Wives, mothers, and citizens: the treatment of women in the 1935 nationality and citizenship act

"CLEARLY, male Irish political leaders saw women only in domestic terms. Women were mothers. Women were wives. Women minded the hearth and home." (1) Most historians would accept this evaluation of the position of women in the early years of the Irish Free State, but there are a number of dissenting voices. Caitriona Clear rejects the idea that there was a "domestic ideology" in Ireland in the first decades after independence; she argues that the attacks on women's citizenship and employment rights in Ireland in the 1920s and 1930s-"substantial as they were--were piecemeal and inconsistent." (2) She proceeds to note that "de Valera's irritation at feminist opposition to the constitution [of 1937] suggests that he did not inhabit a political environment that was entirely indifferent to women's views: indeed, he told the late Professor T.P. O'Neill that Ivy Pinchbeck's Women Workers and the Industrial Revolution (1933) had had a major impact on his thinking and forced his attention onto protecting Irish women and children from the worst effects of what he hoped was Ireland's industrial revolution. The fact that de Valera felt the need to invoke a feminist authority for his reference to women in the Constitution is indeed significant." (3)

This is not the only instance where de Valera invoked feminist authority for his actions. In 1934, at de Valera's request, John J. Hearne, the legal adviser of the Department of External Affairs, sent draft clauses from the 1934 Irish Nationality and Citizenship Bill to Mice Paul with a request that she comment on them. Alice Paul was a prominent equal-rights feminist in the United States, founder of the Congressional Union for Woman Suffrage and the National Woman's Party, and the author of the Equal Rights Amendment, an unlikely point of reference for de Valera or indeed any leading Irish politician at this time. The clauses sent to Mice Paul related to the treatment of citizenship in marriages between an Irish citizen, male or female, and a foreigner. The citizenship of women in transnational marriages was a topic of major concern to women's organizations during the 1920s and 1930s. In Ireland the matter was inextricably linked with efforts by the new state to establish that Irish citizenship was not simply a local variant of British nationality but rather a distinct status with international standing. (4) The clauses relating to married women provide new insights into de Valera's attitude toward women, citizenship, and the family that may require us to reconsider the comparable clauses in the 1937 constitution. But first it is important to examine why the citizenship of women who married foreigners became such a heated issue in the interwar years.

I

In 1914 it was the almost universal practice that a woman who married a citizen of another country automatically lost her citizenship of birth and acquired that of her husband. Under common law, which applied in Britain and Ireland, marriage had no impact on nationality, (5) but in 1870 the United Kingdom parliament passed the Naturalisation Act, which provided that a British woman who married an alien automatically lost her British nationality, even if she continued to reside in the UK. This provision complemented legislation introduced in 1844, providing that an alien woman who married a British subject would be deemed a naturalized British subject with all the rights and privileges of a natural-born subject. (6) These laws were consistent with widely held Victorian attitudes toward marriage and the family: the belief in the unity of the family and the conviction that husband and wife had complementary roles, with the woman responsible for the private sphere. One legal scholar noted that "the rational basis for the rule that a woman should assume the nationality of her husband was the general subjection, under most legal systems, of the wife to the husband." (7)

In Britain the provision that a woman who married an alien should automatically lose her British nationality and assume his legal status appears to have first attracted significant criticism during the war years of 1914-18, when British-born women who were married to German citizens and living in Britain found themselves subject to the Enemy Aliens Act of 1914, which gave the home secretary authority to prevent them from leaving the state, to restrict their movement within Britain, and to search or intern them. (8) Furthermore, under articles 296 and 297 of the Versailles Treaty all enemy aliens lost their beneficial interests in property held in Britain as of 11 January 1920; some exceptions were made as an act of grace but not as a legal right. These provisions even applied to women who had long been separated from or abandoned by a German husband. (9)

In 1922, following concerted lobbying by the Women's Joint Congressional Committee and with the support of anti-immigrant congressmen on the House Immigration and Naturalization Committee, the US Congress passed the Cable Act. This stipulated that a female US citizen who married a foreigner could not lose her US citizenship unless she formally renounced it before the courts. But if she married a foreigner who was "ineligible by race for naturalization," that is, a Chinese national, she would automatically cease to be a US citizen. Foreign women who married US citizens were no longer automatically entitled to US citizenship; they were required to apply for naturalization after their marriage, although the terms were more favorable than those which generally applied, mandating only one year's residency in the US as against five years in the case of other applicants for naturalization. (10) This meant that a British woman who married a US citizen automatically lost her British nationality, but had no automatic entitlement to become a US citizen herself.