Year: 1878

to regulate, and, under the uniform rule
established by Congress, naturalization is an
exercise of judicial power. In Great Britain
executive act. A few of the State courts of
the United States have debated whether. If
naturalization be an exercise OF judicial
power, Congress could or can vest any por-
tion in State courts, since that instrument
declares that ''the judicial power" of the
United States shall be vested in federal
courts. The question was incidentally con-
sidered by the Supreme Court of the United
States more than thirty years ago in the
famous case Of Prigg, wherein the
old Fugitive Slave law of 1898 was
declared to be constitutional. One in
quiry there was upon whom Congress
had placed the duty of arresting and
delivering up the fleeing bondman. and
the Court said-Upon the federal govern
ment. The next inquiry was whether the
States were individually under any obliga-
tion to actively participate. and the Court
answered:-"It might well be deemed an
unconstitutional exercise of the power of in
depreciation to insist that the States are
bound to provide means to carry into effect
the duties of the national government no.
where delegated or intrusted to them by
the constitution" What is here said of re-
turning fugitives applies to naturalization
But later in the opinion the Court adds
"As to the authority SO conferred upon
State magistrates, while a difference of
opinion has existed, and may exist
still, on the point in different States
whether State magistrates are bound to
act under it, none is entertained by
this Court that State magistrates may, if
they choose. exercise that authority, unless
prohibited by State legislation The State
of New York has certainly not forbidden its
courts of record to naturalize Aliens nor
has it specially impaired the authority, but
in 1874 the State did regulate and prescribe
the fees which the ''clerks of tho courts of
this State which have jurisdiction in cases of
naturalization shall be entitled to demand"
and in 1869, after the Tweed naturalizations,
the State made provision to punish crimi-
nally any judge or clerk who had to do
with wilfully fraudulent naturalization.





judgment of standardization, properly entered
by New York court, will ever be set aside
for want ofjurisdiction. And yet it is possible
that our State and city judges can lawfully
do what the federal judges cannot do,
which is to refuse to hear naturalization
applications. But if our city judges do
volunteer and undertake to act as agents Of
xba co+;orol covarn -, arA IN tb;c ;,prort.rt
business they should proceed with judicial
dignity and deliberation; and if the clerks
Of the city courts are authorized by the
State to tax an alien for due preparation
of the record and issuing certificates
thereof those clerks ought to prepare and
certify to a record which, in Europe or else
where, will not be discredit to the admin
istration of justice in America


Much criticism has been in this country
made of certain treaties with German
States and with Austria, the negotiation of
which Secretary Seward in 1868 authorized.
But the fact is that the loose naturalization
practices of our city and State courts i'm
PEELED G ermany and Austria to insist that
foreign States should be permitted to in
quire and Judge for themselves whether the
applicant had Eve quote the words of the
Baden Treaty. resided uninterruptedly
within the United States Of America five
years." That was what those treaties did,
and our law requires five years residence.
If our judges had thoroughly and conscien-
tiously tried the issue of residence" as
they try other issues there would have been
no occasion or demand for thetreaties. Our
Minister at Berlin reported to Secretary
Evarts in June, 1877:-'During the past
year, for instance, fifty applications have
been made here for passports for natural
lied citizens. On investigation it turned
out that in six of the cases the naturaliza-
ton had been obtained by fraud" Is it to
be supposed that when Germany or any
other State requires the military service
of . man actually living in the land of his
birth with his family and never intimating
to his neighbors that he can pretend to be
an American citizen she will forbear her
claim when the man produces q certificate
of naturalization purporting to be from one
of our courts but which is proved to be
fraudulent? Our judges have it in their
power to put stop to these naturalization
scandals at home and abroad.


Secretary Fish repeatedly asked Congress
to adopt such legislation as would put
stop to the constant and often trouble
some disputes in which the federal govern
ment is involved with foreign States on the
question of naturalized citizens. It is ono
of the most peremptory duties of the gov
eminent to protect its citizens against
wrongs inflicted by foreign Powers; but
among the multitude of claims for proiec-
tion and redress coming from every part of
the world, and especially from such coun-
tries as Cuba and Mexico, it is the rule rather
than the exception to discover, on examina-