PANEL: Citizenship and Marriage in the Nineteenth-Century United States
Friday, October 23, 8:45-10:15

Chair: Christine L. Compston, Independent Scholar

Citizenship and Property Rights: Nineteenth Century Alien Land Law and the Case for an "Efficiency Principle"
Polly J. Price, Emory Law School

This paper will examine common law and statutory exclusions of aliens from land-holding in the antebellum west, to explore whether an "efficiency principle" for land distribution modifies the received view of the development of citizenship laws in the 19^th century United States. English common law had long excluded aliens from the capacity to inherit or hold real property in fee simple. Although courts in the early United States dispensed with the legal category of "subject" in favor of an often ill-defined division between "aliens" and "citizens," they retained the common law prohibition against aliens purchasing or inheriting real property. Lawsuits alleging invalid title to land on the basis of alienage were frequent in the early nineteenth century. The resulting court decisions often represent the only evidence that a state followed the common-law rule of territorial birthright citizenship prior to the 14th Amendment.

As the American frontier expanded in the antebellum period, common-law exclusions for aliens were frequently modified by statue, particularly in the west beginning with the territory created by the Louisiana purchase. Alien land restrictions were eased by recognition of preemptive settlement rights and shortened prescriptive periods for possession-based titling. While movement away from per se restrictions against alien land ownership is characteristic of all regions in the United States throughout the antebellum period, different factors affected legal developments in the west. This paper will suggest that differences between east and west grew largely from the more urgently expressed need for predictable and efficient land transactions in western territories and states. I will argue that this "efficiency principle" contributes to our understanding of the dichotomy in the legal significance of citizenship in the 19th century. Land productivity accounted for a loosening of restrictive notions of citizenship in the west, but it did not significantly affect rights of political participation. One expression of this dichotomy was that women and other groups traditionally excluded from political rights were sometimes considered "citizens," or at least "non-aliens," for purposes of holding and conveying title to land.

This project derives primarily from court decisions, statutes, legislative debate, and commentary in treatises and periodicals of the antebellum period. This is a two-part paper that proposes, first, to consider alien land restrictions systematically over the course of the antebellum period. Second, in light of the regional differences uncovered by this survey, this paper proposes a modification to prior interpretations of the development of the common-law rule of birthright citizenship. Specifically, the suggestion that an "efficiency principle" accounts for change over time in alien land restrictions challenges some elements of the prior work of James Kettner (The Development of American Citizenship, 1608-1870 [1978]) and Peter Shuck and Rogers Smith (Citizenship Without Consent: Illegal Aliens in the American Polity [1985]) by showing that citizenship for landholding and for political rights operated quite independently in 19th century legal thought, with important implications for determining citizenship at birth prior to the 14th Amendment.

"Re-Covering" the Married Woman in Frontier Washington, 1877-1893
Sandra F. Van Burkleo, Department of History, Wayne State University

In the 1880's, immediately before Washington's 1891 admission as a state, judges, legislators, and reformers in Washington Territory found themselves embroiled in a bitter struggle over the merits of economic and political equality for men and women. Suffragists closely watched developments in Washington; Susan B. Anthony, for example, called one of the Territorial Supreme Court's decisions against women's political freedom a "travesty." But, with few exceptions, historians have been given short shrift to this interesting battle. to some extent, neglect has to do with a general failure to explore legal developments in emergent western societies. With notable exceptions legal historians (and especially constitutional historians) tend to ignore the territories; only with statehood do new societies capture limited scholarly attention, because developments can be fit into a national narrative, and, more positively, because scholars have come to see that "American history" cannot by synonymous with the history of the original thirteen states. When studies do emerge, however, and again with few exceptions, they typically emphasize either legal administration (the establishment and operation of courts), the evolution of doctrine in areas related to economic development (e.g., water rights, the law of real and/or community property, mineral rights, the "Americanization" of old civil law jurisdictions), or the transplantation of the rule of law and Anglo-American legal culture from east to west (e.g., Dykstra, Reid, Bakken). To their credit, historians of women note Washington's experiment in universal suffrage, but usually as a backdrop for the post-statehood struggle (waged successfully by Abigail Scott Duniway and others) to secure woman suffrage by 1910, and without sensitivity to the tug-of-war between civil and common law rules of practice.

As the Civil War ended, Washington territorial law seemed to hold great promise for women. The 1853 organic act specified male suffrage. But, in 1869, territorial legislators disavowed both dower and curtesy. Between 1879 and 1883, they began to weave a fabric of civilian-based property, contract, and family law that very nearly secured women's economic equality, and unequivocally established universal suffrage for all citizens. In 1879, for instance, lawmakers passed a statute (reminiscent of Texan rules of practice) formalizing a community property system. By its terms, spouses retained all property owned before marriage as well as assets accumulated during marriage. Both could manage separate property; other property became part of a co-owned and co-managed marital trust; and either spouse could demand court assignment of a trustee if the other mismanaged the estate. Assemblymen also passed what came to be called the 'civil rights act' to "protect the rights of married women." Among other stunning provisions, it "abolished" laws that "impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband...," although without granting "the right to vote or hold office (to) the wife, except as is otherwise provided by law." For any "unjust usurpation of her natural or property rights," lawmakers added, "she shall have the same right to appeal... to the courts of law or equity for redress and protection that the husband has." Finally, the assembly established equal custody rights and duties, and absolute maternal control of children in cases of husbandly death or divorce. Finally, in 1883, legislators (wielding powers granted in the organic act) passed the first of several laws eradicating gender from election laws. Now, "all American citizens" could "hold office, or vote at any election"; officials were instructed as well to include women on jury lists.

In rulings as early as 1877, the territorial Supreme Court (headed by 1883-84 by the reform-minded Chief Justice Roger Green) seemed to be supporting these measures, many of which had been enshrined in the Territorial Code of 1881. But, as women began to sit on grand and petit juries in large numbers, and as the Cleveland administration began to appoint judges opposed to "ultraisms" (including both reformism and "foreign" law), open warfare broke out between a newly-constituted Court, legislators, and reformers. By 1889, in the wake of an uncommonly explicit series of opinions about the constitutionality (and cultural expediency) of local election and property laws, the Court began to reconstruct (or "re-cover") married women, systematically comparing civilian-based statues with "traditional" common law rules and, having found them wanting on several grounds, invalidated the better part of the system. By 1891, an all-male constitutional convention and electorate had written and approved a state constitution without woman suffrage. Almost at once, the state supreme court managed to supplant what little remained of the old civil law regime with common law rules (or, in some cases, managed again to interpret old statutes in light of "tradition," narrowing and gutting old law). At the same time, state legislators began to construct a new system of protective legislation (e.g., factory laws) which dispensed with the idea of co-sovereignty and political individualism, remaking woman as a class into wards of political and domestic governments.

Events in Washington Territory thus provide a worm's eye view into a number of historical processes of paramount importance for women on the eve of federalization of the suffrage. In Washington, for example, policy-makers explicitly considered relationships between economic and political freedom: did the former lead irresistibly to the latter? Or not? Women and men inhabited half-formed law regimes influenced by civilian rules which, at least for a time, afforded relatively "free" legal-cultural spaces for women's self-emancipation and experiences of self-rule. In Washington courts and legislative chambers, moreover, magistrates talked at length about the constitutional importance of the supposedly indivisible household sovereign for women's claims of co-equality. The course of events also permit an unusually fine-grained analysis of the power of civil law and common law rules in constructing (and reconstructing) the woman citizen (or ward).

Developments in Washington suggest as well that ancillary political rights (notably but not only jury service) and the related question of woman's ability to sit in judgment directly and immediately (that is, promiscuously) over men were at least as important as ballots per se for anti-suffragists. At issue, Washingtonians made clear, was female co-sovereignty (that is, woman's authority to exercise law-making and governing powers alongside men within both domestic and political governments as equal members of the sovereign power), and especially married women's right to sit in judgment over men in courts of law -- not merely as electors, but as jurors. Washingtonians put an end to female experiences of political freedom less because of balloting itself than because of women's exercise of ancillary political rights and the prospect of feminized legal judgment. Jury service brought women into masculine spaces regularly and personally (as periodic, unsexed electoral "voices" did not do), with dire consequences for masculine governance.

Finally, the course of events vividly illustrates the ways in which judges' professional self-construction critically limited women's prospects. Only Roger Green was prepared to remove himself as an intermediary between women and the state so that freedom might be realized; other judges positioned their courts as custodians of women's freedom, so that, by the 1890's, conceptual groundwork had been laid for the emergence of what Peter Bardaglio recalls "state patriarchy." Judges freely articulated concerns about their own disempowerment with a regime shaped by civilian rules that effectively divided and redistributed men's supposedly indivisible sovereign authority within domestic governments. Still relations between women and government were more complex than Bardaglio's and Mike Grossberg's important scholarship might suggest, if only because of complicated shifts in responsibility and power between the branches, and because a number of influential magistrates were fully prepared to pull out of the business of governing women, and lost.

These developments presently form a short (12-page) section in my nearly-completed book, "Belonging to the World": Women's Rights and American Constitutional Culture (under contract, Oxford University Press). The section relies in the main upon official records of the territorial and state supreme courts, the territorial session laws and 1881 code, and the multi-volume History of Woman Suffrage. In summer of 1998, I will visit repositories in Oregon and Washington, which, archivists tell me, house manuscript legislative journals. Little-utilized file papers apparently survive as well for at least a dozen key decisions of late territorial and early state courts, including the relatively well-known Rosencrantz v. Washington (1884) and Harland v. Territory of Washington (1887), but also less familiar rulings that were important to contemporaries but which have disappeared from view. Among these are Mary Phelps' Case (1877), Holyoke v. Jackson (1882), Hamilton v. Hirsch and Hayden (1884), White v. Washington (1888), and a notorious case feigned to allow judicial demolition of suffrage and civil rights acts, Nevada Bloomer v. Todd (1888). I also hope to examine newspapers (including relevant women's prints in the northwest) and some of the papers of principals (e.g., Green and Duniway) by end of summer, 1998; certainly I'll do that before the paper becomes an article or short book.

Federal Definition and Regulation of Marriage in Late 19th Century America
Megan J. McClintock, University of Washington
Julie Shapiro, Seattle University School of Law

The definition and regulation of marriage has traditionally been left to the States. Indeed, many would assert that it is beyond the power of the federal government to define or regulate marriage and that to attempt to do so would be an unconstitutional usurpation of state prerogatives. Yet in expanding the Civil War pension system in 1862, the federal government employed its own definition of marriage. Rather then deferring to state law, the federal authorities devised an expansive national definition of marriage, embracing the private practice of nuptials and facilitating the award of pension benefits to women who could not establish legal marriage under the laws of their home states.

In 1882 the federal government retreated from its acceptance of informal nuptials as well as from its reliance on an independent definition of marriage. A law approved in that year stated that, in pension claims, marriage be proven according to the law of the state in which marriage had taken place.

This federal recognition of the authority of the states to define marriage coincided with the late nineteenth-century marriage reform movement. United by their concerns that the private practice of marriage and alternatives to formal, monogamous unions posed a threat to society and the nation, disparate groups waged a campaign against lax marriage and divorce laws in the years after the Civil War.

The role of the federal government in defining and regulating marriage, independent of the states, is an unexamined aspect of this period. This paper will examine the development, application, and eventual abandonment of a federal definition of marriage, relying on pension files and decisions by the Bureau of Pensions as well as on case law, legislative debates, and contemporary discussions of federalism. In addition, this paper will place the federal retreat from defining marriage and accepting informal marriage within a larger context. Through pension policy, the federal government participated in the debates and controversies over forms of marriage and state-federal relations in the late nineteenth century.

Comment: Peggy Pascoe, Department of History, University of Oregon