Chapter 1
Conscripted Allegiance:
Marital Naturalization and the Immigrant Woman
The intimate relation, the mutual affection, the common sympathies, the family, the education of the children in allegiance, fidelity, and love to the government, the common pecuniary interests, the obligation to live with each other as long as life lasts, and the tranquility and harmony of domestic life, all require that the husband and wife should be of the same nationality.
—Excerpt from the case record of Elise Lebret, in John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party
"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."[1] Section 2 of the Naturalization Act of February 10, 1855, thus bestowed on the foreign wives of Americans the ambiguous distinction of being the first and only group of adults to receive United States citizenship derivatively. At the time of its enactment, the automatic naturalization of citizens' wives did not draw any apparent puzzlement or alarm. Viewed from an international perspective, the policy was not remarkable; in fact, a British statute had served as its model. The American public greeted the new naturaliza-
tion statute with indifference, while Congress commanded itself for chivalrously sparing a group of female immigrants the rigors of naturalization. For half a century legal scholars, legislators, woman's rights reformers, and the general public barely reflected on the fact that the introduction of this statute marked a significant decline in the nationality rights of women living in the United States.
Organized efforts to rescind this denial of a married woman's right to choose her citizenship did not materialize until the next century. Even female reformers then failed to ponder the ominous implications of this naturalization policy; the leaders of the woman's rights movement, most of whom were U.S. citizens by birth, viewed naturalization policies as an issue outside their sphere of concern. But this era of neglect ended abruptly in 1907, when Congress revoked citizen women's ability to remain citizens after marriage to an alien.[2] Shocked by the government's punitive proceedings against women with noncitizen husbands, woman's rights activists promptly declared derivative citizenship an unwarranted political assault on women. The 1855 and 1907 statutes had revoked all married women's claims to an independent nationality. After 1907, the vast majority of married women in the United States no longer held the status of citizen or noncitizen as a consequence of birthplace, parentage, or independent naturalization. The citizenship of their spouse was the single factor ruling their nationalities.
The automatic naturalization of citizens' wives remained federal policy until 1922, but not every woman who married an American became a naturalized citizen. Affirming the customary understanding that automatic naturalization was the country's gift to the worthy wife of a valued American, the few exceptions to marital naturalization identified by the courts or Congress did not distinguish the exempted wife as a woman of privileged independence but rather as a person singularly unfit to receive American citizenship. The two factors that could independently disqualify an immigrant woman from assuming American citizenship through marriage were race and a record of immoral sexual behavior.
When the federal government first imposed derivative citizenship on foreign-born women, only free white persons could become U.S. citi-
zens through naturalization. After the ratifications of the Thirteenth and Fourteenth Amendments, Congress expanded the category of naturalization candidates accordingly to include people of African descent or nativity, but all other racial hurdles to adoptive citizenship remained firmly in place.[3] Then, almost fifty years later, the federal government amended the 1855 law to deny derivative citizenship to alien women of "sexually immoral classes."[4] The imposition of this second exception to the rule was part of a larger governmental initiative to curb the immigration of foreign prostitutes.
Throughout the second half of the nineteenth century, the practice of marital naturalization generated only sporadic legal commentary, in contrast to the policy granting citizenship derivatively to children born abroad. In 1855, the woman citizen's solitary protected political right was the ability to petition her government; and if married she held very limited civil rights. Clothing citizens' foreign wives with U.S. citizenship thus seemed to offer these women few tangible gains beyond the power to claim dower rights as citizens. But when the Expatriation Act of 1907 went into effect fifty-two years later, coverture doctrine had relaxed its grip on women's lives, and in the realm of political rights citizen women had the achievement of national woman suffrage in their sights. By the closing months of 1920, two legal developments had sharply enhanced the political significance of marital naturalization and expatriation. Congress had begun to move decisively toward implementing comprehensive and restrictive policies on naturalization and immigration, and the automatic naturalization of married women stood squarely in the path of that larger objective. At the same time, the woman suffrage campaign had concluded successfully. Once the Anthony (Nineteenth) Amendment became law, women naturalized by marriage could register to vote nationwide. Federal legislators could no longer describe the purposes of Section 2 of the 1855 law in nonpolitical terms because the enfranchisement of women had given marital naturalization a new and conspicuously political design.
Within the federal government, Congress was not the sole initiator of the debate over marital naturalization. By 1920, federal judges, the
State Department, and the Department of Labor's Bureau of Immigration and Naturalization had already established a history of disagreement over the interpretation of Section 2 of the 1855 Naturalization Act. This series of conflicts had not begun to erupt until the 1900s, but the U.S. Supreme Court had sown the seeds of this intragovernmental quarrel decades earlier in the case of Kelly v. Owen et al .[5]
Although the recent ratification of the Fourteenth Amendment had finally provided a basic definition of U.S. citizenship, nationality law stood in a relatively rudimentary state in 1868, when the Supreme Court rendered its decision in this case.[6] Two distinct principles defined the acquisition of citizenship at birth: jus sanguinis and jus soli . The Fourteenth Amendment honored the rule of jus soli with the declaration that persons born within the territorial boundaries of the United States were its citizens.[7] When parentage defined nationality, however, an individual received citizenship by application of the rule of jus sanguinis (by right of blood). A series of nationality statutes introduced in the eighteenth and nineteenth centuries provided for this method of acquiring citizenship.[8]
As for naturalization, early nationality statutes made no explicit distinction between a mother's or father's ability to transfer American citizenship upon their naturalization to their children living in the United States. Thus, a naturalized woman's power to clothe her children with her citizenship (whether these minors were living in the United States or abroad) was neither explicitly denied nor recognized.[9] The drafters of the Naturalization Act of 1855, however, removed this ambiguity by substituting references to "parents" in an 1802 statute with the less inclusive "fathers, thus eliminating any claim by mothers to control over
their "legitimate" children's citizenship. Having established the male citizen's exclusive control over his children's nationality, Congress then extended the compass of his authority even further to include governance of his foreign-born wife's citizenship.
These mid-nineteenth century changes in legal dependents' naturalization gave American men almost exclusive determination of the citizenship of their foreign-born wives and children and drew the United States into closer alignment with several countries whose laws similarly ensured the undivided nationality of the family. Together, common and statutory law turned marriage into a legal compact that denied many foreign-born women in the United States independent civil and political identities. Prior to the introduction of these revisions in naturalization policy, the country's courts generally recognized a married woman's ability to pursue naturalization or to maintain her premarital citizenship regardless of her spouse's nationality. Until abruptly withdrawn, this aspect of women's political autonomy had contrasted sharply with the common law doctrine of coverture, which effectively suspended a wife's civil identity for the duration of her marriage. Requiring a woman to assume her spouse's nationality harmonized well with the single-identity theory of marriage expressed through the doctrine of coverture, but until 1855 it was not an element of individual sovereignty a woman had to sacrifice as feme covert .
By 1855, coverture had begun its slow and fitful demise, a decline already signaled by the passage of married women's property laws in some states. When in force, this doctrine had dictated that a married woman generally could not sue or be sued, sign contracts or wills, or possess property (including her wages and children). Coverture ruled over the realm of civil rights, but citizenship was a political matter and thus fell outside its purview. This distinction between political and civil rights and the lingering concept of perpetual allegiance may explain the late arrival of marital expatriation and naturalization in the United States.[10]
Perpetual allegiance, a notion English colonists had carried to North America, gave national governments paramount control over an individual's acquisition and alteration of citizenship. In countries embracing that understanding of the relationship between a citizen and her political society, citizens could not formally renounce their birth alle-
giances without the consent of their government. In fact, the rule of indelible allegiance suggested that a person was more subject than voluntary citizen. Although the revolutionary ideology of the young country clashed with the notion that citizens lacked the power to choose their allegiances freely and independently, the U.S. government withheld statutory recognition of a citizen's power to renounce a birth allegiance for almost a century after the American Revolution. When Congress did act in 1868, the declaration was a forceful one, defining expatriation as nothing less than a "natural and inherent right of all people.[11] Yet, despite the use of the all-inclusive "people," foreign-born women married to Americans were still denied volitional citizenship. This inconsistency in the law would remain unchallenged, however, as long as Congress and the courts chose to maintain the fiction that a woman's marriage vows represented a voluntary oath of naturalization or declaration of expatriation.
The provisions of the 1855 statute testified to the mercurial nature of this "right" to expatriation, a right manifest either as a personal right voluntarily exercised or as a punishment meted out at governmental discretion. The Naturalization Act of 1855, working in coordination with the marital-expatriation laws in many foreign countries, robbed a large number of foreign-born women of a right that U.S. law had ostensibly ensured to all persons within its jurisdiction, regardless of sex or marital status—the right to consensual citizenship. At the same time, the 1855 law could offer some significant forms of protection. The United States' immediate conveyance of American citizenship to citizens' wives rescued many women from the hazards of statelessness; and as the federal government became increasingly aggressive in its efforts to expel or bar aliens from the country, marital naturalization provided immigrant
women with immunity from deportation or exclusion. In the nineteenth century, naturalization could also furnish the means of inheriting property in the United States. As a noncitizen, an immigrant woman would have been barred by common law tradition from owning, transferring title to, or inheriting land in most states.
Despite these valuable protections against statelessness and the loss of inheritance (including dower) rights, not all women welcomed the loss of one citizenship and the imposition of another without their express consent. Nevertheless, the federal government remained unsympathetic if not bewildered by some women's protests against their involuntary expatriation and naturalization because of their marriage to an American. As one federal agent explained bluntly: "The United States statute stands upon the ground of public policy, not on the ground of the wife's consent . . . She may object to this naturalization and protest ever so formally that she will not become an American citizen; . . . it makes no difference. The law, founded on a wise public policy, requires her nationality to be the same as her husband's, and she becomes by operation of law an American citizen."[12] After noting that about a half million foreign-born women had likely become citizens by marriage, he reasoned that it would now be "a great wrong" to treat these women as aliens. And acknowledging women's right to consent to naturalization could serve no real purpose. "Men exercise political powers and privileges, and can vote and hold office, and are liable for military service. Women have no such powers and liabilities. By naturalization they get little or nothing."[13] This common defense of marital naturalization carried an obvious internal contradiction. If citizenship offered women "little or nothing," why must citizens' wives be naturalized automatically? And why deny these women the right to refuse to become Americans if their naturalization carried so little significance? But these inconsistencies were inconsequential to policymakers because the woman's citizenship was of little consequence. Marital naturalization was not about empowering immigrant wives through citizenship, it was about reaffirming the privileges of their citizen husbands. Indeed,
once marital naturalization gave women access to significant political privileges, Congress abolished the practice.
When organized women finally launched a campaign against dependent citizenship, they immediately faced resistant members of Congress, who viewed the 1855 rule as a benignant policy that protected women from the disabilities of alienage, properly rewarded wifely devotion to American men with the bestowal of U.S. citizenship, and assured the assimilation of immigrant mothers and their children. Until the ratification of the Anthony Amendment seemed imminent, Congress continued to treat marital naturalization as both a welcome gift to Americans' foreign wives and a vital national cultural investment. These defenses of women's automatic acquisition of citizenship highlighted different aspects of the relationship between the individual and her adoptive government, yet both suggested women's powerlessness and insignificance in the creation of that relationship.
In the 1910s Congress continued to resist woman's rights advocates' protests against derivative citizenship, but not all agencies of the federal government agreed this form of naturalization was beneficial to all the involved parties. In the preceding decade, the practice had provoked rumblings of dissent from the Bureau of Immigration and Naturalization, then housed in the Department of Commerce and Labor. The Bureau's officials were convinced that federal courts were encouraging widespread abuse of the privilege by immigrant female prostitutes and their procurers. And the major instigator of this predicament was the 1868 Supreme Court ruling in Kelly v. Owen et al . In this case, the Supreme Court had declared that the only persons who could not be naturalized upon marriage to American men were women racially ineligible for naturalization.[14] Thus, a woman's country of residence and time of her marriage—other factors that could plausibly affect a foreign wife's claim on U.S. citizenship—were apparently irrelevant. It should be noted, however, that neither race nor residence were factors
in Kelly . The Court's statement on racial eligibility was dictum, not binding.
The case involved a widow's quarrel with her two sisters-in-law over the division of her husband's property. The Supreme Court declared the widow eligible to inherit, rejecting the sisters' claim that their naturalized brother was not a citizen at the time of the marriage and thus had been unable to make his wife a citizen. According to the Court, the language in the 1855 law, "who might lawfully be naturalized under the existing laws," was a reference only to the racial qualifications of the wife.[15] Justice Stephen Field, delivering the Court's opinion, failed to note explicitly, however, that identification as a "free white person" was not the only standard individuals had to meet before becoming naturalized citizens. They also had to be at least twenty-one years of age and a resident of the United States for a minimum of five years—requirements the Supreme Court may have assumed were set aside by the woman's status as a feme covert and by the intent of the framers of the 1855 statute.[16] The justices may also have neglected to mention residence as a factor in naturalization simply because it was irrelevant in this case, but the opinion's limited engagement of this and other questions raised by marital naturalization would complicate the disposition of subsequent cases involving governmental challenges to women's claims of citizenship. Many judges thereafter assumed that the Court's failure to mention other basic qualifications for naturalization signified something other than judicial restraint. Indeed, what the Court did not think to utter in this opinion quickly assumed greater significance than what it did say.
By the first decade of the twentieth century, Congress had begun to moved determinedly to selectively limit both immigration and naturalization. One result, among others, was the expansion of Kelly 's historical
significance both as precedent and as the source of interpretational conflicts between federal judges and the Bureau of Immigration and Naturalization. If the framers of the 1885 statute had intended citizens' foreign wives to remain exempt from all general naturalization requirements except racial eligibility, prevailing interpretation of Kelly assured the success of that design. Many legal experts interpreted Justice Field's words as judicial affirmation that citizenship's door was open to any woman who married an American and was racially eligible for naturalization. As one judge cautioned, if an American man's spouse had to satisfy more than the racial requirement for naturalization, "the whole intent of the [1885] law would be nullified"; but immigration officials trying to deport or exclude certain citizens' wives from the United States disagreed vehemently with that opinion.[17]
Kelly had initially been introduced into a political atmosphere relatively unstirred by debates over the automatic naturalization of the feme covert . With the outstanding exception of exclusionary racial policies, immigration and naturalization standards remained relatively unexacting for the remainder of the nineteenth century. Although this situation changed dramatically in the first half of the twentieth century, most judges' recorded views on the 1868 decision's purpose did not. As the legislative and executive branches of the federal government sought to make the attainment of permanent residency and citizenship increasingly difficult for aliens, federal judges' assertion of an exceptionally liberal naturalization policy for citizens' wives stood in defiance of those objectives. While executive officials and Congress collaborated to construct increasingly restrictive general immigration and naturalization laws, federal judges shielded foreign-born white women married to Americans from exclusion or deportation by declaring them citizens by marriage. Inevitably, immigration officials accused the courts of furnishing foreign-born women with a simple and particularly offensive means of thwarting legitimate attempts to deport or exclude them.
The State Department also had a significant interest in the progression of this debate. Until the early twentieth century the State Depart
ment ruled on cases involving the status of naturalized Americans living abroad without the benefit of statutes clearly delineating residency requirements for maintaining U.S. citizenship. As the dispensers of passports, State officials had to determine whether their department's policies regarding expatriation by foreign residence should also apply to foreign-born women who married Americans but still lived in foreign countries. Were nonresident, naturalized women protected from expatriation as long as their husbands remained U.S. citizens, or did these women forfeit their status as Americans—as did other naturalized citizens—if they continued to live abroad?
In the several decades before enactment of the Expatriation Act of 1907, the State Department had consistently assumed that a naturalized American's prolonged absence from the country signified abandonment of U.S. citizenship. Several treaties between the United States and other nations ratified before 1907 also provided for the loss of naturalized citizenship on these grounds. By the time Congress furnished statutory grounds for the application of this policy in 1907, U.S. courts and Secretaries of State had recognized nonresidence as one form of expatriation for more than a century.
As Secretary of State Hamilton Fish had explained in 1873, if a naturalized citizen permanently removed himself and his property from the United States, the federal government could assume that "he has so far expatriated himself as to relieve this Government from the obligation of interference for his protection."[18] The absence, however, had to be permanent; a return to the United States automatically swept away the presumption of expatriation. Thus, the individual's citizenship could more accurately be described as suspended rather than revoked during this period of absence.[19]
Prevailing interpretation of Kelly notwithstanding, the State Department had also assumed that women who received citizenship deri-
vatively through marriage could forfeit their claim to American citizenship if they lived abroad, but whether the American's wife who never lived in the United States could receive citizenship derivatively was another question to which federal statutes provided no clear answer. As immigration regulations became increasingly restrictive, however, the need for legislative clarification grew urgent. The significance of Congress's response was plain: if an alien woman did not become an American by marriage while living abroad, then she could not demand automatic entry into the United States as a citizen.[20]
In individual cases involving noncitizen women married to citizen men, the State Department deferred to the nationality policies of the woman's country in order to avoid conflicts of law. Following prevailing international practice, the Department treated the nonresident woman married to an American as an alien if her country of origin still claimed her as its citizen. From the Department's perspective, one of the merits of this policy was its insurance against the woman's acquisition of two nationalities.[21] And if her country's law mandated her expatriation for an alien marriage, the United States adopted her as an American, saving her from statelessness. (This home-law rule also applied to naturalized widows.) In some cases a woman naturalized by marriage but separated permanently from her husband by death or divorce could reassume her premarital citizenship by simply returning to her native country. This particular policy, observed in the United States until 1922, suggested strongly that a woman's premarital citizenship
was only suspended rather than eliminated by a foreign marriage and residence.[22]
The State Department described dual citizenship as a national affliction that undermined the integrity of U.S. citizenship, but its officials viewed the hardships of statelessness as the individual's misfortune. Governmental interest in developing naturalization and expatriation guidelines that harmonized with prevailing global practices did not always protect a woman from entering the limbo of statelessness when she married. In some instances both the woman's native country and her husband's nation declined to claim her as a citizen, and State Department correspondence records contain some tragic notations on the lives of women whose marriages cost them not only an independent citizenship but citizenship itself.
The case of Elisabeth Abeldt-Fricker highlighted the political jockeying and legal confusion transnational marriages could generate. Abeldt-Fricker had married an American citizen in 1892, divorced him in 1905, and then returned to her native Switzerland. Within a year, she was a resident in a Swiss insane asylum. Unwilling to bear the expenses of her care, the Swiss government declared that Abeldt-Fricker was still an American citizen despite her divorce and residence and called on U.S. officials to assume the costs of her medical treatment. The U.S. State Department, however, was equally unwilling to concede responsibility for a public charge.
Secretary of State Elihu Root informed Swiss authorities that Abeldt-Fricker had forfeited her American citizenship and reassumed her former nationality when she left the United States to resettle permanently in her native country.[23] Still unpersuaded of its responsibilities, the Swiss legation countered that Abeldt-Fricker was non compos when she left the United States and was thus unable to comprehend that her departure was an act of voluntary expatriation. The U.S. State Department held its ground and replied firmly and finally that its government would refuse to receive an insane, and thus inadmissible, alien.[24] In the end, the U.S. government prevailed, perhaps only be-
cause it had the ability to block Abeldt-Fricker's reentry into the country.
For five years, and despite acute physical infirmities, Louisa Lassonne appealed directly but unsuccessfully to the U.S. government for recognition as a citizen by marriage. Lassonne, also a Swiss native, had married a naturalized American in Russia in 1874, but she and her deceased husband had never returned to the United States. Lassonne asked the State Department to renew her passport in 1897:
I am an old woman, weak and sickly, a widow; I earn my bread by teaching; in the winter I give lessons, in the summer I travel about with families at whom I engage as governess.
I never was in America, and can not go there if I wished, having no means; and what should I do there, I being a stranger, rather to say, foreign to the country; in which way could I get my existence; and should I say it frankly, I thought that I had a right to the aid and protection from the country I became a citizen by legal rights, and instead of that I am refused a passport.[25]
The U.S. legation in Russia was uncertain whether Lassonne was an American citizen but received instructions from Secretary of State John Sherman to deny her request. "[B]y the usual rules of continental private international law a woman marrying an alien shares his status, certainly during his life," he wrote; but once widowed the woman "reverts to her original status unless she abandons the country of her origin and returns to that of her late husband."[26]
Chronic arteriosclerosis had left Lassonne severely debilitated, and her doctors feared that a journey to Switzerland or the United States to reestablish residence and citizenship would prove fatal. In 1901 she penned what appears to be her last and most desperate plea to the U.S. government: "Sir, I am an old woman, a great invalid. . . . I can not undertake such a voyage, and if I were to break my home, my connec-
tions, my livelihood to start a new life, should I land there to go the workhouse? I have said all; now remains me to ask you, sir, to take my state into consideration, to grant me that paper, as it is the only means of living quiet the few days that are left to me."[27]
John Hay, who inherited the Lassonne case as the succeeding Secretary of State, told the U.S. ambassador that he must decline her request. "While the Department's sympathies are with Mrs. Lassonne," Hay replied, "it thinks that she is not entitled to a passport as an American citizen."[28] In the eyes of federal officials, the dissolution of their marriages to Americans had rendered Abeldt-Fricker and Lassonne aliens, and the women's absences from the United States and deteriorating health only reinforced the government's inclination to repudiate their claims to U.S. citizenship. These women's access to citizenship had one source: their American husbands. Once death or divorce had dissolved that connection, the obligation of the United States to assist these nonresidents also ceased.
The Bureau of Immigration and Naturalization (transferred to the new Labor Department in 1913) was one of Section 2'S most vocal critics. The Bureau urged imposing new restrictions on the naturalization of citizens' wives, but its laments over the impact of marital naturalization on immigration control were fruitless until the publication of the famous Dillingham Commission reports in 1911. This Commission, charged with the task of surveying immigrant life in the United States, offered corroboration of the Bureau of Immigration and Naturalization's assertion that immigrant prostitutes routinely used marriage to Americans to ward off expulsion or exclusion from the United States.
For decades immigration officials had submitted scattered accounts of fraudulent marriages between Americans and foreign citizens, but not all of these reports in the late nineteenth century highlighted abuses of marital naturalization. Indeed, the main target of the earliest investigations were women who could not receive citizenship through marriage. Immigration officials generally assumed that Chinese women immigrating as the wives of citizens were commodities in the international prostitution trade; but, unlike most citizens' foreign-born wives, these women were racially ineligible for naturalization even if they married Americans.[29]
In his annual report for 1906 the commissioner general of immigration described a prostitution racket flourishing along the Mexican border involving Chinese women who would appear at an immigration inspection station in El Paso with an American husband they had just acquired in Mexico. Once across the border, the brides traveled directly to brothels. These women could not become citizens, but this did not temper the commissioner general's outrage over the complicity of American men of Chinese ancestry in this deception. Here was shocking evidence, he argued, that American citizenship had been "carelessly and inconsiderately conferred" on persons of Chinese heritage and then "prostituted to the accomplishment of results so utterly at variance with American civilization and so repugnant to every moral sensibility of our Christian nation."[30]
The following year, in his report to Congress on the operation of the Chinese exclusion laws, the Secretary of Commerce and Labor alluded to reports that Chinese Americans routinely abused their right to bring wives and children into the country. Claiming that the number of fraudulent wives had now reached "alarming proportions," he seemed convinced that the vast majority of Chinese women who came to the United States as the wives of Americans had married for illicit purposes: "There are, doubtless, cases of a bona fide character—that is, cases in which a real Chinese American citizen brings a real wife to this country, but it is not believed that the files of the Bureau of Immigration contain a record of a case of the importation of a 'wife' of a native that is free from at least a strong suspicion that such 'wife,' if married to the American Chinaman at all, was made a party to such marriage solely for the purpose of evading the exclusion laws and entering this country."[31] Section 5 of the Immigration Act of March 3, 1875, had
made the admission of women "imported for the purposes of prostitution" unlawful, and over the course of the first decade of the next century Congress added further legislative barriers to the admission or residence of foreign-born prostitutes.[32] Whether a prostitute's marriage to a citizen could carry absolute immunity from expulsion, however, remained a debated issue.[33]
The Dillingham Commission contributed to this discussion with an investigation of immigrant women who married Americans either to gain permanent entry into the country or to beat deportation orders. Gathering its information in New York City, the Commission provided documentation of white women's resort to fraudulent marriages to avoid deportation. Although its report was primarily anecdotal, the Commission's accounts of this activity convinced Congress that the 1855 law had indeed provided a convenient means of bringing prostitutes into the country.[34] In one case a police detective in Manhattan assigned to vice work reported that he arrested foreign-born "Mary Doe" in 1908 for prostitution, a crime that carried the penalty of deportation for noncitizens. Although she was convicted, immigration officials delayed her expulsion so she could serve as a witness in another prostitution case. During that opportune postponement of her departure, "Richard Roe," an American, applied successfully to the Department of Commerce and Labor for permission to marry Doe.
A vice detective reported to the Commission that he had subsequently run into the woman on the street, just days after her marriage.
According to his account, she cheerily offered a full confession of her deception:
Don't you know what he wanted from me, that fellow Roe? Don't you know that he had another girl in his house at—street, and when we got there he introduced me to her (an old prostitute named Laura) and told me she was his wife, but that I would stay with them and that we both would make good money by both hustling from his house? . . . I now make $5 or $6 a day, which I keep for myself and Roe stays with his affinity, Laura. Of course, you know, John, that if I married that fellow Roe, it was only to beat deportation and be safe forever, as I am now an American citizen.[35]
The officer added that since this encounter he had espied "Mrs. Roe" taking men back to her house.
Another anonymous member of a Manhattan detective bureau reported a case to the Dillingham Commission that must have acutely embarrassed the immigration commissioner at Ellis Island. The city detective had arrested "Jane Doe" shortly after her arrival in the United States. Although the government detained Doe to serve as a witness in a prostitution case, the detective assumed she was eventually deported. A short time later, however, while patrolling Broadway and Twenty-eighth Street, the officer ran into the woman. He claimed she voluntarily approached him to relate her tale of deceit:
Hello; how are you? You didn't expect to see me back in New York, did you? Well, I am going to tell you the whole thing. An immigration official down on Ellis Island got "dead stuck" on me, because I appeared to be a nice girl when I was down there. I know how to behave, when necessary. This man hired a lawyer for me, who got me out of there on writ of habeas corpus. Some immigration officials got "wise" to the attention that he was paying me, and he was immediately transferred to Texas. But he came to New York a week ago, and he married me in New Jersey. Here is my marriage certificate. . . . I couldn't live with that man, he isn't making enough money. I don't want to go into the dressmaking business and earn $8 or $9 a week when I can make that every day on Broadway.
The detective added that "almost every night I see the said Jane Doe (now Mrs. Doe) soliciting on Broadway and taking men to hotels in
that vicinity."[36] Congress apparently accepted these reconstructed conversations as sufficient corroboration of the Department of Commerce and Labor's reports that fraudulent marriages between American men and immigrant women were growing too common. These "Jane Does" could speak frankly about the circumstances of their marriages because a marriage certificate ensured them against further entanglements with immigration officials. Even if they divorced, these women did not lose their U.S. citizenship unless they committed some act of expatriation after that separation.
Although it was the Dillingham Commission's report that finally spurred Congress to narrow the application of Section 2 of the 1855 act, Secretary of Commerce and Labor Charles Nagel had already raised the issue of fraudulent marriages with Attorney General George Wicker-sham. Nagel and Wickersham, however, had disagreed over the disposition of such cases–a disagreement subsequently reenacted by memhers of Congress debating the virtues and vices of dependent citizenship.
The Secretary and Attorney General's argument involved a "Jane Doe" who had entered the United States in 1907 under an assumed name. After working less than a year as a domestic, she had turned to the more lucrative profession of prostitution. Doe was eventually arrested, and deportation proceedings against her were pending when she was released on bond. Doe did not squander her hours of freedom. She hastily married an American soldier and then challenged the government's authority to deport her. Secretary Nagel argued that any woman who had been a resident of the United States less than three years could not break free of the deportation net simply because she married an American.[37] The Attorney General disagreed with Wickersham, who, inclined to frame the case in more personal terms, was convinced that Doe wanted to remain with her husband. The Attorney General clearly preferred to accept her decision to marry as sufficient evidence of complete redemption from an illicit past. Referring to Kelly v. Owen and the intent of the framers of the 1855 statute, Wickersham informed Secretary Nagel that "Congress considered the fact that a woman was married to a citizen of the United States as indicative of her good character, whatever she may have been previous to her marriage. . . . Character is not immutable, and while acts of prostitution are indicative of bad
character, the entering of a prostitute into the lawful state of matrimony indicates a reformation and present good character, which it is the duty of society to encourage."[38] Nagel considered this a rather naive appraisal of the virtues of Doe's marriage and submitted further evidence that Doe had not adopted the lifestyle of a respectable wife. Apparently, her soldier-husband had been paid for his services as groom and voiced no protest when his bride returned to her illegal pursuits. Immigration officials had rearrested Doe for soliciting less than a month after her wedding.
This new information prompted another and somewhat modified response from the Attorney General's office, this time from the Acting Attorney General Wade H. Ellis. Ellis assured Nagel he could act on his suspicions if the couple did not live as if bound by their marriage vows. Under those circumstances, the Department could declare the marriage fraudulent and deport Doe. Ellis urged Nagel to remain steadfast in his commitment to expose such "fraud of the grossest nature" but cautioned that immigration authorities had to honor the marriage if the parties remained together as husband and wife, even if evidence suggested they were united merely to stay the wife's deportation.[39]
An immigration law enacted in 1903 had given the Commerce and Labor Secretary the final word in deportation cases–unless, of course, the individual claimed she was a citizen. Consequently, women asserting citizenship could request judicial arbitration of their fate.[40] It is likely that the Secretary's decision to consult the Justice Department before submitting his ruling in this case stemmed from a desire to avoid judicial nullification of yet another deportation order. Although his exchange with the Justice Department on this matter left him unsatisfied, he soon received further direction from federal judges on how to proceed in these difficult cases.[41]
As Secretary Nagel's inquiries suggested, the Commerce and Labor Department was not confident that federal judges would support the expulsion or exclusion of citizens' wives. The 1907 Expatriation Act, silent on the status of citizens' nonresident, foreign-born wives, had left this critical issue in the hands of the judiciary, but some federal judges,
such as George Holt and Learned Hand, had already shown they could be more combative than cooperative when dealing with immigration officials. It also was unclear how the Supreme Court might rule on this particular issue.[42] Overall, the federal courts had not been stalwart opponents of the Bureau's efforts to exclude family members who lacked admission qualifications, but prior to passage of the Immigration Act of February 5, 1917, cases involving the exclusion or deportation of citizens' wives had revealed some significant divisions in opinions between the two major arbiters of these women's fates.[43] Between 1907 and 1911 the federal courts issued five major opinions relating to the arrival status of immigrant wives, but the decisions failed to produce a clear set of standards for the disposition of future cases. Insufficient legislative guidance partially explains the elusiveness of judicial consensus in cases involving citizens' wives, but inconsistencies in judicial outcome were also symptomatic of the courts' struggle to reconcile competing policy concerns.[44]
When Egsha Rustigian arrived at Ellis Island from Turkey in 1908 with plans to join her husband in Rhode Island, she was detained for trachoma at the Immigrants' Hospital in New York City. Rustigian's husband, still a subject of the sultan of Turkey, had filed his declaration of intention to become a U.S. citizen in 1906. A "first-paper" (declarant) immigrant, he had not yet submitted a final petition for naturalization when Egsha arrived in New York. Her husband tried to complete his naturalization but ran into resistance when the federal government
discovered that naturalizing him likely meant naturalizing and admitting his ill wife.
District Court Judge Arthur L. Brown supported the government's decision to exclude the woman, agreeing that it was "more consistent with the welfare of the citizens of the United States to deny both than to admit both [to citizenship."[45] But Brown ventured further, questioning whether a nonresident woman could ever become a citizen by marriage. He cited an earlier case involving the exclusion of a citizen's ill child, which he believed contained "expressions which seem to indicate that the political status of the alien wife cannot be changed until she comes within the territorial limits of the United States."[46] There fore, until she gained legal entry, Egsha Rustigian could not claim U.S. citizenship even if her husband became an American.[47]
Legal scholars' reactions to Rustigian testified to the importance of the growing debate over the automatic naturalization and the open admission of citizens' immigrating wives. The Harvard Law Review carried a somewhat perfunctory note on the decision, suggesting that such cases required little deliberation. "That the act [of 1855] should be so construed as to admit persons otherwise excluded by the immigration laws seems unreasonable," declared the editors flatly.[48] The author of an article in another leading law review noted that racial disqualifications had customarily been the only bar to marital naturalization, but the judge's suggestion in this case that it was in the country's best interests to deny both the wife and husband naturalization was unmistakable proof that the United States was now closing its once "open door."[49]
Subsequent decisions would soon undermine Rustigian's precedential influence, but the Department of Commerce and Labor was heartened by one judge's willingness to question the relevance of Kelly V. Owen . In 1868, a person immigrating to the United States or seeking naturalization had faced fewer obstacles than her twentieth century counterpart; it was no longer sufficient to merely prove that the applicant for admission was a free white person, judge Brown had insisted. "She must also be a person not within the classes excluded by the [current] immigration laws."[50]
The following year another judge upheld the exclusion of a woman whose husband was a naturalized citizen. In Ex parte Kaprielian the court (citing Rustigian ) declared that Congress had not intended the 1855 rule "to annul or override the immigration laws so as to authorize the admission into the country of the wife of a naturalized alien not otherwise entitled to enter."[51] A nonresident woman with a citizen spouse did not possess a legal right to enter the United States as a citizen. As long as she remained outside the United States, she remained a foreign citizen.
Rustigian and Kaprielian temporarily provided a more secure foundation on which to rest the argument that the Bureau of Immigration and Naturalization could exclude citizens' wives who by general entry standards were ineligible for admission. But two other cases of citizens' wives that ended more favorably for the women involved soon overshadowed the Bureau's victories. Thakla Nicola had married an American citizen in Syria and had remained in that country for years until her husband wished to bring her into the United States. She was detained upon arrival for medical reasons. Bertha Gendering had married by proxy in the Netherlands and had stayed with her American husband seven years before he deserted her. Gendering was living in the United States with another man, whom she said she intended to marry when she obtained a divorce from her American husband, but immigration officials sought to expel her for entering the United States for "immoral purposes.
Judge Learned Hand might have dismissed the women's appeals by declaring them both inadmissible or deportable aliens, but he ignored Judge Brown's suggestions in Rustigian and focused instead on the two
foreign statutes that had governed these women's postmarital citizenship. Under Turkish nationality law, Nicola had lost her native citizenship on marrying an alien; a similar law governing Dutch citizenship had denationalized Gendering. Judge Hand argued that once these countries dissolved their ties with Nicola and Gendering, the women became U.S. citizens. In view of the State Department's earlier rulings in such cases, the distinguished judge's decision seemed sound. The 1855 statute granted citizenship to a woman who "may herself be lawfully naturalized" at the time of her marriage. The law, did not say, observed Hand, that the woman had to be capable of being lawfully "admitted and naturalized."[52]
The decision in Nicola's case once again cast doubt on the Bureau of Immigration and Naturalization's power to classify citizens' immigrating wives as incoming aliens. The Bureau, which thought Hand's opinion in these two cases was too critical to leave unchallenged, appealed but lost. The appellate judges, commenting on the prostitution charge against Gendering, concluded that at the time of her marriage there was "not a breath of suspicion against her moral character." On their wedding days both Gendering and Nicola could have been lawfully naturalized. "If at the time [of their marriages] they gained American citizenship, how did they lose it?" asked Judge Alfred C. Coxe. "What law deprives a citizen of his citizenship because he is so unfortunate as to have contracted a contagious disease? . . . [A] woman does not lose her citizenship because her health is bad or her moral character open to criticism." The court was undoubtedly also impressed by the fact that if the United States did not accept Nicola and Gendering as its citizens, the women would be stateless.[53]
Although Judge Coxe defended the women's personal qualifications for citizenship, his decision was based on his faith in the societal benefits of women's dependent citizenship. The court's judgment, he advised, was "only important as it asserts the importance of maintaining an undivided allegiance in the family relation."[54] For Judge Coxe, Nicola's
and Gendering's fates hinged ultimately on their preembarkation status as American's wives than on their personal fitness or desire for as Americans wives rather citizenship.
Attorney General Wise, the commissioner general of immigration, and Ellis Island's Immigration Commissioner William Williams were all dismayed by this affirmation of Hand's decisions. Williams, the one most vexed by these decisions, urged seeking vindication in the Supreme Court, but the Attorney General declined to appeal.[55]
Until the practice of marital naturalization ceased in 1922, the foreign-born wives of Americans remained the only foreign citizens able to acquire U.S. citizenship without ever stepping foot in the United States. Minor children could be naturalized through their fathers' acquisition of citizenship, but they still had to enter the United States as legal immigrants to claim the rights and privileges of that status.[56] In contrast, by 1911 the federal courts had moved most citizens' wives beyond the reach of immigration law. The Bureau of Immigration and Naturalization reluctantly adjusted to this situation but did not cease to press for legislation that would give it authority to regulate the entry of Americans' immigrating wives.
In his annual report to Congress for 1909, Commissioner General of Immigration Daniel Keefe presented his blueprint for a new immigra-
tion bill that would amend the 1855 statute to allow the naturalization only of citizens' wives who possessed "the qualifications of race and character required by law of an alien applying for naturalization."[57] Five years later, in a letter to the Senate, the Secretary of Labor voiced concern over the practice of allowing citizens' wives who had never lived in the United States to enter the country as Americans. "In no other one respect are the provisions of law regarding alien immoral women and the trafficking in such women evaded so extensively as by the marriage of such women to American citizens," the Secretary argued.[58] The solution to the problem was to prohibit women of this class from acquiring citizenship by marriage.[59]
Congress did produce a major immigration statute the next session–and overrode a presidential veto in the process.[60] When enacted, the Immigration Act of 1917 was the country's most significant piece of immigration legislation. One historian described its appearance as marking "a turning point in American immigration policy, a definite move from regulation to attempted restriction."[61] The 1917 law, whose provisions were shaped in part by the Dillingham Commission's recommendations, has attracted historians' notice most often for both its reaffirmation of racism's prominence in immigration policy and its introduction of a controversial and long-sought literacy requirement. As a House bill, it had originally included the Labor Secretary's suggested limitation on marital naturalization, but the introduction of this point had aroused fatal opposition on the floor of the House.
The debate over the Labor Secretary's proposal drew out the disparate views held by lawmakers and administrators over what constituted a violation of the spirit and integrity of the 1855 law. Representative James R. Mann of Illinois suspected that denying naturalization to certain citizens' wives violated the constitutional command to establish uniform naturalization standards. (He did not, however, then venture
to question the gender-based standards for expatriation and naturalization as similarly untenable.) "When we say . . . that a person becomes an American citizen, that person is an American citizen for all purposes," Mann argued. William Bennet of New York also opposed the measure but on other grounds, protesting that such a disqualification for naturalization was "putting under the chance of blackmail every alien woman who hereafter marries an American citizen, although she may be chaste as the driven snow."[62]
Most of the early discussions of the benefits and liabilities of marital naturalization had been confined to the correspondence or reports of executive departments and to professional legal journals, but at times such as this, when Congress engaged more directly than usual in discussions about marital naturalization's future, the exchanges were more spirited, confrontational, and, of course, accessible to public view. Although some participants in the discussions about this particular amendment to the law considered the alteration a necessity, the Labor Secretary's suggestion clearly disturbed many members of Congress who held strong views about the sacredness of marriage and the immunity of that relation from government inspection. Many immigration officials cast a jaundiced eye on some immigrant women's marital arrangements, but seeking Congressional assistance to expose their fraudulence meant contending with legislators' unfaltering faith in the redemptive power and sanctity of marriage to an American.
In the end. the new law contained a compromise version of the Secretary's proposal: the new restriction on marital naturalization would apply only to women of "sexually immoral classes" who had committed deportable acts or had been arrested before their marriages to citizens. Postmarital misconduct was not grounds for denaturalization, and in these cases immigration officials could not interfere with the husband's claim on his wife's citizenship. As long as she shared his status as an American, the federal government could not challenge her naturalization. This policy would remain unaltered but was rather short-lived. Five years later, Congress repealed Section 2 of the Naturalization Act of 1855.
Few of the country's lawmakers could imagine that the foreign- born woman naturalized by marriage suffered from the incontestable forfeiture of her premarital citizenship. She had become, after all, a compatriot—an American. The prevailing attitude in Congress from 1855 to 1920 was that the conveyance of citizenship to the citizen's wife cost the giver and receiver little, if anything—a view that persisted until the ratification of the Nineteenth Amendment forced a reassessment of the accuracy of that equation. Refusing to concede that marital naturalization was fundamentally a policy of coercion rather than choice, the country's legislators long praised the automatic naturalization of foreign wives as a generous bestowal of citizenship on immigrant women. In reality, it was a nod to male prerogative, the power of the federal government, and the principles of international comity. As a policy incentive, the importance of securing women's political rights simply could not compete against these forces.
The woman naturalized by marriage to an American did not receive a certificate of citizenship from the federal government—the government's reminder to her that a marriage certificate was the only document supporting her claim to U.S. citizenship. Immigrant women sustained another major assault on their already impaired "natural and inherent" right to determine their citizenship when the U.S. government guaranteed that no married woman in the country would be able to initiate her naturalization. If an immigrant wife wanted to become an American, she would have to wait until her husband held the rank of citizen.[63]
By 1907, federal law had reduced the immigrant wife's citizenship to a mere reflection of her spouse's status. If she was naturalized, the government did not have to treat her as an individual possessing an independent claim to U.S. citizenship; rather, her assumption of citizenship best confirmed her husband's and the federal government's ability to manipulate that status. Certainly, as federal legislators generally assumed, many resident, foreign-born women did welcome the protections that U.S. citizenship granted, but lawmakers' presumption that the unsolicited claim of the United States on these women's loyalty
conformed to the ideal of consensual citizenship bared the insidiousness of marital naturalization.
The true substance of legislators' commitment to marital naturalization became apparent after ratification of the woman suffrage amendment. Although in the 1910s support for dependent citizenship finally began to show some sign of yielding to reformers, the 1920s heralded its collapse. In guaranteeing an independent vote to the woman naturalized by marriage, the new Nineteenth Amendment gave her citizenship an independence and energy the framers of the 1855 law had never imagined. Rapidly draining away many of the rhetorical resources long held by the Congressional champions of dependent citizenship, women's enfranchisement proved fatal for marital naturalization. Derivative citizenship could no longer function exclusively as the agent of marital solidarity and patriarchal power if it also served as married women's pathway to achieving an autonomous political voice.
From 1907 until 1922, woman's rights activists' commitment to independent citizenship consisted of a two-pronged assault against marital expatriation and marital naturalization; but until 1920 the majority of Congress's members felt reform in these areas was not politically imperative. Legislators' staid indifference to the plight of expatriate women and their fear that citizens' foreign wives would not seek citizenship independently stalled reform during those years, as did the realization that the alteration or repeal of the rule of derivative citizenship would precipitate conflicts in international law. Finally, the powerful ideal of marital unity continued to shield derivative naturalization from mortal challenge. This roseate view of family relations long obscured the political transgression of binding a woman to her husband's country without her explicit consent. By romanticizing domestic life, equating a woman's relinquishment of basic elements of personal identity with marital fidelity, and presenting what was legally mandated as merely Congress's recognition of a natural shift in allegiance, this forced passage from one citizenship to another could easily be represented as a voluntary act of wifely devotion but never as a grievous loss of civil and political rights. This view of marital harmony long sustained the public's toleration of derivative citizenship, and legislators' ever-ready appeals to family unity allowed them to dodge tough questions about derivative citizenship's legitimacy. Ultimately, however, changing political realities did force most federal lawmakers to choose between voluntarily abandoning their defenses of derivative citizenship
or enduring the dethroning of their views. Faced with increasing demands to curb immigration, to raise the standards for naturalization, and to attend more assiduously than in the past to the expressed interests of its newly enfranchised female constituents, Congress eventually had little choice but to respond decisively to growing dissatisfaction with marital naturalization.