Wives, mothers, and citizens: the treatment of women in the 1935 nationality and citizenship act.
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.
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.
In the case of women who had qualified for Irish citizenship under the 1922 constitution, (11) the Department of External Affairs determined that they remained Irish citizens, because no provision existed for losing or relinquishing Irish citizenship, and thus they remained eligible for an Irish passport. (12) But this decision proved to be of little help because the majority of Irish-born women who were affected adversely by the Cable Act had left Ireland before 1922 and were therefore not eligible for Irish citizenship. (13) Furthermore, article 3 of the 1922 constitution specifically referred to the privileges and obligations of citizenship applying "within the jurisdiction of the Irish Free State."
Article 3 also specified that "the conditions governing the future acquisition and termination of citizenship shall be determined by law." When the Department of Justice began to draw up guidelines for such legislation in 1924, it recommended that the treatment of women in transnational marriages should follow the British model. Thus an alien woman who married an Irish male citizen should automatically become an Irish citizen on marriage, and an Irish woman who married an alien male would automatically lose Irish citizenship, though Justice officials recommended that she should be enabled to resume Irish citizenship and to extend it to her children if the marriage was ever terminated. The drafters of the memorandum were uncertain whether or not Irish citizenship by descent should pass through the female line. British nationality was only transmitted through the male line, but the 1922 constitution provided for Irish citizenship by descent from either parent. Officials in the Department of Justice queried whether the proposed legislation should adopt a similar principle, though the overall tone of the memorandum was not sympathetic to this position. Nevertheless, they suggested that the minister of justice should be given discretionary power to deal sympathetically with special cases. Whenever a marriage had broken up and the woman wished to resume Irish citizenship, the minister should have the power to confer Irish citizenship on the children of such a marriage in cases of hardship. (14) These views were consistent with the conservative attitude toward women expressed by Minister for Justice Kevin O'Higgins. (15)
The enactment of Irish nationality legislation was delayed until the 1930S because Irish government ministers initially attempted to keep Irish legislation consistent with proposed changes in British or Commonwealth nationality law. The British Nationality and Status of Aliens Act of 1914 established a "common code" of nationality throughout the empire, and despite lengthy discussions on this matter at the Imperial Conferences in 1923, 1926, and 1930, and by a special conference that met in the autumn of 1929, it proved impossible to secure unanimous agreement to changes to this "common code." The deadlock occurred at a time when the relationship between Britain and the dominions was evolving toward the more egalitarian arrangements that were reflected in the 1931 Statute of Westminster. As a result, the British Nationality and Status Act of 1914 (with minor amendments passed in 1918) remained in force until it was superseded by new legislation in 1948. (16)
The inability to agree on the treatment of women in transnational marriages was a major factor delaying new legislation on nationality. Despite repeated pressure from women's organizations and MPs in all parties, Britain refused to amend the law governing women's nationality unless all the dominions agreed to introduce identical legislation--thereby maintaining the common citizenship code. But while there was widespread consensus on the need to amend the existing legislation, British politicians disagreed about the extent of the necessary changes. Some wanted to deal only with hardship cases--women who were stateless or women whose marriages to foreigners had broken down--whereas the women's organizations were demanding equal citizenship under which marriage would have no bearing on a woman's nationality. (17)
The contribution made by Kevin O'Higgins at the 1906 Imperial Conference to the negotiations that transformed both dominion status and the nature of the relationship between Britain and the dominions has been widely recognized, (18) O'Higgins played a similarly active role in the debate at that conference over the nationality of married women, although on this issue he was on the conservative side. He explained to the delegates that "there is not in the Irish Free State the same pressure from feminist movements, which, as the secretary of state [for home affairs] has informed the committee [dealing with nationality issues] exists in Great Britain. We have, of course, woman suffrage." If the changes sought by feminist groups were introduced--providing that a woman would retain her citizenship of birth after marriage to a foreigner--O'Higgins cautioned that they would give rise "to problems at least as serious as those which they are now intended to solve in the event of a future war." Separate nationalities for a husband and wife were "not quite in accord with the concept of a Christian marriage," and they could result in a husband and wife being placed "in the relation of aliens each to the other, possibly enemy aliens." He did not believe that legislation embodying the principle of a wife's right to a separate nationality would be accepted in the Irish Free State. In an echo of his much quoted remark about the Irish being the "most conservative revolutionaries in history," he declared:
We are a conservative people, despite superficial evidence to the contrary. We do not wish to alter the principles underlying the nationality of married women under pressure of problems created by the stress of abnormal times; and furthermore, we are not satisfied that the proposals put forward to settle those problems will not give rise to problems similar to, if not identical with, those which they are intended to solve. (19)
Nevertheless, when the Imperial Conference committee on nationality met for a second session on 3 November 1926, Patrick McGilligan, the minister for industry and commerce, explained that the Irish delegation was prepared to enable women who married aliens to retain British nationality for a temporary period in order to prevent them from becoming stateless. (20) Canada had tabled a series of amendments for consideration by the committee on 29 October; two related to the nationality of married women. The first provided that a British woman would not lose her nationality on marriage to a foreigner if she did not acquire the nationality of her husband under the law of his country. On the other hand, her entitlement to British nationality would cease if she did not acquire the nationality of her husband within one year of being in a position to do so under the laws of her husband's country. The second clause proposed to terminate the automatic right to British nationality of an alien woman who married a British subject. (21) Despite McGilligan's statement, the chairman of the nationality committee, British Home Secretary Sir William Joyson-Hicks, noted that all the delegates with the exception of those from the Irish Free State and South Africa had agreed to alter the law regarding the nationality of married women. (22) O'Higgins suggested that the British Foreign Office and Home Office were not in agreement about possible changes to the law, and that they were using the alleged opposition of the Irish Free State and South Africa as an excuse for inaction. He claimed that if the disagreement within the committee concerning the nationality of married women became known, that he and Mr. Smidt, a South African delegate, "would be delivered into the hands of the feminist organisations of the Commonwealth of Nations as a whole burnt offering. They would be made the scapegoats and would be represented as the enemies of mankind. That was not the position." Sir John Anderson reassured O'Higgins that no statement had been made at Westminster blaming the dominions for the failure to resolve the problems over the nationality of married women, and I have no found no evidence that would refute this claim. Still, O'Higgins insisted that the draft report should be revised in order to protect the anonymity of the various delegates. (23) In August 1932, however, John J. Hearne, the legal advisor to the Department of External Affairs, noted that "British policy has been to inform the Six Points Group and other feminist organisations that but for South Africa and the Irish Free State, Great Britain would be prepared to accept the point of view of those organisations." As Hearne insisted, "Nothing could be further from the truth." (24) The divisions among the dominions over women's citizenship mirrored the divisions within Britain between those who wished to legislate on the basis of equal rights regardless of gender, and those who wished to preserve the principle that a couple and their children should have a common citizenship, but were prepared to provide for exceptions to this principle in cases of hardship. The Imperial Conference of 1926 referred this and other contentious matters to a Committee on the Operation of Dominion Legislation that met in October 1929, but its members failed to resolve the matter. (25)
In 1930 attention shifted to the Hague where a subcommittee of the League of Nations was meeting to deal with the codification of international law relating to nationality. It would appear that the League stumbled unknowingly into this controversy. The subcommittee was primarily concerned with sorting out anomalies in nationality law in the aftermath of the 1914-18 war: persons who were stateless because they had been displaced from their homeland or because of boundary changes, and persons who held dual or multiple nationalities for similar reasons. The only reference to women in the draft convention was the inclusion of a provision that would have ensured that a woman who married an alien would not become stateless. (26) By 1930 the legal status of women in international marriages was becoming less uniform. One the eve of World War I the only countries where a woman who married a man of a different nationality did not automatically assume the nationality of her husband were several republics in South America. By 1930 they had been joined by the USSR (1919); Belgium, the USA, and Estonia (1922); Norway, Rumania, and Sweden (1924); Denmark (1925); Yugoslavia (1928); Albania, China, Persia, and Cuba (the last four in 1929), though the provisions varied. (27)
At the Hague it soon became apparent that opinions were deeply divided on the matter, and that the divisions were not based simply on gender. Many delegates from national and international feminist organizations lobbied for the Hague protocol to affirm the principle of equal-citizenship rights regardless of gender and argued that marriage should have no bearing on a woman's nationality. But organizations representing Catholic women were equally insistent in demanding that the common citizenship of the family should be preserved. Before leaving for the Hague, the Irish minister for external affairs, Patrick McGilligan, met Senator Jenny Wyse Power, Miss Dobbs, and representatives of a number of Irish women's organizations, and while at the Hague, the Irish delegation was lobbied by women advocating both equal rights and the unity of the family. (28) The delegation included a woman barrister, Agnes Phelan, an appointment that left the British authorities wondering whether they should do likewise, because they were coming under pressure from UK women's organizations to include a woman in their delegation. (29)
The Hague conference declined to draft a convention providing for equality of the sexes, because in the general view of the delegates it would prove extremely difficult, indeed impossible, to obtain sufficient support from member states to ensure its acceptance. The underlying principle behind the Hague Convention was to ensure that nobody would be stateless, and that nobody should have dual citizenship, and its treatment of women in international marriages exemplified these principles. Article 8 provided that if the national law of the wife should cause her to lose her nationality on marriage with a foreigner, this consequence would be conditional on her acquiring the nationality of her husband. Article 9 extended this principle to cases where the husband's nationality changed during marriage. Article 10 stipulated that where a husband became naturalized abroad during the marriage, the wife should not lose her nationality or acquire her husband's new nationality unless she declared her willingness to do so. (30) These articles fell far short of the demands for full equality of the sexes, but in an attempt to placate the feminist lobby the conference adopted two recommendations proposed by the US and Belgian delegations. The US recommendation stipulated that member states should examine whether it would be possible "to introduce into their law the principle of the equality of the sexes in matters of nationality, taking particularly into consideration the interests of the children." And the Belgian delegation urged member states "to decide that in principle the nationality of the wife shall henceforth not be affected without her consent, either by the mere fact of marriage or by any change in the nationality of her husband." (31) The Irish delegation supported the US resolution. (32)
The Hague Convention proved to be the opening round in an international debate over the nationality of married women. In January 1931, following further lobbying by dissatisfied feminist organizations, Guatemala, Peru, and Venezuela asked the council of the League of Nations to reconsider the matter and to report to the annual assembly in September. The council then requested the secretary-general to ask for a report on the subject from nine international women's organizations that had been especially concerned with this issue. (33) A committee drawn from these organizations demanded that a new convention, based on the principle of equality between men and women, should be drafted and submitted to all member states. (34) The most overt opposition to this position came from the International Union of Catholic Women's Associations, which claimed to represent 25 million Catholic women around the world. The memorandum from this body argued that the dominant principle in nationality legislation should be the unity of the family (that is, a husband, his wife, and their children should share a common nationality); the aim of any new laws should not be emancipation of women. (35) English Catholic women's organizations rejected this position, and in 1932 the International Union of Catholic Women's Associations produced a more nuanced document which stated that "although identity of nationality is in principle an undisputed factor in the unity of the family, it must nevertheless be recognised that in some circumstances differences of nationality are not calculated to affect such unity." (36)
At the Hague the Irish delegate John Hearne had emphasized that the Irish government's support for the controversial articles was based on "fundamental social principles and very fundamental religious principles." Specifically, he noted the importance of "the religious union of husband and wife and the social unity of the family." But the official view was contested. The Irish women's organizations that lobbied the government were determined supporters of the principle of equality (37) When the matter was discussed at Geneva in 1931, the Irish delegates adopted a middle course. They pointed out that the Hague protocol was designed to meet a number of "immediate and urgent problems" in the areas of statelessness and dual nationality, but that it was never designed to be the final word on the subject, and they wanted the question to be further investigated. In a precocious and unusual example of media-awareness the file noted that "the minister [Patrick McGilligan] is most anxious for political reasons connected with his constituency that the report [presumably the report on the Irish delegates' actions] should be inserted in the press." (38) A senior British official at Geneva complained to his colleagues in London about the Irish delegates' conduct:
The Irish Free State are quite impossible; they want to have the best of both worlds. Hearne made a speech the other day at the League of Nations Union here in which he talked about Irish nationality as the only thing with which the Free State had any concern, and he said in effect that they had nothing to do with British nationality. At the same time he indicated considerable sympathy with the women's point of view in claiming a position of equality with men in regard to nationality, and [these words were added in pen] according to my information, which may not be correct, [Hearne] indicated vaguely that the Irish Free State might give effect to this principle in their legislation about Irish nationality. (39)
This is an accurate assessment of the Irish position on two issues: an insistence that Irish nationality was distinct from British nationality, and that Irish views on the nationality of married women were moving toward recognition of equality between the sexes. The first had already been well signaled, but not the second. In 1926, Kevin O'Higgins informed the Imperial Conference that legislation on matters concerning nationality and aliens was a matter for the parliament of the Irish Free State to decide. (40) A memorandum by Joseph Walshe, secretary of the Department of External Affairs, noted in February 1930, "We are vitally interested in the question of the acquisition and loss of nationality and the right of each state to regulate such acquisition and loss." (41) By 1931 it was apparent that although British ministers was still attempting to preserve a common nationality code within the empire, and therefore trying to ensure that all the dominions adopted a common stance at Geneva, they were no longer making a serious effort to keep the Irish Free State within the fold. Reporting from Geneva in September 1931, O.E Dowson, legal advisor to the Home Office, reported that "the Irish Free State are really out of the picture. (42) On 12 February 1932, just days before the Irish general election, a British interdepartmental committee concluded that "the danger of a breach of uniformity between the Irish Free State legislation on nationality and the legislation of the other members of the Commonwealth is not specially related to the question of the nationality of married women: It is a general danger." (43)
The debate at Geneva concerning the nationality of married women was increasingly following the earlier pattern of the Imperial Conferences: long, inconclusive discussions with no final decision. When discussions resumed in the autumn of 1932, McGilligan and Cumann na nGaedheal were out of office, and Eamon de Valera was acting president of the League of Nations. Ireland's position on the committee dealing with the nationality of married women was filled by J.J. Hearne, legal adviser to the Department of External Affairs. Ireland initially supported a resolution, proposed by the Belgian delegate, M. Rolin, that would replace all references to "woman" and presumably to "a wife" in articles 8-11 of the Hague Convention with the gender-neutral word "person." (44) In a speech to the first commission of the assembly on 10 October 1932, Hearne explained his stance: "I supported his proposal with energy until the last moment, and it will be recalled that when the standard fell from his hand [crossed out in my copy], I took it up and carried it forward until it was shot to pieces in my hands." (45) When Rolin's first resolution failed, he substituted a second, face-saving motion which was strong on aspirations but almost devoid of practical measures. This noted that articles 8-11 represented the greatest degree of progress that was then possible concerning the nationality of women; the articles in question would not prevent any member state from implementing the principle of equality of the sexes in matters of nationality. States that had not yet legislated to implement the Hague Convention had their attention drawn "to the possibility of enacting their internal legislative measures in a form more appropriate to meet the wishes of the women's organisations," and the secretary-general was instructed "from time to time" to ascertain whether member states were giving effect to recommendation VI of the Hague Convention--the recommendation in favor of equal treatment of men and women respecting nationality. (46) In his own speech Hearne tried to convince the feminist organizations that this second resolution was "a complete triumph for the feminist point of view and for the International Organisation of Women"; no alternative resolution, he insisted, had any hope of success in the assembly. (47)
Numerous feminists were impressed with the performance of the Irish government, and they were hopeful of making further advances. On 31 October 1932, Alice Paul, who represented the Inter-American Commission of Women at Geneva, wrote to John Hearne, thanking him for his excellent speech on the nationality of women at the recent assembly and informing him that she had arranged for copies to be distributed in the USA. She also thanked de Valera for his "exceedingly generous support during our campaign." (48) Florence G. McFarlane of the Six Points Group expressed gratitude to Hearne and de Valera on behalf of her organization; she specifically referred to the assistance that they had given in including in the draft Canadian resolution "several paragraphs which will be most helpful in future resolutions." (49) While these letters might perhaps be dismissed merely as examples of the social conventions dutifully observed by well-bred women of the time, the fact that Paul circulated Hearne's speech suggests that her sentiments went beyond common courtesies. In fact, de Valera and Hearne had already embarked on efforts to draft nationality legislation that reflected the principles of gender equality.
In January 1934 the Executive Council considered the heads of the Irish Nationality and Citizenship Bill, which belatedly honored the commitment given in article 3 of the 1922 constitution to introduce legislation to determine the conditions for acquiring or terminating Irish citizenship. The underlying principle behind the bill was to affirm a separate Irish Citizenship that was not simply a local or subordinate form of British citizenship, while guaranteeing separate but almost equal treatment for citizens of the Commonwealth and British subjects. Key sections of the bill were closely modeled on the British Nationality Act of 1914. The greatest divergence from the British legislation occurred in the clauses relating to marriage and nationality. These closely imitated the Rolin amendment that had failed to secure sufficient support at the 1932 assembly of the League of Nations; they were also consistent with the views expressed by the International Union of Catholic Women's Association regarding the unity of the family, (50) Like the relevant provisions of the 1930 Hague Convention, the clauses relating to marriage and nationality excluded the possibility of dual nationality. When an Irish citizen (male or female) married a non-national, the couple was free to choose between the nationality of the husband or that of the wife. If a foreign husband or wife of an Irish citizen opted for Irish citizenship, then he or she would automatically become a citizen. But the couple would be required to assume a common nationality, and if the individuals intended to reside permanently in the Irish Free State, they would have to become Irish nationals. If a couple failed to make a declaration of post-nuptial nationality, articles 8-11 of the 1930 Hague Convention would apply. If an Irishman married a foreign wife and intended to settle permanently in her country, he could retain his Irish citizenship until he became eligible for her citizenship. The bill also provided for the case of an Irish woman who had lost her nationality on marriage to a foreigner; she could now resume it on the death of her husband. (In practice, nobody who was a citizen under article 3 of the 1922 constitution could lose his or her Irish nationality, even if he or she wished to do so.) (51)
Before finalizing its legislation, the government consulted certain leading feminists. In March 1934 a confident John Hearne sent a draft of the sections relating to women to Alice Paul in Washington on de Valera's instructions. He informed her that he had already shown these sections to Betty Gram Swing, (52) and that she had considered them satisfactory on a preliminary reading. Hearne emphasized that the draft sections 10 and 11 eliminated all sex distinctions by referring indiscriminately to men and women. Anticipating a positive reaction, he added, "I think you will agree that we have met the wishes of the International Organisation of Women." Hearne expected that the bill would be introduced in April and asked for her immediate response "so that the president [de Valera] may have an opportunity of considering your observations." There is no evidence that Alice Paul responded. By May the parliamentary draftsman was expressing some concern about these clauses; he informed the attorney-general that officials "have reactions all through the bill." Stephen Roche, the secretary of the Department of Justice, reported that the view of his department "has always been that the nationality of the wife should follow that of the husband, and the adoption of this course obviates many difficulties. If, however, the minister for external affairs [de Valera] has definitely decided that liberty of choice should be given to the parties to a marriage as to their post-nuptial citizenship, the minister for justice will not press the objection." (53)
In practice, it proved impractical to sustain all the original principles in this legislation, particularly the principle that a married couple would share a common nationality. The radical proposal to treat men and women in identical fashion presented considerable difficulties in cases when an Irish man married a foreigner and elected to assume her nationality, because Japan and Brazil were the only nations that permitted a foreign male to assume his wife's nationality on marriage. (54) In all other instances an Irishman would presumably retain his Irish citizenship. But if his wife elected to become an Irish citizen and the family was permanently resident outside the state, she could do so only by naturalization and compliance with the residency qualifications. An Irish woman who married an alien and resided outside Ireland was required to make a declaration of intent to retain her Irish citizenship within one year of marriage. (55)
When the bill was being debated in Dail Eireann, John A. Costello, who had served as attorney-general in the Cumann na nGaedheal government, accused de Valera of "setting up national frontiers between husband and wife," adding that he thought that "there was something inconsistent in the idea of separate nationality of husband and wife with the conception of Christian marriage." De Valera countered that the idea that a family should have a common nationality was facilitated by the bill "so far as our own country is concerned, and as far as we could effect it outside, it is also made easy." He noted that the bill had attempted to avoid creating multiple nationalities, though this could not be entirely avoided. (56) It was presumably this unsympathetic attitude toward multiple nationalities-an attitude that appears to have been common in most countries during the 1920s and 1930s--which colored the treatment of nationality by descent. Under the 1935 act a person born before 6 December 1922 outside the state could claim Irish citizenship (under certain conditions) if one parent had been born in Ireland. But for those born outside the state after that date, citizenship could be transmitted only through the father. It was presumably a similar fear of multiple citizenship that explains the restrictions imposed on granting Irish citizenship to alien women who married Irish men, given that many countries no longer deprived a woman of her citizenship of birth on marriage to an alien.
De Valera returned to the question of multiple nationalities during the debate on the final stages of the bill, when he remarked that "the ideal would be that a person would have one nationality and one only." He would have preferred that nationality by descent be transmitted through the mother alone rather than through both parents. This is a revealing comment in view of de Valera's own parentage: born in New York City, the son of an Irish mother and a Cuban father. What also emerged in the debate is even more illuminating. Responding to opposition allegations that for a husband and wife not to have a common nationality was contrary to the Christian concept of the family, he contested the argument that this was "a fundamental factor in the unity of the family," although he acknowledged that a common nationality was preferable,
just as I think in general that it would be desirable that the husband and wife should be of the same race, traditions, and so on. I should say that if you examine the home and consider it fully, you will find that the marrying of two people of different races is more destructive of that ideal unity (by reason of the fact that the sentiments and traditions of the two people who form the family are different) than are the provisions contained in this bill. (57)
Ireland's efforts to resolve the question of the nationality of married women at the League of Nations appear to have received little recognition from Irish women's organizations. In x93z, nine women's groups from the Irish Free State--the Girls' Friendly Society, the Irish Co-operative Women's Guild, the Irish Federation of University Women, the Irish Nurses Union, Irish Women Citizens, the Irish Women Workers' Union, the National Council of Women, the United Irishwomen Society (forerunner of the Irish Countrywomen's Association), and the Women's National Health Association--signed a petition addressed to the 1932 Commonwealth conference at Ottawa, seeking equal treatment with respect to nationality, regardless of gender, (58) The decision to organize this petition can only be described as ill-advised, because although Cumann na nGaedheal and Fianna Fail disagreed on many fundamental issues, both political parties were adamant that the laws regarding nationality should be determined exclusively by Dail Eireann and not by the Commonwealth. To petition the Ottawa conference was tantamount to denying, or at least questioning, the legislative autonomy of the Irish Free State concerning citizenship.
There is no indication that Irish women's organizations acknowledged the efforts made in the 1935 Irish Nationality and Citizenship Act to legislate on a gender-neutral basis. Rather, they concentrated on the fact that under the act citizenship by descent would be transmitted only through the father. De Valera reassured the writer and historian Dorothy McArdle that children born abroad of an Irish mother and a foreign father could become Irish citizens if the mother applied for this privilege, even if the mother was never a citizen of the Irish Free State or had surrendered her citizenship. No residential or other qualifications would be required. (59) When consideration was given to drafting a revised nationality and citizenship bill in the early 1950S, the Department of Justice was determined that citizenship by descent should continue to be transmitted only through the father, but de Valera successfully intervened to insist that it be transmitted by either parent. (60) At the time Britain and other Commonwealth countries provided for citizenship by descent through the male line alone. (61)
The Irish treatment of the nationality of married women during the 1930s prompts two observations that may be relevant to the wider history of Irish feminism during that decade. The first concerns the way in which de Valera was viewed by Irish feminists. On 25 April 1934 the National Council of Women of Ireland contacted de Valera in the belief that the forthcoming session of the League of Nations would again address the question of equal citizenship and the Hague Convention. In their letter council leaders recalled "with great satisfaction your statement that you disapprove of sex discrimination and confidently rely upon you to take this opportunity of helping to abolish it." (62) These remarks suggest that they regarded de Valera as a champion of the women's cause. If this assessment is correct, much of the invective directed by Irish feminists at the 1937 constitution may have been prompted by a sense of having been betrayed by somebody who had been seen as an ally. Secondly, given the emphasis that Catholic social teaching and Irish politicians placed on the family, Irish feminists might have been well advised to adopt a similar discourse and to redefine a feminist agenda within a context of maternal and family needs, as did many feminists in Britain, the United States, and Europe. Yet it would appear that Irish feminism remained fixated on equal rights, (63) despite the fact that maternal feminism, or second-wave feminism, was more in accord with Catholic social teaching and with the underlying philosophy of Irish society, whereas an equal-rights agenda was seen as originating in an Anglo-Saxon, Protestant, and capitalist philosophy. The real indictment of article 41.2 of the 1937 constitution is not that it privileged women in the home, but that it failed to provide any demonstrable benefits to women in the home. Irish women's organizations neglected to take advantage of this clause by developing a discourse and a reform program centered on women's responsibilities in the home and in the family. Had they done so, we might know with greater certainty whether the sentiment expressed in article 41.2 was genuine or merely a rhetorical flourish that was of no practical significance.
(1) Maryann Gianella Valiulis, "Power, Gender, and Identity in the Irish Free State," Journal of Women's History 6:4 and 7:1 (Winter/Spring 1995), 118.
(2) Caitriona Clear, Women of the House: Women's Household Work in Ireland, 1922-1961 (Dublin, 2000), 5. It is important to be more precise about the term "domestic ideology" when applying it to Ireland before 1960. Many Irish women who were not in paid employment devoted most of their time to the family farm or a family business, not to the home. Rosemary Harris, writing about rural Ulster in the early 1950s, drew a distinction between traditional farm wives whose priority was the farm and the farmyard, and more modern women who saw themselves first as housewives. Henri Mendras made a similar distinction with regard to rural France in the 1960s. See Rosemary Harris, Prejudice and Tolerance in Ulster (Manchester, 1972), 32-42; Henri Mendras, The Vanishing Peasant: Innovation and Change in French Agriculture (Cambridge, Mass., 1970), 91-92.
(3) Clear, Women of the House, 7. Pinch beck believed that the industrial Revolution was extremely damaging to women and children; this is an issue on which historians are divided.
(4) For a comprehensive account of Irish citizenship legislation, including the 1935 Irish Nationality and Citizenship Act, see Mary E. Daly, "Irish Nationality and Citizenship since 1922," Irish Historical Studies 32:127 (May 2001), 377-407.
(5) Clive Parry, Nationality and Citizenship Lairs of the Commonwealth and of the Republic of Ireland (London, 1957), 71, claims that "it would be more correct to say that the common law never developed any particular rules as to the nationality of married women. In practice, a married woman was considered as having the nationality of her husband."
(6) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens, and Others: Nationality and Immigration Law (London, 1990), 84-90. The primary purpose behind the 1870 act was to abolish the concept of indelible allegiance by enabling British nationals who had emigrated and settled abroad, and become naturalized citizens, to surrender their British nationality. The Miens Act of 1844 was designed to make it easier for immigrants to become naturalized British subjects.
(7) J. Mervyn Jones, British Nationality Law (Oxford, 1956), 17.
(8) Dummett and Nicol, Subjects, Citizens, Aliens, and Others, 106-7.
(9) Hansard, 5th series, 18 Feb. 1925, col. 1211; Fasbender v. Attorney-General, Times Law Reports, 2 Dec. 1921, Vol. 38, 114.
(10) Nancy F. Cott, The Grounding of Modern Feminism (New Haven and London, 1987), 98-99. In 1930-31, following further lobbying by feminist groups, the law was revised to make a wife's citizenship entirely independent of her husband's (ibid., 295).
(11) Article 3 of the 1922 constitution declared that "every person without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstat Eireann) at the time of the coming into operation of this constitution, who was born in Ireland or either of whose parents was born in Ireland, or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State (Saorstat Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstat Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstat Eireann) enjoy the privileges and be subject to the obligations of such citizenship. For further details about the citizenship clause in the 1922 constitution, see Daly, "Irish Nationality and Citizenship," 377-84.
(12) Secretary of Department of External Affairs to Passport Officer, 6 Oct. 1924 (National Archives of Ireland [hereafter cited as NAI], Department of Foreign Affairs Files [hereafter cited as DFA], 1/20, Nationality of Married Women.
(13) Correspondence between P. Galway Foley, Acting Passport Officer at the Irish Free State Passport Control Office, New York City, and J.J. Walshe, Secretary of the Department of External Affairs, 25 Oct. 1927 (ibid., DFA 1/20).
(14) Nationality Bill (NAI, Department of the Taoiseach Files [hereafter cited as DT], $6501).
(15) On O'Higgins, see Valiulis, "Power, Gender, and Identity," 122-23.
(16) Randall Hansen, "The Politics of Citizenship in 1940s Britain: The British Nationality Act," Twentieth-Century British History 10:1 (1999), 67-95.
(17) The references to support this statement are too numerous to list here; I plan to deal with this topic in a forthcoming article.
(18) David Harkness, The Restless Dominion: The Irish Free State and the British Commonwealth of Nations 1921-3, (Dublin and London, 1969), 87-134.
(19) Speech of Kevin O'Higgins Regarding Committee on Nationality (NAI, DFA 1/20).
(20) Second Meeting of the Imperial Conference Committee on Nationality, 3 Nov. 1926 (ibid.).
(21) Home Office Memo, Imperial Conference of 1926, Nationality Committee (National Archives, Kew [hereafter cited as Kew], Cab. 32/53).
(22) South African objections stemmed from the potential conflict between proposed amendments and Dutch-Roman law. Under Dutch-Roman law a married woman was deemed to be a minor under the guardianship of her husband, and like a minor, she had in general no independent personal standing in law. See R.W. Lee, An Introduction to Roman. Dutch Law (5th ed., Oxford, 1953), 63.
(23) Irish Minutes Regarding Meetings of the Imperial Conference Committee on Nationality (NAI, DFA 1/20). It would appear that O'Higgins had his way. The published summary of proceedings of this committee conceals much more than it reveals. See iga61mperial Conference, H.C. 1927, Cmd. 2769, App. VII, Committee on Nationality.
(24) NAI, DFA 1/20, 27 Aug. 1932.
(25) For Irish aspects of this committee, see Harkness, Restless Dominion, 135-72. The published report of this committee (also called "conference" because of its size) makes no reference in the nationality of married women. Neither does the material regarding this conference in the MeGilligan Papers. See Conference on the Operation of Dominion Legislation and Merchant-Shipping Legislation, University College Dublin Archives, McGilligan Papers, P35b/103 ). See also Committee on the Operation of Dominion Legislation, 1929; Report of the Conference on the Operation of Dominion legislation and Merchant Shipping Legislation, H. C. 1929, Cmd.3479, xvi, 171.
(26) League of Nations, Nationality of Women Report by the Secretary-General, A 19 (27 July 1931), 2.
(27) Ibid., 9.
(28) Nationality Laws and Regulations in the Irish Free State, 1931-36, Memorandum by Legal Adviser (Hearne), 10 June 1932 (NAI, DFA 1/1).
(29) Memorandum Presented to Home Secretary, 13 Jan. 1930 (Kew, Home Office, 45/15147).
(30) League of Nations, Nationality of Women Report by the Secretary-General, A 19 (27 July 1931), 4-5.
(31) Statement by Women's Consultative Committee on Nationality with Regard to Hague Convention (ibid., Annex, 8).
(32) NAI, DFA 1/20.
(33) They included the International Council of Women, the International Alliance of Women for Suffrage and Equal Citizenship, the Women's International League for Peace and Freedom, the Inter-American Commission of Women, Equal Rights International, the World Union of Women for International Concord, the All-Asian Conference of Women, the International Federation of University Women, and the World's Young Women's Christian Association, though this last organization declined to become involved. See Nationality of Women Report by the Secretary-General, A 19 (1931), Section 5, 1.
(34) Statement by Women's Consultative Committee on Nationality with Regard to Hague Convention, Annex, 8 (see source cited in footnote 26).
(35) Memorandum Presented by the International Union of Catholic Women's Associations to Secretary-General of League of Nations, 10 Aug. 1931, in Nationality of Women, Document A 41 (1931), Section V. See also Report on League of Nations Assembly, 24 Oct. 1931 (NAI, DFA 1/20); Memorandum to Eamon de Valera by Mme. Malherbe, to June 1932 (NAI, DFA, 1/1).
(36) Catholic Citizen, April 193Z (copy in NAI, DFA 1/20). See also League of Nations, Thirteenth Ordinary Session of the Assembly, First Committee on Nationality of Women, Memorandum on the Nationality of Married Women, A 1/10 (3 Oct. 1932). The remainder of this memorandum reiterated the importance of a common nationality within the family.
(37) Petition on the Nationality of Married Women, Addressed to the Conference of the British and Dominion Governments of the British Commonwealth of Nations, Ottawa, Canada, July 1932 (dated April, May, June, and July 1932). For a copy of this document, see NAI, DFA 1/20. This petition, demanding that "throughout the British Commonwealth of Nations a woman--married or unmarried-shall have the same right as a man to enjoy independent nationality in her own person and the same right as a man to retain or to change her nationality," was signed by nine women's organizations in the Irish Free State: the Girls' Friendly Society, the Irish Co-operative Women's Guild, the Irish Federation of University Women, the Irish Nurses' Union, the Irish Women Citizens, the Irish Women Workers' Union, the National Council of Women, the United Irishwomen Society, and the Women's National Health Association.
(38) McGilligan Papers, UCD Archives.
(39) Dowson to Pedder (Kew, Home Office 45/15147).
(40) 1926 Imperial Conference, Fifth Meeting of Committee on Nationality, 12 Nov. 1926 (NAI, DFA 1/1). O'Higgins informed the meeting that in the opinion of the Irish attorney-general the British Nationality Act of 1914 was an imperial statute and did not apply in the Saorstat Eireann unless explicitly adopted there; he also declared that the parliament of Saorstat Eireann could legislate on any matter covered by imperial statutes.
(41) NAI, DT S5715, 17 Feb. 1930.
(42) Kew, Home Office 45/15147.
(44) League of Nations, Nationality of Women, Report by the First Committee to the Assembly, 10 Oct. 1932, A 61 (1932), Section V, 3.
(45) Text of John Hearne's Speech of 10 Oct. 1932 (NAI, DFA 1/20).
(46) League of Nations, A 61, 4-5.
(47) Text of John Hearne's Speech, 3 (NAI, DFA 1/20).
(48) Alice Paul to Hearne, 31 Oct. 1932 (ibid.).
(49) Florence McFarlane to Hearne and de Valera, 24 Oct. 1932 (ibid.). The Six Points Group was a British feminist body established in February 1921 by Lady Rhondda; it was strongly committed to equal rights. Its members included Vera Brittain and the writer Winifred Holtby.
(50) For the latter, see League of Nations, A 1/10, 3 Oct. 1932. (copy in NAI, DFA 1/20).
(51) Heads of Bill and Observations by Department of External Affairs on Points Raised by Executive Council, Jan. 1934 (NAI, DFA S6501).
(52) Betty Gram, an American feminist, was the wife of the journalist Raymond Gram Swing, one of the most influential commentators on Hitler's Germany during the 1930s. It is not clear when and how Hearne or de Valera may have made contact with her.
(53) NAI, DFA S6501
(54) Nationality Bill, 1934 (ibid., 1/56). (55) Nationality and Citizenship Bill: Explanatory Memorandum, 1953 (ibid., DT S15579A).
(56) Dail Eireann ..., Diosboireachtai Pairliminte (Parliamentary Debates) ..., Vol. 54 (28 Nov. 1934), cols. 398, 409 (hereafter cited as DEDP).
(57) DEDP, Vol. 54 (19 Dec. 1934), cols. 1623, 1627.
(58) Petition on the Nationality of Married Women (see source cited in footnote 37).
(59) Citizenship Bill, Suggestions, 1934 (NAI DFA 1/20). This was a very academic discussion because in the mid-1930s the parents of all children who might have sought Irish citizenship would have been born before 1922, and they would therefore have qualified for citizenship under article 3.
(60) Ibid., SI5579A. By the 1950s opposition to dual citizenship was waning.
(61) Parry, Nationality and Citizenship Laws, 99-102, Canada and Australia did permit citizenship by descent through the mother in cases where the child was born out of wedlock.
(62) Nationality of Married Women (NAI, DFA 1/20).
(63) Some groups did lobby for children's allowances to be paid to mothers--for example, the Irish Women's Citizens and Local Government Association. See Caitriona Beaumont, "Women and the Politics of Equality: The Irish Women's Movement, 1930-43," in Maryann Gialanella Valiulis and Mary O'Dowd, eds., Women and Irish History (Dublin, 1997), 176. But this question attracted little interest among women's organizations until the 1940s, and even then their impact on the debate was limited. See Clear, Women of the House, 46-76.
MARY E. DALY is executive chair of the Humanities Institute of Ireland at University College Dublin, which is funded by the Irish Higher Education Authority. She is also a professor in the School of History at University College Dublin, and is presently the secretary of the Royal Irish Academy. Her current research interests are concerned with independent Ireland. Her most recent book is The First Department: A History of the Department of Agriculture (2002). She is now working on a major study of the 1966 commemoration of the 1916 Rising in collaboration with Dr. Margaret O'Callaghan of Queen's University, Belfast.
|Printer friendly Cite/link Email Feedback|
|Author:||Daly, Mary E.|
|Publication:||Eire-Ireland: a Journal of Irish Studies|
|Date:||Sep 22, 2003|
|Previous Article:||Afterimage of the revolution: Kevin O'Higgins and the Irish revolution (1).|
|Next Article:||Guest editor's introduction.|