Burton v. Burton

Brady, J.

In this case a question is presented, for the first time, which involves a construction of the second *476section of the act of Congress, passed on the 10th February, 1855, which is as follows :

“Any woman who might lawfully be naturalized under the 'existing laws, married, or who shall be married to a .citizen of the United States, shall be deemed and taken to be a citizen of the United States.” (10 Statutes at Large, p. 604, § 2; Brightley’s Digest, p. 132, § 2.)

The plaintiff was the wife of William E. Burton, now deceased. They were both born in the United Kingdom of Great Britain and Ireland. After their marriage, Mr. Burton came to this country and continued to be a resident thereof until his death. He. was duly naturalized in the year 1840. The plaintiff continued to be a resident of her native land until after the death of her husband, when she came to this country, and in this action, under and by virtue of the act of congress referred to, claims a right of dower in the lands of which he died seized. The difficulties which present themselves in this case arise from the ambiguity of the section which has been recited. What is meant by the words “ any woman who might lawfully be naturalized under the existing laws, married to a citizen of the United States ?” The rest of the section is free from obscurity. The language employed by the law givers would seem to extend the rights of citizenship to every woman married to a citizen of the United States, whether such marriage took place before or after the husband became a. citizen, and whether the wife was or was not a resident of this country, either at the time of the marriage or subsequently.

Did the congress of the United States, enacting this law, intend that it should have such an effect ? We must, as suggested by Chief Justice Taney, gather their intention from the language used, comparing it, where ambiguity exists, with the laws Upon the same subject, and looking, if necessary, to the public history of the times in which it was passed (Aldridge agt. Williams, 3 How. U. S. R. 24), *477and adopting that suggested as a guide, a conclusion may be drawn, which will remove the doubts and reveal the design of the act under consideration. The act itself was framed (see section first) in reference to the issue of citizens of this country born abroad.

Necessity for legislation on that subject undoubtedly provoked it. A very able review by Mr. Horace Binney of the acts of congress in force on that subject and of the various attempts to remedy the existing legal defects will be found in the second volume of the American Law Register (Phil.) p. 193, and I entertain the belief that the review mentioned contributed much to the enactment of the law. It will not be necessary for the determination of the question involved in this case, however, to consider in detail the whole scope of legislation upón the subject of citizenship of children born abroad whose parents were or whose father was a citizen of the United States, but to refer to it as incidental to the question on hand, the two subjects embraced in the act of 1855 being kindred to and growing out of each other. It will be sufficient, therefore, in relation to the subject embraced in the first section of the act of 1855 to say that under the then existing laws the child of a citizen of the United States born abroad was an alien, and that even under the act of congress passed in 1802 (Brightley’s Digest, p. 35) the child of an alien mother born abroad was an alien although the father was in fact a citizen. Some attempts were made in congress to remedy this, and bills were introduced for that purpose. One reported by Mr. Wall in 1841, another introduced by Mr. Webster in 1848, and still another by Mr. Bradbury in 1852.

None of these bills were passed, however—they were unlike in phraseology or dissimilar in scope. The bill reported by Mr. Wall contained no express provision in reference to women. The bill of Mr. Webster provided that the children of citizens of the United States born out of *478the limits of the United States should be considered as citizens of the United States, and also by the second section, “that every woman married, or who.should be married to a citizen of the United States, and should continue to reside therein, should be deemed and taken to be a citizen of the United States.” The bill introduced by Mr. Bradbury was precisely the same as Mr. Webster’s ; but the judiciary committee recommended that the second section should be stricken out. (Review of Mr. Binney, supra; see, also, Congressional Globe, and Appendix, Second Session, Twenty-sixth, Congress, pp. 181—212; Congressional Globe, First Session, Thirtieth Congress, p. 834—Mr. Webster’s'remarks, and p. 844, his bill; Congressional Globe, Part Second, Twenty-fourth volume, First Session, Thirty-second Congress, pp. 991-1352.) 'It will thus be seen that legislation in congress, so far as it extended to alien wives prior to the year 1855, contemplated a continued residence by them in this country, which was the effect of the provision in Mr. Webster’s bill, and, as we have seen, the judiciary committee, at a subsequent period recommended that even the grant of that privilege should be discountenanced. The conditional qualification of continued residence by the wife may have been regarded as objectionable, because it was not imposed upon the husband, and his civil condition might continue, while hers would change.

But whether that was so or not, no substitute was suggested for that section by the committee. The assault upon it was sweeping. The act of 1855, therefore, as we glean from this previous legislation, though unfinished, the history of the legislative object to be attained by it, and as well the general considerations which influenced nations in framing naturalization laws, was designed, certainly, for the benefit of an alien white woman, whether resident or not, married to a person who was at the time of the marriage a citizen of the United States, thus securing, by the same law, the rights of citizenship to the children of *479American citizens born abroad, and to such alien wife all legal rights of citizenship, which otherwise, and by reason of her alienism, she might not possess. (See opinion of Judge Ingraham in case of Greer agt. Sankston, decided in the supreme court, first district, adopting a like construction upon similar phraseology in a kindred case.*)

This was, in my judgment, the primary object of the act if it be not the full scope of its intent. It was a legislative measure passed in reference to citizens of the United States, and bearing upon such marital relations with alien women as they might establish. Construed with liberality, however, it might be held, also, to extend to an alien woman resident in this country, though married abroad to an alien, and who came to this country with him or followed him here, and in that way, or in one of these ways, identified herself with the country of his adoption. Such - a construction would produce an effect analogous to that of the statute which confers citizenship upon the alien minor children, dwelling in the United States, of a person who becomes a citizen. (Act, Brightley’s Digest, p. 35, § 3.)

In this case, the plaintiff has neither sought to derive the benefit of her husband’s naturalization by coming with or following him here, nor entitled herself to the benefit of a liberal construction in her favor of the act, as suggested, by a residence in this country of any duration prior to her husband’s death. Her rights, therefore, as a citizen, depend entirely upon the construction of the section of the statute under consideration, and I am of the opinion that she has no claim upon her husband’s estate thereunder. He was not, when he married her, a citizen of the United States, and she was never a resident thereof during his life. On the contrary, she was and continued to be both alien and stranger.

*480The plaintiff being an alien, and having married an alien, and not having resided in this country prior to her husband’s death, has no dower right in the lands of which her husband died seized, under the provisions of the act of the legislature, passed in 1845, (Session Laws 1845, p. 94.)

The precise point has been decided in the case of Greer agt. Sankston, supra. For these reasons, I think the defendants entitled to judgment upon the demurrer.

Ordered accordingly.

Reported ante, p. 471.