Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-12-24
Important Decision by the Supreme Court.
STATE OF WISCONSIN,
SUPREME COTRI

STATE OF WISCONSIN,
SUPREME COURT.
In the matter of the application for writ of habsas
c0rpsS for Martin Conway and James Gibbons
Opinion by Justice Paine.
The laws of Congress and of this State, use
the word g citizen" as designating those who
are liable to be enrolled in the militia. In
the recent case of Carl Wehlitz, we held that
this word in the acts of Congress, was not de-
signed TO include only those who were full
citizens of the United States, but also those
of foreign birth who had declared their inten-
tons TO become such, and who had become
citizens of this State according to our consti-
tuition and laws. The question now presented
IS whether the children of such persons who
came to this country with their parents while
minors, but who have since attained full age
and have voted in this State, are liable to g
enrolled and drafted? And this must depend
upon the question whether such children can
be considered citizens" within the meaning
OF the laws Of Congress.
That they cannot be regarded as citizens of
the United States, under those laws, in the
full sense of the term, must be conceded. By
the Sd section of the act of Congress, as pub
ished in Brightley's Digest, p. SIS, the minor
children of such aliens as become fully natur-
allied are to become citizens by virtue of such
naturalization Of their fatherS. And section
10 provides how an alien who has resided in
this country three years next preceding his
arrival at the age OF twenty-one, may become
citizen The fathers of the persons for
whom this application is made, never having
been naturallzed, but only having declared
their intentions, and these persons never hay-
ing themselves taken the steps prescribed bv
section ten, they cannot be regarded as full
citizens of the United States under the laws
of Congress.
If then they are to be included at all it
must be because they are citizens Of this
State, within the rule adopted in the Web
lltz case. But we are unable to see how they
can be so regarded. In respect to their faith
ers our constitution and laws are clear. The
right OF citizenship of this State, was conferred
on them, so far as it is possible for state to
confer a citizenship of itself, on an alien,
without his being fully naturalized under the
laws of Congress. And it is true that if those
who framed our constitution and laws had fol-
lowed the analogy suggested by the acts of
Congress on this question, they would have
provided that the minor children of such per-
sons, should on coming of age, be entitled to
like rights of citizenship in this state, as their
fathers. But they made no such provision.
And whether it was a casus onDissass or de-
signed, courts can only take the law as they
ind it.
Does the fact that they have voted here,
make them citizens Of this State ? Certainly
not. Our laws gave them no right to vote,
and if they have voted, they voted Illegally,
and are liable to punishment. But such lille
gal voting surely cannot alter their political
status, or enlarge their rights,
1t may be entirely competent and expedi-
ent for Congress to enact that any alien who
votes in any state shall be liable to military
duty and be estopped by his own act from de-
nying his citizenship. But they have not
done so, and the only question, rs the law
now is, is whether the party is citizen or
not.
When this point was under discussion, ref
ercnce was made to the opinions of the Sec
rotary Of State, and of the Secretary of War,
in which they held that those who had voted
were liable to the draft. But we understand that
they were speaking only of such as had de-
clared their intentions, and then voted. In
such cases the act Of vOtingis significant and
material. For it may perhaps be said that no
state can impose the rights or duties of cit-
zenship upon aliens who do not choose to
have them. But in all cases where the State
confers the right of State citizenship on aliens
who have declared their intentions to become
citizens Of the United States, the act of vot-
ing is conclusive proof of an acceptance of
such State citizenship by them. Therefore
they would be included in the laws of Con-
gress, which designed to reach such State
citizens, as well as full citizens of the United
States.
But when the State confcrs no citizenship,
no right to vote, the act of voting as the law
now is, must be immaterial 1t would be a
mere illegal act, not significant of any accep-
lance of citizenship by him, because none
was offered him to accept.
We think, therefore, that these parties
were not liable to be drafted, as the law now
is, and that they must be discharged