United States ex rel. Nicola v. Williams

HAND, District Judge. Under several state authorities the marriage of a woman in a foreign jurisdiction to a citizen of this country is within section 1994, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1268). Halsey v. Beer, 52 Hun, 366, 5 N. Y. Supp. 334; Headman v. Rose, 63 Ga. 458; Kane v. McCarthy, 63 N. C. 299; Burton v. Burton, *40 N. Y. 359. This body of authority should, I think, be conclusive upon ine, in spite of the fact it is not strictly binding, even if it did not satisfy me in principle. However, I am satisfied oil principle that both these women are citizens. Assuming that no sovereign can change the allegiance of the subject of another, while the subject is not within the territorial jurisdiction of the first, in these cases the native sovereign of each woman has relinquished her allegiance. Under the law of the Ottoman Empire, of which the relator in the first case was a subject, the relator’s marriage with a citizen of this country changes her allegiance. This is clearly implied from the Turkish Nationality Eaw of January 26, 1869 (article 7): “La femme Ottomane qui a fponsG uu (Granger pent, si ello devient veuve, recouvrer sa qualité de snjeüe Ottomane, en faisant la declaration dans Ies trols anndes qui suivrout le deeds de son mari. Cette disposition n’est: toutefois applicable qu’S. sa persoime: ses propridtCs sent soumise»s aux lois et reulements généraux qui les régissent.” This received construction in the Circular Addressed to the Governors General of the Vilayets of the Empire, March 26, 1869, in which is the following: “Comme la femme Ottomane qui épouse un dtranger eesse d’etre sujetie Ottomane, 1’Article 7 lui aecordo la faeulld de recouvrer, si elle devient veuve, sa nationalité originaire, en le declarant a l’lUitoritG Ottomane dans les trois ans qui suivrout la mort. de sou mari.” Martens, Xouvou Recueil General de Traites, Denxiemc serie, Tome XIX, pp, (¡5.3, (¡59. It is urged that our own act does not cover the case, hut that only she may be naturalized who might at the time be admitted as an alien, 'flic words are “who may herself be lawfully naturalized.” T cannot change the words to “admitted and naturalized.” Certainly they refer to the classes as defined by the naturalization law. If an alien woman is once admitted, and then marries, would-it be an answer to her claim of citizenship that she had trachoma when she married? If not, then it cannot he the case when she acquires the same right while out of the country. Besides, there is no pretense that she had trachoma when she was married, and at that time she could have been admitted. That is the point of time that counts, and at that time each sovereign consented to the transfer of allegiance. It cannot be that our consent was dependent upon her physical presence here. As to jurisdiction, I think that in spite of United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, the rule governs of Gonzales v. Williams, 192 U. S. 1, 24 Sup. Ct. 171, 48 L. Ed. 317. It is true that in that case the court alludes to the change in the statute; but the words of the act of 1894 were in substance precisely like those [628] of the act of 1903. Where allegiance depends wholly upon a question of law, the court must review that question and decide upon it. Therefore let an order go releasing the relator from custody. In regard to the Gendering Casé, I need add but. little. The law of Holland is the same as the law of Turkey in regard to the acquisition by a woman of a new allegiance through marriage. “Law relating to Netherlands Citizenship,” 1893, art. 7: “Netherlands citizenship shall he forfeited, by * * * (2) Marriage in the case of a woman.” From “Law of Naturalization,” Prentiss Webster, 1895, p. 260. The only remaining question is whether the fact that the woman had left her husband and was living with a paramour changed this result.- The adultery of the spouse in no sense terminates- the marriage relation, which endures until it is dissolved by a competent tribunal. It is not material whether the woman acquired a new domicile or not. Even change of domicile of the spouses did not affect the relation. In this case the allegiance of the husband determines' that of the wife by consent of both sovereigns. If the wife’s infidelity in this case changed the relation, so must it in the case of any other infidelity. Certainly nothing is added by the fact that she has openly lived with her paramour and with him left the country. She remains sub dominio mariti, however she may disregard her obligations. Therefore let an order also go in the Gendering Case releasing the relator from custody.