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immigrated to the United States and who had resided continuously in California since that time, without any intention of returning to live in his native country.

Mr. and Mrs. Mackenzie established their home in San Francisco. By her marriage Mrs. Mackenzie had ceased to be an American citizen under the terms of the act of 1907. Nevertheless, she continued after her marriage to take a prominent part in civic affairs, just as she had done prior thereto. She was very active in the campaign which established woman suffrage in California long before the ratification of the nineteenth amendment to the United States Constitution.

However, the constitution of the State of California permitted only United States citizens to vote. When Mrs. Mackenzie went to register as a legal voter, she was not permitted to do so.

She was told that although she had never lived outside the United States, the act of 1907 had made her an alien upon her marriage to Gordon Mackenzie, and that she therefore was prohibited the right to vote by the California constitution.

Mrs. Mackenzie was not satisfied with the decision of the San Francisco board of elections, and took the matter to court to compel the board of elections to register her as a legal voter of California. Eventually the case reached the Supreme Court of the United States," and the decision of that court in 1914 is the outstanding court opinion interpreting the act of 1907.

It was argued in Mrs. Mackenzie's behalf that she had become a citizen of the United States by her birth in this country, as the fourteenth amendment to the United States Constitution provides:

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 court conceded that she was a citizen at birth, and would have been even before the ratification of the fourteenth amendment. Then Mrs. Mackenzie argued that citizenship is a twofold relationship with neither the Government nor the individual can terminate without the concurrence of the other. This being so, she argued, Congress was without power and authority to enact such an expatriation law as that of 1907. In other words, she contended that the Constitution gave Congress the power to confer citizenship but not the power to take it away, except as a punishment for crime or upon the individual's own voluntary expatriation. A mere statute, she said, could not deprive her of a constitutional right.

Here Mrs. Mackenzie and the Supreme Court parted ways. The court stated that the dual relationship referred to was not involved in this particular case, and further stated that since the United States is invested with all the attributes of sovereignty, and since it has the character of nationality, it also has a power incidental to its sovereignty, the authority to deal with questions of nationality.

The court then pointed out that the terms of the 1907 act were clear and unequivocal, and that Mrs. Mackenzie's marriage with a subject of Great Britain had been entered into voluntarily, with notice of the consequences. In the opinion of the Supreme Court of the United States, therefore, this marriage indicated Mrs. Mackenzie's election

Mackenzie o. Hare, 1914, 239 U. S. 299.
CI. Williams's case, Wharton's State Trials, p. 602.

to expatriate herself, and her petition to compel the board of elections to register her was dismissed.

After the act of 1907, then, the American woman automatically lost her citizenship upon marriage to an alien, regardless of where she may have resided or what her wishes in the matter may have been. Before 1907 the American woman who married an alien lost her native citizenship only if she elected by affirmative act to sever her allegiance to the United States, or if she went with her husband to reside permanently in his native country and acquired as the result of the marriage the nationality of her husband's country. Under the 1907 law she lost her citizenship even though she continued always to live in the United States and never intended to move to another land.

While expatriation of married women was automatic under this law, there seemed to be some little compensation for the loss in the fact that upon the termination of the marital relationship a former American woman could readily resume her American citizenship. However, there were many women who found themselves unable to resume their citizenship under this law. The leading case of this kind is that of Augusta Louise de Haven-Alten, the names of whose ancestors and relatives are closely associated in American history with deeds of patriotism and valor. Augusta Louise was born in New York City, August 21, 1867. Her father was Capt. Joseph E. de Haven, one of the prominent naval commanders of the Civil War.

Augusta was only 3 years old when her mother died. For a few years after that she lived with her grandmother in Chicago, but later moved to Switzerland with her father. Shortly after her father's death in 1882, she met a young German officer by the name of Von Alten, who was studying in Geneva. Augusta and Von Alten were married in 1886.

At the time of their marriage, our statutes still said nothing about the effect of an American girl's marriage with a foreigner upon her citizenship status. Under the law of the North German Union, however, Augusta became a German subject by reason of her marriage. Then, too, as in the case of Nellie Grant Sartoris, a treaty, which had been signed by the United States and the North German Union, compelled the United States to recognize Augusta Louise as a naturalized subject of the North German Union.6

The German law not only made Augusta a citizen of that country because of her marriage to Von Alten, it also gave Von Alten full control of what property his wife had. As the legatee of a will, Mrs. de Haven-Alten had a $100,000 estate, and she also received a substantial annuity from a trust fund administered in Chicago. Von Alten, of course, could not appropriate his wife's income from the trust fund; but he did take custody of the $100,000 estate.

It appears that the marriage was an unhappy one. In 1906 Augusta and Von Alten entered into an agreement to live separately and apart. By that time Von Alten had dissipated all of the $100,000 estate except $25,000. In 1912 Augusta sued Von Alten for divorce; but the World War came on, and the case was left pending because of Von Alten's status as a German officer. By 1916 communications with Austria, where Mrs. de Haven-Alten was living, had become so disrupted by the war that payments of her trust income did not reach her. The next year the United States entered the war, and Augusta, although an American-born woman, was declared to be an alien enemy of the United States because of her residence and her expatriation by marriage to the German subject, Von Alten. The Alien Property Custodian of the United States thereupon took possession of the accumulated income from the trust fund, and ordered future payments to be made to him.

6 Treaty between North German Union and the United States, Feb. 22, 1868; “Treaties, Conventions etc.," II, 1928.

In October of 1919, Mrs. de Haven-Alten returned to the United States on a cretificate showing that she was a native-born American. She could not obtain an American passport because of her marriage with a German, and she refused to travel on a German passport. She was penniless when she arrived in this country, her husband had the money from her estate and the Alien Property Custodian had the accumulated income from the trust fund. She had not been able to bring her petition for divorce to trial. Furthermore, she could not recover her accumulated trust income from the Alien Property Custodian because she was a German subject in the eyes of our law, and because no provision had yet been made for the disposition of the property and money of alien enemies seized by the United States under the provisions of the trading with the enemy act of October 6, 1917.? If she could become an American citizen again, this money would be payable to her.

İnasmuch as she was destitute and she could nowhere obtain a divorce in this country in less than six months, Mrs. de Haven-Alten sought readmission to American citizenship. True, the expatriation act of March 2, 1907, in addition/to declaring that marriage with an alien should automatically give an American woman the status of her alien husband, had provided a way for a former American woman to resume her native citizenship upon the terminition of the marital status. Still, the act of 1907 was of no benefit to Mrs. de Haven-Alten, since her status as the wife of Von Alten had not been and could not immediately be terminated. The treaty of peace with Germany had not yet been signed, and no one could tell what might happen to her money if she did not recover it before the treaty should be signed and ratified. Mrs. de Haven-Alten could find relief in one way only, and that was by special act of Congress.

When the matter was presented to Congress, it was referred to the Committee on Immigration in the Senate. That committee considered her case in connection with the precedent which had been established by the special act readmitting Nellie Grant Sartoris to the status and privileges of a citizen. In fact, the act for the benefit of Nellie Grant Sartoris had served as a precedent not only for readmitting to citizenship other women in Mrs. Sartoris's position, but also for completing defective naturalization of certain men.

1 40 Stats. L, Vol. II, p. 411.

Cases of naturalization by special act of Congress for which the Nellie Grant Sartoris act served as a precedent are as follows:

Women-Marguerite Mathilde Slidell d'Erlanger (S. 8075, 64th Cong., 2d sess., Mar. 4, 1917; 39 Stat. L. 1588). Frances S. Mumm (66th Cong., ist sess., Oct. 14, 1919, 41 Stat. L. 1449). Augusta Louise de Haven-Alten (S. J. Res. 134, 66th Cong., 2d sess., Apr. 8, 1920; 41 Stat. L. 1463).

Men-Joseph Tousaint (S. 3694, 55th Cong., 3d sess., Feb. 14, 1899; 30 Stats. L. 1521). Fred Weddle (8. 1794, 56th Cong., 1st sess., June 6, 1900; 31 Stat. L. 1617). John Hornick (H. R. 8108, 57th Cong., 1st sess., June 30, 1902; 32 Stat. L. 1492). Augustus Trabing (S. 4348, 59th Cong., 2d sess., Jan. 26, 1907; 34 Stat. L. 2411). John B. Brown (H. Ř. 15594, 59th Cong., 2d sess., Feb. 9, 1907; 34 Stat. L. 2411). Eugene Prince (H. J. Res. 220, 62d Cong., 2d sess., July 19, 1912; 37 Stat. L. 1347). George Edward Lerrigo (S. 3419, 63d Cong., 1st sess., Feb. 23, 1915; 38 Stats. L. 1376). Joseph Beech (s. J. Res. 208, 64th Cong., 2d sess., Feb. 26, 1917; 39 Stats. L. 1495).

(Compiled from Cumulative Digest of International Law and Relations. American University Graduate School, Washington D. C., No. 8, Oct. 8, 1930.)




Following that precedent, the Senate committee passed favorably upon a bill to readmit Mrs. de Haven-Alten to United States citizenship, and the House committee did likewise shortly thereafter.

A few weeks later, after passing both House of Congress, the following special act became law on April 8, 1920: Resolved

That Augusta Louise de Haven-Alten, a native-born citizen of the United States, who forfeited her citizenship by marriage with an alien, be, and she is hereby, on her own application, unconditionally readmitted to the character and privileges of a citizen of the United States.'

Mrs. de Haven-Alten thereupon immediately regained her American citizenship and recovered her property from the Alien Property Custodian.

Congress has at least a dozen times followed the precedent established by the special act passed in behalf of Nellie Grant Sartoris. Indeed, in colonial history we find that the States also had used this naturalization device. Shortly after the close of the Revolutionary War, both Maryland and Virginia passed special acts to make Lafayette and “his heirs male forever" citizens of those States.10 In this connection, however, we must bear in mind that State citizenship and United States citizenship are separate and distinct. Thus, by virtue of the fourteenth amendment of the Constitution every person born or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States and the State wherein he or she resides. State citizenship is established by residence, and it is not necessary to be a United States citizen in order to be a citizen of one of the States. Very frequently the two overlap, but they should not be confused.

Certain limitations on Congress's power to deal with United States citizenship are laid down in the Constitution. The Constitution declares that Congress shall have power "to establish an uniform rule of naturalization.” 11 Obviously a rule of naturalization is not uniform unless it operates equally throughout the whole of territorial United States, and unless it applies equally to a given class of individuals. These two elements are essential. Without them, a rule of naturalization is not uniform, and therefore is contrary to the Constitution.

The private act readmitting Nellie Grant Sartoris to United States citizenship, and the many other special acts for which hers served as a precedent, including the one passed for Mrs. de Haven-Alten, ore rules of naturalization. Each of thein, however, was a private act for the benefit of one particular person. For that reason they did not fulfill either of the two essential requisites of a uniform rule of naturalization, and all of them exceeded the legislative authority granted Congress by the Constitution. As Chief Justice John Marshall said in Osborn v. United States Bank: 12

The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.

After the de Haven-Alten act was passed, the question of Congress's power to pass such acts was raised in the House Committee on Immigration and Naturalization. The function of that committee is to pass on all such matters, and since 1921 it has consistently refused to approve any bills proposing naturalization of any person by special act of Congress.13* Many meritorious cases came before the committee, demonstrating clearly the inadequacy and unfairness of the laws then governing the citizenship of married women.

• Cf. note 8 above, “Women."

10 Maryland, act of General Assembly of Maryland, 1784, Ch. XII. Virginia, act of General Assembly of Virginia, 1785, Ch. V.

11 United States Constitution, Art. I, sec. 8, clause 4. 11 Osborn v. United States Bank (22 U. S. 737, 827).

Following the lead of other nations, the United States in 1907 adopted the principle of single identity absolutely. Alien women who married Americans or whose alien husbands became naturalized citizens thereby automatically became citizens also, whether they wished to do so or whether they were even qualified for citizenship. American women were subjected to even greater hardships by the act of 1907. When they married aliens, forthwith they were deprived of their birthright and became aliens. Of course, when their husbands died or were divorced, these women could be repatriated. There were many cases like that of Augusta Louise de Haven-Alten, for whom the means of repatriation provided by the act of 1907 proved wholly inadequate.

In time the need of general remedial legislation became apparent, and the individual cases which came before the committee finally led to the enactment of the married women's independent citizenship act of September 22, 1922.


For centuries, therefore, male legislators and jurists had jealously preserved the husband's dominance and had limited the wife to a negligible sphere of activity and assigned her to an inconspicuous position in the eyes of the law. This situation was not destined to continue forever, however. In 1800 married women began openly to fight for their rights. They met their earliest success in 1856 when statutes first were enacted to grant married women independent control of their own property and permit them to contract in their own right. Immediately following that came a valiant three-quarter century struggle for woman suffrage, which culminated in the United States in the nineteenth amendment to the Constitution.

Long before that amendment was ratified the fight for citizenship equality had already begun. As early as December 6, 1910, a bill to grant women citizenship, independence, and equality had been introduced in the House of Representatives by Congressman Edward Thomas Taylor of Colorado. This bill was aimed at the repugnant act of 1907, which deprived of their native citizenship those American women who married foreigners, and compelled them to take the citizenship of their husbands, regardless of how these women may have felt about the matter or what they may have wished to do about their citizenship. Then it was that marriage had become a naturalization process not only for the alien woman who married an American, but also for the American woman who married an alien. If the husband changed his citizenship, his act changed that of his wife also. The wife had nothing at all to say about it; she could enjoy no citizenship status independent of or different from that of her husband.

13 Authority of Congress to pass a special act admitting individuals to the Status of citizens; cf. “Natu ralization of Individuals by Special Acts of Congress, “hearings before the Committee on Immigration and Naturalization, House of Representatives, Sixty-seventh Congress, first session, on H. J. Res. 79; serial 6, May 17, June 3 and 27, 1921.

· H. Ř. 27840, Sixty-first Congress, third session; "House bills." Sixty-first Congress, third sess. I vol. 2.

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