899, “ In the United States it is incorrect to suppose that alien, as opposed to citizen, implies foreigner, as respects the country.”

23 See “ Marriage vs. Votes,” Cambell, 27 Am. Leg. N. 19; “Citizenship, Expatriation, Suffrage,” note H. E. A., 4 Calif. L. Rev. 238; “ Expatriation Resulting from Marriage to Alien Husband,” W. W. S., 14 Mich. L. Rev. 233.

24 For psychological attitude in nationality and individual choice, see Randall, “ Nationality and Naturalization,” 40 Law Quar. Rev. 18; also Oakesmith, Race and Nationality; Forbus, “ The Nationality Law for the Wife,” Legislative Counsellor (Feb. 1924, p. 6). 10 Henning, Va. St. at L., ch. 55, p. 129 (1779).

25 Compare Flournoy, , “ The New Married Women's Citizenship Law, ” 33 Yale Law Jour ., pp. 159,168, and Maguire, , “ Suffrage and Married Women's Nationality,” 54 Am. Law Rev., pp. 641, 661.Google Scholar

26 Flournoy, op. cit.

27 41 U. S. St. at L. 1147.

28 1920, 41 St. at L. 1823.

29 S. J. Res. 21 by Mr. Curtis, (Dec. 10,1923), 68th Cong. 1st Sess. Sponsored by National Women's Party (letter to C. D. Hill, Feb. 6,1924).Google Scholar

30 Upon this subject see “ Current Legislation, Equalizing the Status of the Sexes,” 21 Colum. Law Rev. 712.

31 A study carried out under the direction of Mr. Allen T. Burns, reported in eleven volumes. The studies were prepared through funds furnished by the Carnegie Corporation of New York. Letter of Mr. Burns to C. D. Hill, March 4, 1924.

32 Gavit, J. P. , Americans by Choice (1922) , pp. 315-317. Letter from Mr. Burns to C. D. Hill, March 4, 1924.Google Scholar

33 49 Journal du Droit International (Clunet), 1922, pp. 619-620, citing:

France: C. civ., Art. 19, modified by the law of June 26, 1889.

Belgium: Loi sur Vacquisition et la perte de la nationalite (June 8,1909), Art. 11, Monit. du 17 juin 1909; Pasinomie, 8juin 1909, No. 137, p. 112. [See also law of May 15,1922.]

Bulgaria: Law of Dec. 4, 1903; law of Jan. 10, 1908, Art. 16.

China: Law of Nov. 18, 1912, Art. 12a. [See also revised law of nationality, Dec. 30, 1914.]

Italy: Law of June 13, 1912, Art. 10.

Mexico: Law of May 28, 1886, Ait. 2, sec. 4.

Monaco: Law of June 26, 1900.

Portugal: C. civ., Art. 22, sec. 4.

Siam: Law of April 10, 1913, Art. 4.

Venezuela: C. civ. of 1916, Art. 22.

See also, loc. tit., Costa Rica, laws of 1886-1889, Art. 4, sec. 5; Nicaragua, law of Oct. 3,1894, Art. 2; Salvador, law on foreigners of 1886, Art. 3; Serbia, C. civ., Art. 48, providing that a Serbian woman who marries an alien loses Serbian nationality if by the laws of the country of her husband a woman would lose her nationality by marriage to a Serbian.

Swiss citizenship is not lost except by explicit renunciation before the competent Cantonal authorities.

34 239 U. S. 299; this Journal, Vol. 10, p. 165.

35 “ It shall be presumed that he has ceased to be an American citizen. ” Act of March 2, 1907, sec. 2; 34 U. S. St. at L. 1228.

36 Rev. Stat., sec. 1994, and secs. 3 and 4 of Act of March 2,1907, 34 U. S. St. at L. 1228.

37 62 Cong. Rec. 9057, June 20, 1920.

38 49 Journal du Droit International (Clunet), 1922, pp. 618-619, citing:

Austria: C. civ., Art. 32.

Brazil: Law of Sept. 10, 1860.

Bolivia: C. civ., Art. 11.

Canada: Law of July 7, 1919, Art. 11:

Cuba: C. civ. espagnol, Art. 22.

Denmark: Law of March 29, 1898, Art. 6.

Dominican Republic: C. civ., Art. 19.

Germany: Law of July 22, 1913, Art. 17-6e.

Great Britain: Law of Aug. 7, 1914, Art. 10.

Greece: C. civ., Art. 25.

Guatemala: C. civ., Art., 56.

Haiti: Law of Aug. 30, 1907, doct. 9.

Holland: Law of Dec. 12, 1892, Art. 5.

Hungary. Law of Dec. 20-24, 1879, Art. 34.

Japan: Law No. 27, March 15, 1916, Art. 18.

Luxemburg: C. Nap., Art. 19.

Norway: Law of April 21, 1888, Art. 2b.

Peru: C. civ., Art., 41.

Persia: Law of Aug. 7, 1894, Art. 11.

Poland: Law of Jan. 20, 1920.

Roumania: C. civ., Art. 12.

Spain: C. civ., Art. 22.

Sweden: Law of Oct. 1, 1894, Art. 6.

Turkey: Law of Jan. 7, 1869, Art. 7.

39 Traveling passes are issued by the -Britieh Goverwiient; Sweden iesues a “ Passintyg” ; in Germany, it is a “ Personalausweis.”

40 Hearings before the Committee on Immigration and Naturalization on H. R. 6073, Feb. 12,1924, p. 20. Also incorporated in letter of Feb. 23,1924, from Congressman Tinkham to Congressman Porter, chairman Committee on Foreign Affairs, in support of the proposed Act, id., p. 23. Reeves, “ Nationality of Married Women,” this Journal, Vol. , p. 97.

41 Facts in case of Rev. and Mrs. Jules Ryff filed with House Committee on Immigration and Naturalization, Feb. 23,1924. Such a situation is also disclosed by the introduction of H. J. Res. 132 by Mr. Kelly, Jan. 9,1924, 65 Cong. Rec. 775. “ Joint resolution admitting Edith Thomas to the character and privileges of a citizen of the United States. ”

42 See Act of May 26, 1924, secs. 4 (a) and 6 (a).

43 Foreign Language Information Service, Editorial Committee, “ Women Without a Country, ” Release no. 38, Oct. 8, 1923.

44 Statement issued by New York Women's Trade Union League.

45 See “ What is the Cable Act?” Razovsky, in The Immigrant, Oct., 1922.

46 See note 33.

47 4 and 5 Geo. V, c. 17, sec. 10.

48 8 and 9 Geo. Y, c. 38, sec. 2 (5).

49 Parliamentary Debates, Commons, vol. 161, p. 897.

50 Report by the Select Committee, The Nationality of Married Women, July 24, 1923.

51 Session Oct. 1 to Nov. 8, 1923. Imperial Conference, 1923, Summary of Proceedings, Cmd. 1987 (NovBmber, 1923). Appendices in Cmd. 1988.

52 Resolution: The Committee are of opinion that the principle of the existing law that the nationality of a married woman depends on that of her husband should be maintained. They nevertheless recommend that power should be taken to readmit a woman to Britiahr nationality in cases where the married state, though subsisting in law has to all practical purposes come to an end.

53 The subject in its various aspects within and without the British Empire which was considered, is dealt with in a memorandum prepared by the Home Office. See Appendix VI, Part 3 of Cmd. 1988.

54 See Report of the Thirty-first Conference, The International Law Association, p. 247.

55 The proposed substitutes suggested by The National Council of French Women:

Art. 12-L'étrangère qui épouse un Français conserve sa nationalité; elle n'acquiert la nationalité française que sur sa demande expresse de naturalisation sur laquelle il sera statué par décret et après enquête.

Art. 19-La femme française qui épouse un étranger conserve sa nationalité à qu'elle ne déclare expressément dans son acte de mariage vouloir acquérir la nationalité de son mari. Même dans ce cas elle reste Française si dans la législation étrangère son mariage ne doit pas lui conférer la nationalité de son mari.

56 Report of the Thirty-first Conference, Aug. 24-30, 1922, Vol. 1, pp. 247-251, 255-257.

57 Provisional Draft International Convention suggested by the International Woman Suffrage Alliance:

Preamble. The high contracting parties (here name the states signatory to the convention) recognizing the undesirability of treating as of little importance the privileges and responsibilities of nationality by imposing upon married women a nationality without their consent, and further desiring as far as possible to prevent the hardships arising from conflicts of law, hereby resolve to adopt, cach in their own state, legislation on the nationality of married women, as indicated in the following general principles and particular applications thereof.

I. General Principles

(a) Effect of Marriage: The nationality of a woman shall not be changed by reason only of (i) Marriage, or (ii) A change during marriage in the nationality of her husband.

(b) Retention or change: The right of a woman to retain her nationality or to change it by naturalization, denationalization, or denaturalization shall not be denied or abridged because, she is a married woman.

(c) Absence of consent: The nationality of a married woman shall not be changed without her consent except under conditions which would cause a change in the nationality of a man without his consent.

II. Particular Application

(a) Retention of nationality: A woman shall not lose her nationality by reason only: (i) That she marries a foreigner, or (ii) That during marriage her husband loses his nationality by naturalizing in another country or otherwise.

(b) Loss of nationality: A married woman shall lose her nationality only: (i) Under the conditions which cause a married man to lose his nationality, or (ii) If she on marriage or during marriage is deemed by the laws of the state of which her husband is a national, to have acquired his nationality and she makes a declaration of alienage.

(c) Acquisition of nationality: (i) A foreign woman shall not by reason of marriage only, acquire the nationality of her husband, (ii) A wife shall not by reason only of her husband's naturalization be naturalized, (iii) A married woman shall be naturalized under the conditions which naturalizes a married man. (iv) Special facilities shall be given to a woman to acquire the nationality of her husband, and special facilities may be given to a man to acquire the nationality of his wife.

(d) Reacquisition of nationality: A married woman who has lost her nationality to acquire that of her husband shall on the dissolution of the marriage by death or divorce be given special facilities to reacquire her own nationality if she returns to her own country.

(e) Retrospective provisions: (i) Loss of nationality by or through marriage where before the adoption of the legislation based on this convention a woman has lost her nationality by reason only (1) that she married a foreigner, or (2) that during marriage her husband changed his nationality, she shall after the adoption of such legislation reacquire her nationality, if she makes a declaration to this effect; (ii) Acquisition of nationality by or through marriage where before the adoption of legislation based on this convention a woman by marriage or by the naturalization of her husband acquired his nationality she shall retain it unless she makes a formal declaration of alienage.

(f) Protection for the stateless woman: If a woman by the laws of her own state should by marriage lose her nationality, she shall be entitled to a passport and to protection from her husbands state.

(g) Additional article applicable only to states where the rights and duties of spouses in personal relations and as regards their property depend on nationality: In marriages whichtake place after the adoption of legislation based on this convention, the rights and duties of spouses in their personal relations and as regards their property shall be dependent on the law of the nationality of either the husband or the wife, at the time of their marriage, as they shall both agree at that time. But there shall be no change in the law of marriages which took place before.

III. Bmunaialim

The convention shall remain in force for five years and unless renounced shall be tacitly renewed every five years.

58 H. J. Res. 219 by Mr. Cable, March 17, 1924; 65 Cong. Rec. 4520.

59 Report of the Select Committee, The Nationality of Married Women, p. xiii.