Pеtition for writ of habeas corpus to prevent the deportation of a Portuguese woman, who was prevented from entering the United States by the immigration authorities at Providence, who ordered her to be sent back to Portugal. There was an appeal to the Secretary of Labor, who affirmed the order.
It is elementary law that the decision of the immigration officials
The present petition involves the legаl meaning of the word “wife,” as used in section 3 of the Act of Congress of February 5, 1917, as amended by the Act of June 5, 1920, c. 243 (U. S. Comp. St. Ann. Supp. 1923, § 4289¼b), which provides, among other things, that an illiterate alien woman ovеr 16 years of age shall not be allowed to land, unless she is the wife, mother, grandmother, or daughter of an alien lawfully seeking admission to the United States, or already established here.
Sabina Suzanna could neither read nor write. She contended that she was entitled to admission .as the wife of Manual Gomes, a resident of Philadelphia. She was excluded solely on the ground that she was not Gоmes’ wife, as there was no contention that the number of Portuguese citizens already admitted had exceeded the number allowed by the so-called “quota” law. There was np evidence that the marriage was fraudulently contracted in order to evade the immigration law.
The facts in this case, which raise a novel and interesting question of law, are as follows: Manuel Gomes wаs domiciled in Philadelphia. He contracted a marrage with Sabina Suzanna by proxy. The law of Portugal allows such proxy marriages (Ringrose Marriage and Divorce Laws, p. 117 et seq.), and the required forms were properly carried out. The woman came to this country, and was prevented from landing by the immigration authorities, on the ground that she was illiterate. They refused to allow her to land as being Gomes’ wife, taking the position that the proxy marriage was invalid under the-laws of the United States.
The validity of a proxy marriage has never been determined, so far as I am aware, in any case in England or the United States. It arose' in two cases, In re Lum Lin Ying (D. C.)
Washington Irving’s description of this occurrence (Life of Columbus, vol. III, p. 228) omits all specific reference to the marriage by proxy, but his account is not inconsistent with that of the Spanish author.
Some confusion in the authorities has arisen from the use of the word “marriage” in two different senses. In one sense it designates
“Thrift, thrift, Horatio! the funeral-baked meats Did coldly furnish forth the marriage tables.”
—(Hamlet, act I, scene 2)
an instance of the first meaning. In one of the sonnets this verse occurs :
“Let me not to the marriage of true minds Admit impediments; love is not love Which alters when it alteration finds,”
—(Sonnet 116)
an instance of the second meaning. Byron uses the word in the first sense in a familiar quotation:
“Soft eyes looked love to eyes which spake again, And all went merry as a marriage bell.”
—(Childe Harold, canto 3, stanza 21).
The law of marriage as a status depends upon that of the domicile of the parties, according to the decisions of many English and American courts. See a very able opinion by Rugg, C. J., in Kapigian v. Minassian,
A marriage, though.the most sacred of' all contracts, is yet a contract. Great Northern Ry. v. Johnson,
Most laws require that both parties shall appear before a magistrate or a priest and give their consent. But this requirement of an offiсial sanction is not always absolutely essential, as it has been held in many states that a marriage, though consummated without any ceremonial whatever, is valid. 18 R. C. L. 391; Koegel, Common-Law Marriage; Patterson v. Gaines,
• But is therе any reason of public policy why the contract itself should require any different formalities than any other contract? Does the mere'presence of the parties at the time оf the making of the contract add any essential element to the agreement between them ? Royal marriages celebrated by proxy have long been considered true marriages. Queen Mary of England married Philip the Second of Spain before Bishop Gardiner, the Spanish monarch being represented at the ceremony by Count Egmont (Froude, History of England, vol. 6, p. 189), and there аre records of other such marriages (Tiffany, Domestic Relations [3d Ed.] p. 54). We have already noticed the marriage by proxy of Balboa, and the custom is said to have been common during the Middle Ages in Europe. 32 Harv. R. Rev. 477. If royalty could do it, why may not those of more common clay be allowed to follow their example? There is a very instructive decision in the Eighth Circuit to the effeсt that marriage, like any other contract, may be effected by correspondence. Great Northern Railway Co. v. Johnson,
It is an interesting fact, also, that toward the end of the war with Germany the Judge Advocate General gave his opinion that a marriage bj^ letter was probably valid. 32 Harv. L. Rev. 488. Schouler erroneously states that it was the Adjutant General who gave this opinion. Seе 2 Schouler. Marriage, Divorce, Separation and Domestic Relations (6th Ed.) § 1212.
The question, as has been said, has never been judicially determined. There are dicta and opinions of text-writers to the contrary. Comm. v. Farmers’, etc., Co.,
The question must be decided in this case on the law of Pennsylvania, as Gomes was domiciled there. Great Northern Railway Co. v. Johnson,
There is nothing in the law of Pennsylvania which I have been able to discover requiring the personal presence of the parties at the ceremony, and I agree with the learned opinion of Professor Lorenzen that the proxy marriage celebrated in Portugal is valid in Pennsylvania. The result is that Sabina Suzanna was the wife of Manuel Gomes, and that she had the legal right to enter the United States.
Let the writ issue.