An analysis of the proposal for independent citizenship for women, together with a summary of the present law of citizenship and naturalization

PART I—INDEPENDENT CITIZENSHIP FOR WOMEN 1. The Present Law

As the law stands now in the United States, a married woman has nothing to say about her own citizenship. Ujimarried women and women whose husbands have died, or whose marriage has been dissolved by divorce, are all independent in the matter of their citizenship. They can decide for themselves, just as a man can, what country tihey want to be citizens of. (See the section on the citizenship of an unmarried woman, on page 12.)

When a woman marries, however, she loses her independent citizenship, and takes wdiatever citizenship her husband has.

If she is an alien, and marries an American citizen, she becomes a citizen too. J his has been the law since 1855.

If she is an American citizen, and marries an alien, she becomes an alien too. This has been tihe law since 1907.

If the husband decides to change his citizenship, his \Vife has nothing to say about whether he shall do so or not; he does as he chooses, and his choice binds (her. If he changes his, what he really does is to change theirs, his and hers; she, however, cannot even change hers, much less his.

The Proposed Changes

The proposed changes amount, in general, merely to ending the control over a woman’s citizenship which is now involved in her marriage. They simply mean that a woman who marries a man of another nationality could keep her own nationality, if she chose; of course she could take his, if she chose, by becoming naturalized in his country. There have been various proposals during the past few years to reach this end. Two bills, the Rogers and the Johnson bills, have been introduced in the present Congress.

The Rogers bill simply provides that an American woman shall not lose her American citizenship by marrying an alien, aiiid that an alien woman shall not obtain American citizenship by marrying a citizen.

The Johnson bill goes into much greater detail. It allows an American woman marrying an alien to keep her American citizenship, unless ^he chooses to renounce it, provided she continues to live in this country; if she leaves this country and lives for two years in her husband’s country, or for five years in any other foreign country, she is presumed to have intended to give up her American citizenship. An American woman who is not residing here when she marries an alien loses her citizenship. An alien woman w(ho marries an American husband does not becchie a citizen by the mere fact of the marriage; she must meet the qualifications pro¬ vided for naturalization, as if she were an unmarried woman. An alien woman is allowed to apply for naturalization, by this bill, even though married; at present a married woman cannot apply for it.

The Johnson bill, as will be seen, makes the American woman’s citizenship depend on her residence; whether that provision will be adopted remains to be seen. Both bills have the desirable feature of ending the automatic naturalization

A aiARRIED WOMAN" LOSES HER INDE¬ PENDENT CITIZENSHIP

THE

PROPOSED LAW WOULD ALLOW HER TO CHOOSE

HUSBAND AND WIFE AT COMMON LAW

A MARRIED WOMAN IS NOW REGARDED AS A PERSON of alien women on their marriage to a citizen, or on the naturalization of their husbands.

The law finally adopted may contain the provisions of both of these bills, or additional provisions. Whatever the final form of the law is, it will allow a womain, married as well as unmarried, to determine for herself what nationality she wishes to have.

How the Present Law Came to Exist

The present law is a part, still surviving, of the old common law tiheory that a woman absolutely lost her identity, her very entity, her separate existe.nce, when she was married^ By marriage the husband and wife became one person in the eyes of the law; her legal entity was supposed to be merged into her husband’s. In. order to get around the fact that she was able to do something ror herself before slhe was married and after her husband died, the law said that during her married life her entity was “suspended” or incorporated and consolidated into that of the husband; so that during her married life she was supposed to have no separate personality, but only to act through and by him.

As it is sometimes put, marriage made them one, and he was the one.

The extent to which this legal fiction was carried simply wiped out a married woman’s identity. The personal property sihe owned when they were married became his absolutely, and so did anything else belonging to her that could be turned into money, such as the rents and profits from any real estate she owned, as for instance a farm or a house left her by her father. This personal property became his so absolutely that he could leave it by will to some one else, if he liked; she was not even sure of getting it back when 'he died.

If he deeded land to her, or made an agreement to pay her money, the deed and the promise were not binding on him, because she was tihe same as himself, and he could not make a deed or a promise to himself.

She could not make a contract even for the benefit of her own real estate.

If he did not support her, and she lhad to work to support herself and their children, her wages belonged to him; he could go and collect them from her employer.

If she were injured in a way that made some one liable for damages, she could not bring the suit; she and her husband brought it together, and the damages belonged to tlhe husband.

He alone had the right to appoint a guardian for their children; he could even say in his will who should be the guardian of their unborn child.

In short, the husband alone thought, and acted, and spoke for the whole social unit known as the family.

The Gradual Change in This Situation

As time went on, however, this situation changed; it became apparent that the whole scheme simply did not fit the facts of life. Gradually women have won, in most countries, and in most states of the United States, the rigiht to control and manage their own property, to transfer or sell it, or to leave it by will to whoever they desire. They have won the right to engage in most kinds of business and to follow most occupations and professions, and to control their own earnings. In most states they have won an equal right of guardianship over their children.

In other words, the world has come to recognize that the married woman is a person, even if she is married, and that she has an individuality too; it is admitted that she can think and act for herself. And the victory for equal suffrage is at last an admission that she has a right to speak for herself.

The married woman may choose her work, her religion, her political party now. She has acquired an independent existence, except so far as citizenship is concerned; as to that, the husband and wife are still one; her identity is still lost, at marriage, so fai as citizcjiship is concerned. T. his is what the movement for independent citi¬ zenship aims to change.

2. The Objections to the Present Situation

There are two great reasons why the present situation, depriving a married woman of her freedom of dhoice in citizenship, should be changed.

The First Reason: The Injustice to Women

The first reason for changing the present law is the injustice involved in it to millions of women, admittedly competent to determine the great questions of life. It is acknowledged that they can choose their husbands, can choose their form of religion, can bring children into the world and train their bodies and their souls^ It is admitted that they can and do earn tiheir living, by hundreds of thousands—not only their own living, but that of tiheir children, or their old parents, or their dependent brothers and sisters.

Simply as a matter of human dignity, and of elemental justice, women are entitled to independent citizenship.

The Second Reason: The Admission to Citizenship of Unqualified Women

One very undesirable result of the present Ian- is that thousands of unqualified persons are admitted to American citizenship.

The woman’s husband, in order to be naturalized, has to meet the tests imposed by the naturalization law, as follows: he has to have been a resident for five years; he must be able to read and write English; he must have a good character; he must show that he understands the principles of the Constitution and of our govern¬ ment ; and he must take the oath of allegiance.

ilis wife, however, can become a citizen without meeting any of tlhese tests. '

"Ehe exact words of the law are 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.”

The words, “who might herself be lawfully naturalized,” have been construed over and over again by various distinguished Attorney Generals and by the United States Supreme Court in the sixty years that this law has been on our statute books. It has been uniformly Iheld that this law does not require that the wife shall personally possess the qualifications for citizenship that she would have to possess in order to be¬ come a citizen if she were an unmarried w^oman, or that her husband has to have. All that this law requires is that she be a member of one of the races that may law¬ fully be naturalized, i. e., tlhat she be not a member of one of the excluded races; that is, she must be a free white woman or a woman of African nativity or descent, and not a Chinese or Japanese woman.

EXCEPT IN CITIZENSHIP

INJUSTICE TO WOMEN IN PRESENT LAW

CITIZENS BY MARRLAGE NEED NOT MEET QUALI¬ FICATIONS FOR CITIZENSHIP

NEED NOT BE OF age, or a RESIDENT FOR FIVE YEARS

DOES NOT TAKE OATH AND NEED NOT BE OF GOOD CHARACTER

The wife may become a citizen when she is not twenty-one years of age.

She becomes a citizen even when she has not been a resident here for five years.

She may become a citizen even though she never comes to this country at all, or comes'only to settle Iher husband’s estate after his death. There is some difference of opinion on this last point; interpretations or rulings made in recent years by Secre¬ taries of State tend to moderate somewhat the decisions in the recorded cases, all of which hold flatly that the wife of a citizen becomes a citizen when Ihe does, even through she does not come to the United States till after his death.

She becomes a citizen witihout taking the oath of allegiance. And she does not even have to satisfy the requirement of good character; she becomes a citizen when she marries a citizen, even if her character is known to be bad. Before 1917 there was more than one case where a woman about to be deported as a prostitute was able to evade it by marrying a citizen, thus becoming a citizen too. The Immigration Act passed on February 5, 1917, however, contained a provision to the effect that when a woman who is liable to exclusion or to deportation from the United States for acts of sexual immorality, marries an American citizen after she has been arrested or after sihe has committed the acts that made her liable to deportation, the marriage does not make the woman an American citizen.

Of course many alien women who have become citizens by marrying a citizen, with¬ out proving that they possess the qualifications for citizenship, could have proved it, if they had been asked to. iVlany thousands, however, could not have proved it. it is not so much their admission to citizenship that is objectionable, as it is the right they have, as citizens, to vote. As citizens they have, except in the few states that have an educational qualification for voters, the right to vote on all questions. The policies of this country should not be framed and its laws should not be determined by persons not personally able to meet the moderate requirements for naturalization.

Husbands Without Nationality

SOME 111 certain cases a man has no right to citizenship in any country. A German HusBANDj subject, for example, who lived outside of Germany for ten years, lost his citizenship NATIONALITY ‘ *' nationality. Suppose an American woman marries a German who has thus lost his nationality: sIhe loses her American nationality by the marriage; what nationality does she get?

Take another case: the child born abroad of an American father who has ever lived (the father) in the United States is an American citizen; but if the father never has lived here the child is not a citizen. Suppose the child of a father who ncs^t r lived here is born in a country like Russia, which does not give citizenship, as we do, to all persons born in that country. The child is not an American citizen, and not a Russian subject; he has no nationality. Suppose an American girl marries him; she loses her American citizenship; what citizenship does she get?

Husbands Whose Country Does Not Give the Wife His Citizenship

SOME It is not every country that gives its .nationality or citizenship to a woman merely COUNTRIES because she marries one of its subjects or citizens. This fact is so well recognized in

THE WIFE Other countries that special provision is made for it in the citizenship laws In France, CITIZENSHIP j^eigfum, Italy, Honduras, IMexico, Nicaragua, Costa Rica and Venezuela, the law providing that a woman citizen wfio marries an alien loses her native citizenship particularly spyecifies that this happens only if the law of the husband’s country grants his citizenship to her.

But the United States law makes no such distinction: the American woman loses her own nationality, whether she gets her husband’s or not.

Other Provisions of Laws of Other Countries

A woman marrying an alien does not lose her nationality unless she leaves fher native land, in Ecuador and Guatemala.

Marriage with an alie.n had no effect on the nationality of a British woman until 1870; until then a British woman who married an alien kept her British nationality, no matter whether she remained in England or not. In 1870, in a general revision of the law of nationality, a provision was inserted requiring her to take her husband’s nationality. This law has beeji and is being vigorously attacked. Another act passed in 1914 in Great Britain recognizes to some extent the wife’s right to control her nationality in the provision requiring her consent to a change of nationality after the marriage.

3. Answers to the Objections to Independent Citizenship

Let us look at the objections to independent citizenship.

To begin with, people no longer claim that a woman has not enough intelligence to decide what she wants her citizenship to be. The law allows an unmarried woman who is of age to become naturalized, on exactly the same terms as a man. If the wo¬ man’s husband dies, or if she is divorced, she again becomes entitled to become natural¬ ized. It is only during the time when she is her husband’s wife that she cannot act for herself in the matter of citizenship.

Now of course it cannot be believed that there is anything about the marriage rela¬ tion which makes a woman who was intelligent before she was married, and is intelli¬ gent after tihe marriage is over, unintelligent while the marriage lasts. Is there some other reason, inherent in the marriage relation, which makes it necessary for the wife t^ abrogate and abdicate her individuality during that time? Let us see whether any of the usual objections to independent citizenship contains or involves any such reason.

The Objection of Divided Citizenship Within a Family

One objection frequently urged against independent citizenship for married women is that it would result in divided citizenship within the home, which is alleged to be an intolerable situation.

The answer to this objection is that we have divided citizenship now, in thousands and hundreds of thousands of homes in this country, and yet the roofs stay on the houses. The situation does not appear to be intolerable. Wheaiever a child is born in this country of foreign born parents who have not been naturalized here, another case of divided citizenship arises, for such a child is an American citizen, though its parents are aliens. Yet they live on peaceably, under the same roof, and we do not feel that wo are creating intolerable situations by the thousand every day by giving such a dhild citizenship. It certainly is no worse to have the father and mother different in citizenship than to have the parents and the dhildren different; and we pride ourselves on giving American citizenship to these children.

And ^^4ien those native born children of foreign born parents were called in the draft, as citizens, the call was honored by parents and children alike. Even where there was divided citizenship, the allegiance was not divided.

DIVIDED CITI¬ ZENSHIP IS NOT A SERIOUS OBJECTION

MOST PROPERTY RIGHTS DO NOT DEPEND ON CITIZENSHIP

Persons making this objection overlook the tact that it is not divided citizenship, but divided sympathy, that makes a situation intolerable. If an American citizen who believes that England should rule Ireland with an iron hand marries an Irish girl who sympathizes with the Sinn Fein, it will not bring them together to confer Ihis citizenship upon her; merely pasting the same label on them docs not make them alike. If they are divided in sympatliy, they arc divided, even if tiheir citizenship is the same; and if they are in sympathy, they are in sympathy, even if their citizenship is different.

The Objection that there Would Be Confusion about Property

It is sometimes alleged that if the husband and wife were to differ in citizenship, great confusion would arise in matters relating to property.

The answer to this question is that in most cases the control of property does not depend on the citizenship of the owners or the claimants. It usually depends on the location of the property or on the domicile, i. e., the residence, of the OMTiers.

A few illustrations will make this clear.

If it is a question of a piece of land in New York State, for example, it is the law of New York State that controls tihe disposition of that property; it does not matter whether the land belongs to a British subject or to an American citizen, the law of New York State that governs it is the same.

If it is a question of personal property, as for instance the money in a savings bank In Chicago belonging to a German subject formerly living in Chicago who was run over and killed by a truck, the law that applies to that money is just the same as if he had been an American citizen. Suppose there are no heirs in Illinois: the public adminis¬ trator takes charge of the estate, and administers it according to the law of Illinois, dealing out the shares of it in exactly the same way to alien heirs living in New York and citizen heirs living in Massachusetts.

d'he fact is that aliens and citizens now have so nearly the same rights in property matters that very little depends on citizenship, much less than people suppose; almost everything depends on the location of the property or on the residence, or,to use the legal term, the domicile of the owners. A person’s domicile is the place where Ihe or she has set up his residence, with the intention of remaining there permanently; it is the place one tihinks of as one’s permanent home, even though one may be absent from it at times. It is a person’s domicile that controls what the French call a person’s civil status; his citizenship controls his political status. But most of the affairs of life are matters that come within the civil status; matters like property, and wills, and mar¬ riage, and divorce, and guardianship, all depend on a person’s civil status.

What the Wife Chooses

It is sometimes urged that the woman who marries an alien husband must have chosen deliberately to become an alien, because she married one.

One writer says that by marrying a foreigner the woman shows a desire to change her .nationality: “This desire is clearly manifested by the fact itself of marriage; the woman, who is free not to marry, knows what she incurs by marrying.”

The answer to this is that she did not choose his citizenship, she chose him. Na¬ tionality is not usually the first thing they are thinking about.

There is no more reason why her choice of an alien husband should be assumed to imply that she wants to change her nationality, than why his choice of her should imply that he wants to change his.

PART II~THE LAW ABOUT CITIZENSHIP IN THE UNITED STATES

A Few General Facts About Citizenship

A person can be a citizen of only one country at a time.

Usually a person is a citizen or subject of the country in which he (or she) was born.

A person keeps the citizenship he (or she) gets at birth, no matter if he goes to live in another country, unless he goes through the procedure of becoming a citizen of that other country. An alien cannot become an American citizen by merely living in the United States, even if he lives here 50 years.

A person may change his citizenship if he desires. His old country may not be willing to let him go, but in the United States we believe that a person has the inalienable light to change his allegiance if he desires.

A child has the same citizenship that its parents have, except a child born in the United States whose parents are aliens. That child is a citizen, although its parents are not. If the parents’ citizenship changes, while the child is a minor, the child’s citizenship changes, too.

A married woman has, at present, the same citizenship as her husband., (See p. 12)

Who Are Citizens of the United States

There are only two ways of becoming a citizen of the United States:

1. by birth; and

2. by naturalization.

It is sometimes said that there is a third way in which an alien woman may become a citizen, i. e., by marriage with a citizen. This is also called a form of citizenship by naturalization.

Citizenship by Birth

Any person born in the United States is a citizen, whether his or her parents were citizens or not. Every person born on American soil possesses the fullest possible rights of American citizenship.

For example, the child of Russian or Armenian refugees, born an hour after the parents land in New York from Ellis Island, is as much an American citizen as a child whose ancestors came over on the Mayflower. Any one

born on American soil is an American.

This has been the law of the United States from the very start. We regard this as such a fundamental principle that we apply it even in the

case of the child of parents that we do not allow to be naturalized; Chinese

men or women, for instance, cannot become American citizens; and yet the child of a Chinese man and woman is an American, if it was born here.

Certain countries in Europe and Asia have a different law on this point, and claim that if their subjects or citizens come over here and have a child born before they are naturalized, while they are still subjects of tiheir old

ONLY TWO WAYS OF ACQUIRING CITIZENSHIP

CITIZENSHIP BY BIRTH

EXCEPTIONS TO THIS LAW

NEGROES WERE EX¬ CEPTED TILL I4TH AMEND¬ MENT WAS PASSED

INDIANS STILL EXCLUDED; CERTAIN INDIANS ADMITTED

EXCEPTIONS : PERSONS NOT SUBJECT TO THE JURIS¬ DICTION OF THE UNITED STATES country, that child is a subject, too. The United States, however, does not recognize that claim, and insists that the child is an American citizen if it was born on American soil, no matter of what country its parents are citizens or subjects.

Exceptions to this Law

Two groups of persons born in the United States and entirely subject to its jurisdiction have been regarded as exceptions to the law that birth here confers citizenship. These two groups are negroes and Indians. Negroes born here now become citizens automatically by birth, but Indians do not.

IVIembers of the black race were regarded as exceptions to the law tlhat birth here confers citizenship until the Fourteenth Amendment to the constitution of the United States was ratified by the States in 1868. This amendment says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.”

The main object of the first clause in this amendment was to settle the question of the citizenship of free negroes, about which there had been a difference of opinion i?i the country and in the court. The Dred Scott case, which was decided shortly before the Civil War, declared that persons brought to this country as slaves, and their descendants, were not citizens, and were not capable of becoming citizens. The Four¬ teenth Amendment put it beyond doubt that all persons, white or black, and whether formerly slaves or not, who are born or naturalized in the United States, and who owe no allegiance to any foreign power, are citizens of this country.

Indians were also once entirely excluded from the benefits of this law. On Febru¬ ary 8, 1887, Ihowever, a law was passed declaring that those Indians that were born within the territorial limits of the United States and who had had land allotted to them personally and had given up their tribal life and had taken up a separate residence and adopted the habits of civilized life, were citizens of the United States. Indians that do not comply with these qualifications are still excluded from citizenship, although born in this country.

There are three other exceptions to this law, consisting of persons born within bhe territory of the United States, but not subject to its jurisdiction. These three excep¬ tions are:

1. The childreji of foreign ambassadors representing their country in the United States;

2. The children of alien parents born on public vessels lying in American ports;

3. The children of alien enemies in hostile occupation of American territory.

For example, if a child is born to a Japanese ambassador while he is in this c«'»untry,,

the child is a Japanese subject, not an American citizen.

Similarly, the child of an English sea captain and his wife is a British subject, al¬ though born on their vessel while it is lying in New York harbor.

Also, the children born in New York City to persons belonging to the British forces who held the city during the Revolutionary War were British subjects, not American citizens.

It is obvious that the same reason exists for all three of these exceptions. The am¬ bassador, for example, is supposed to carry his country about with him, and to be still a part of it, although actually within the country to which he has been sent to represent his own; the place where he sets up his ambassy is regarded as foreign, not American, soil.

Citizenship by Naturalization

The second way of becoming a citizen of the United States is by naturalization. Naturalization is merely the act of being adopted into a nation; it is similar, only in a larger sense, to being adopted into a family. The underlying idea is the same.

There are three waj^s by which a person may become a citizen by naturalization:

1. The first way is by taking out naturalization papers for oneself.

2. The second way—since a married woman takes her husband’s citizenship—is by marrying a citizen^

3. The third way—since a child’s citizenship is usually the same as its parents’—is through the naturalization of the child’s father or mother.

The procedure of naturalization is described in detail in the latter part of this pamphlet.

The Rig’ht to Chang'e One’s Allegiance

The United States maintains that a citizen or a subject of a country has the right to give up his allegiance to t!hat country, if he desires, and attach himself to some other country the ideals and policies of which seem more just and more desirable to him. We believe that the mere fact that a person was born on a certain spot of earth does not entail on him the obligation to remain attached to it throughout his entire life; and we believe that he has the right to make this change, whether his old government agrees to it or not. Some Continental countries do not agree to this, and refuse to recognize any such change to which tihey have not previously consented; but we insist in this country that a person has the right to change his allegiance if he desires.

There was so much doubt about this point at one time that a law was finally passed by Congress in 1868 stating that tihis right to expatriate oneself is “a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuits of happiness.” Any restriction on this right, or any questioning of it, was declared “inconsistent with the fundamental principles of the Republic.”