laws of Congress; that when the Constitution (art. 1, sec. 8) says that Congress shall have power "to establish an uniforin rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States," it designed these rules, when established, to be the only rules by which a citizen or subject of a foreign government could become a citizen or subject of one of the States of this Union and thereby owe allegiance to such State and to the United States, and cease to owe it to his former government.

In The City of Minneapolis v. Reum [(1893), 56 Fed., 576, 580], Sanborn, circuit judge, said:

Congress has exercised this power, established the rule, and expressly declared that foreign-born residents may be naturalized by a compliance with it, and not otherwise. This power, like the power to regulate commerce among the States, was carved out of the general sovereign power held by the States when this Union was formed and granted by the Constitution to the Congress of the United States. It thus vested exclusively in Congress, and no power remained in the States to change or vary the rule of naturalization Congress established, or to authorize any foreign subject to denationalize himself and become a citizen of the United States without compliance with the conditions Congress had prescribed.

And in the recent case of the United States . Wong Kim Ark, supra, Mr. Chief Justice Fuller declared that

The power granted to Congress by the Constitution, "to establish an uniform rule of naturalization," was long ago adjudged by this court to be vested exclusively in Congress.

It would appear, therefore, that the matter might now be considered settled in the Federal courts. But the State courts have almost uniformly adopted the same view, some of them, indeed, very early.

In 1818 the constitutional court of South Carolina held that "the power of passing laws on the subject of naturalization exclusively

a The isolated case of Ex parte Knowles [(1855), 5 Cal., 300] must, it would seem, be regarded as an anomaly. The court there held, contrary to the number of express rulings on the point (see section on State and Federal citizenship), that "to conceive a citizen of the United States who is not a citizen of some one of the States is totally foreign to the idea and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions. The object, then, to be attained by the exercise of the power of naturalization was to make citizens of the respective States.

"At the time of the adoption of the Constitution the States had power to make citizens of aliens. Does the clause of the Constitution above quoted deprive them of it?

66

The true rule of construction as to the exclusiveness of the power of Congress is (1) that it must be granted exclusively; (2) forbidden to the States; (3) from the nature of the power its exercise by both must be incompatible and incongruous. Does the power now referred to come within either of these positions? If we examine the language closely, and according to the rules of rigid construction always applicable to delegated powers, we find that the power to naturalize, in fact, is not given to Congress, but simply the power to establish an uniform rule. The States are not forbidden to naturalize, nor is there anything in the exercise of the power by them incongruous or incompatible with the power of Congress to establish an uniform rule. That the States, if they choose to exercise the power as an original one, must abide by the rule which Congress makes, there can not be the slightest difference of opinion. The power given to Congress was, according to my apprehension, intended to provide a rule for the action of the States, and not a rule for the action of the Federal Government."

pertains to the General Government." [Davis v. Hall (1818), 1 Nott & McCord, 292.] "

α

One of the clearest statements to be found in the State reports is given in the opinion of Assistant Vice-Chancellor Sandford in Lynch . Clarke, supra. He says:

But in reference to all foreign nations we stand as one single and united people, the United States of America. The right of citizenship, a right which is not only important as between the different States, but has an essential bearing in our intercourse with other nations, and the privileges conceded by them to our citizens is therefore not a matter of mere State concern. It is necessarily a national right and character. It appertains to us not in respect to the State of New York, but in respect of the United States.

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The provisions of the Constitution of the United States demonstrate that the right of citizenship, as distinguished from alienage, is a national right or condition, and does not pertain to the individual States. And while the Constitution recognizes the particular citizenship which I have mentioned (Cooper's Lessee v. Galbraith, 3 Wash. C. C. R., 546), it is evident that the subject of alienage must be controlled by the general and not by the local allegiance. The Constitution declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. (Art. IV, sec. 2.) The effect of this clause, in the first instance, was to bring within the fold of citzenship of the United States, and thus of each and every State, all who at the time of the adoption of the Constitution were by birth, adoption, or any of their discordant laws of naturalization, citizens of any one of the thirteen States. (See 3 Story's Com. on the Constitution, 674, 5, sec. 1800.) It made all alike citizens of the newly organized nation, and in this respect a homogeneous people. And the very necessity for such a provision to bring all upon a common platform exhibited in the strongest light the absolute need of guarding against different and discordant rules for establishing the rights of citizenship in future. We therefore find that one of the first powers conferred upon Congress was “to establish an uniform rule of naturalization throughout the United States." (Art. I, sec. 8, par. 4.)

A few brief considerations, out of many which force themselves upon the mind, will illustrate the position that the right of citizenship in its enlarged sense, was, after the adoption of the Constitution, not only a national right, but from the nature of the case it must from thenceforth be governed by the law of the whole nation and the acts of the National Legislature. The different colonies, while pursuing the same general policy, had manifested very diverse views in their legislation upon the subject of aliens. The same thing was apparent in the legislation of the respective States after the Declaration of Independence and during the Confederation. As early as the year 1782 Mr. Madison strenuously urged the adoption of a uniform rule of naturalization by the States. (Letter to Edmund Randolph, 1 Madison Papers, 161.) If the States were to be left to themselves, the same diversity would doubtless continue under the Constitution. One State would foster immigration, and confer on foreigners all the rights of citizens on their landing upon its shores, while another, with the same general object in view, but cherishing the ancient jealousy of aliens, would require a probation of many years before conferring those privileges upon the emigrant. Then under the clause of the Constitution which I have first cited interminable and harassing conflicts of State jurisdiction would have speedily ensued. These considerations are forcibly illustrated by Mr. Madison and Mr. Hamilton in the Federalist, Nos. 42 and 32. (And see 2 Madison Papers, 712; 3 Story's Com. on the Const., 3, secs. 1098, 1099.)

The clause in the Constitution conferring upon Congress the power to establish an uniform rule of naturalization was designed to obviate the various evils which were justly anticipated from leaving the subject of citizenship to the control of the several States. Has it had the intended effect? It certainly has not,

a See also State v. Manuel (1838), 4 Dev. & Bat., 20, 25; Rouche v. Williamson (1842), 3 Ired. L., 141, 145 (in which it was held that the acts of Congress on the subject of naturalization superseded the North Carolina statutes on the same subject); Lynch v. Clarke (1844), 1 Sandf. Ch., 583, 640; Stephens Petitioner (1855), 4 Gray, 559; In re Ramsden (1857), 13 How. Pr., 429, 431; In re Wehlitz (1863), 16 Wis., 443, 447.

if there be any portion of the field of legislation on the subject left open to the action of the several States.

The

I will next inquire whether there be any such portion left to the States. The Constitution went into full operation on the 4th day of March, 1789. first Congress assembled under it, at its second session, exercised the power conferred upon that body by the Constitution, and on the 26th day of March, 1790, passed an act to establish a uniform system of naturalization. And from that time to the present there has been one or more acts of Congress regulating this subject constantly in force. After Congress exercised this power, it is well settled that it no longer fell within the scope of State legislation.

In Collet v. Collet (2 Dallas, 294), decided in 1792, in the United States circuit court in Pennsylvania, the judges held that the States still had a concurrent power of naturalizing, provided they did not contravene the legislation of Congress. But Judge Iredell expresed a contrary opinion in the same court as early as 1797, in the United States v. Villato (2 Dallas, 370). And in Chirac v. Chirac (2 Wheat., 259) the Supreme Court of the United States held that the power was exclusively in Congress.

The authors of the Federalist, in the numbers before cited, insisted that the power to naturalize must necessarily be exclusive, else there could be no uniform rule. And it seems now to be conceded on all hands that it is exclusive.

In Stephens, petitioner, supra, Shaw, C. J., briefly expressed the same view as follows:

We suppose it to be a position uncontested that by the Constitution of the United States power is vested exclusively in the General Government to grant letters of naturalization to foreigners, and that a similar power, formerly exercised by the respective State governments, has been superseded (Chirac v. Chirac, 2 Wheat., 269). If the State government, its courts, or magistrates have any authority on the subject, it must be derived from the General Government.

To the same effect is the opinion of Hoffman, J., in In re Ramsden: In the next place, it appears to me that the power conferred is a power over the whole subject-the power exclusively to constitute citizens-not merely a power to prescribe how the State shall do so. To establish a rule of naturalization is to declare how aliens shall become citizens. It involves the whole power of effecting the object, as well as all details of its exercise. When, then, the people of the United States have said that Congress shall have that power and Congress exercises it, the right to accomplish it in any other mode or by any other body is superseded.

And Paine, J., in In re Wehlitz, supra, remarked that—

The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive and has always been held by this court to be so.

THEORIES ON WHICH THIS EXCLUSIVE POWER IS BASED.

The theory underlying the doctrine that the power to naturalize is exclusively in the Federal Government has been variously stated. Doubtless the earliest theory propounded was that of Hamilton in the Federalist, No. 32, quoted, supra, to the effect that—

This must necessarily be exclusive, because if each State had power to prescribe a distinct rule there could not be a uniform rule.

In Collett. Collett, supra, the court announced that

the true reason for investing Congress with the power of naturalization has been assigned at the bar. It was to guard against too narrow, instead of too liberal, a mode of conferring the rights of citizenship. Thus the individual States can not exclude those citizens who have been adopted by the United States, but they can adopt citizens upon easier terms than those which Congress may deem it expedient to impose.

In a dissenting opinion in Houston . Moore (1820), 5 Wheat., 1, 48, Mr. Justice Story made a statement of the principle in the following terms:

The Constitution containing a grant of powers, in many instances, similar to those already existing in the State governments, and some of these being of vital importance also to State authority and State legislation, it is not to be admitted that a mere grant of such powers in aflirmative terms to Congress does per se transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly in terms given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts. arsenals, dock-yards, etc.; of the second class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish an uniform rule of naturalization (Chirac v. Chirac, 2 Wheat., 258, 269). and the delegation of admiralty and maritime jurisdiction (Martin v. Hunter, 1 Wheat., 304, 337). And see the Federalist, No. 32.

(See also the question, supra, from the Passenger cases, Mr. Justice Woodbury's opinion.)

In the License cases [(1847), 5 How., 504, 584] Chief Justice Taney made the following comments:

And in the case of Chirac v. Chirac, 2 Wheat., 269. which arose under the grant of power to establish a uniform rule of naturalization, where the court speak of the power of Congress as exclusive, they are evidently merely sanctioning the argument of counsel stated in the preceding sentence, which placed the invalidity of the naturalization under the law of Maryland, not solely upon the grant of power in the Constitution, but insisted that the Maryland law was "virtually repealed by the Constitution of the United States, and the act of naturalization enacted by Congress." Undoubtedly it was so repealed, and the opposing counsel in the case did not dispute it. For the law of the United States covered every part of the Union, and there could not, therefore, by possibility be a State law which did not come in conflict with it. And, indeed, in this case it might well have been doubted whether the grant in the Con stitution itself did not abrogate the power of the States, inasmuch as the Constitution also provided that the citizens of each State should be entitled to all the privileges and immunities of citizens in the several States; and it would seem to be hardly consistent with this provision to allow any one State, after the adoption of the Constitution, to exercise a power which, if operated at all, must operate beyond the territory of the State, and compel other States to acknowledge as citizens those whom it might not be willing to receive.

In Golden". Prince [(1814), 3 Wash. C. C., 313, 324]. Washington, J., stated his reasons for regarding the power to naturalize as exclusively in the General Government, as follows:

The subject of naturalization is strongly illustrative of the principles which this course of reasoning is intended to prove. The power to pass laws upon this subject is found in the same section, and is expressed in words of the same import, with that respecting bankruptcies. Now, suppose Congress, deliberating whether the naturalization of foreigners ought, upon any, or upon what terms, to be allowed-that the deliberations of that body should result in the conviction that the natural population of the country is most conducive to the public interest, and therefore that no encouragement ought to be given to the migration of foreigners to the United States. In what manner is this policy to be rendered effectual? Congress can not, for the purpose of preventing the State legislatures from interfering in this business, pass a negative law, declaring that foreigners shall not be naturalized; because if the Constitution forbids the exercise of such a power by the State legislatures, such a law would be worse than unnecessary;

and if it does not forbid it, then it would be void. Nothing, then, would remain for that body but, as in the former case, to do nothing.

This, then, according to the argument on the part of the defendant, would be the signal to the State legislatures to commence their operations. Virginia, for example, is of opinion that, for the purpose of settling her extensive waste and uncultivated lands, the migration of foreigners to that State ought to be encouraged by every means; and in order to favor this policy she declares that the residence of a year or a month, without any other restriction whatever, shall be sufficient to entitle all foreigners to the right of naturalization in that State. They are accordingly made citizens, and, after the constitutional period, are chosen to represent the people of that State in the national legislature, and, emigrating to the other States, with the Constitution in their hands, they claim all the privileges of natural-born citizens of those States.

The other States might well complain that, although the people had declared their willingness to admit foreigners to the privileges of natural-born citizens, provided the regulations under which this admission is granted were formed by the united wisdom of the representatives of all the States, yet they had never granted or intended to grant to one State the right of legislation over the other States. They might contend that the introduction of foreigners to the electoral franchise, and still more into the national legislature, was an experiment dangerous to the tranquillity and the welfare of the nation; that they might be tainted with principles unfriendly to our republican institutions, and with foreign attachments wholly incompatible with their duties as citizens and legislators; that if admitted at all, they should not only abjure all allegiance to any foreign government, and, if of the order of nobility, should renounce all claim to the same; but that they ought to be men of good moral character, and attached to the Constitution of the United States, and, finally, that the grant of this privilege should be preceded by a probationary residence in the United States for a length of time sufficient to afford the necessary proof of the reality of these qualifications in the applicant.

These quotations will be sufficient to indicate the range taken by the courts in their discussions. An obvious and simple reason for it may be thus put: If there is to be a citizenship of the United States the United States should determine upon what terms it may be acquired.

SECTION 2.-Courts that may naturalize.

The earliest as well as the later statutes passed by Congress on the subject of naturalization contain more or less specifications as to the courts that might naturalize aliens. The act of 1790 provided that the proceedings might be taken before any common-law court of record." The act of 1795, which repealed the act of 1790, provided that the proceedings be "before the supreme, superior, district, or circuit court of some one of the States or of the Territories northwest or south of the river Ohio or a circuit or district court of the United States." This act was in turn repealed by the act of 1802, which, after specifying the United States courts which might naturalize aliens, provided

that every court of record in any individual State having common-law jurisdiction and a seal and clerk or prothonotary shall be considered as a district court within the meaning of this act.

It is under this latter act that nearly all the litigation involving its subject-matter has arisen.

A. Composition of courts.-One of the first questions that arose under the statute of 1802 was as to the meaning of the provision regarding clerks. The earliest case found in which is discussed the necessity of a clerk for a naturalizing court is that of Ex parte Cregg [(1854), 2 Curtis, 98, 99], where it appeared that the petitioner had applied for naturalization to the police court of the city of Lynn,