is, the driving of all our officers out of the service, and throwing not only our own army, but our military councils entirely into the hands of FOREIGNERS.

The officers, my dear sir, on whom you must depend for the defence of the cause, distinguished by length of service and military merit, will not submit much, if any longer to the unnatural promotion of men over them, who have nothing more than a little plausibility, unbounded pride and ambition, and a perseverance in the application to support their pretensions, not to be resisted but by uncommon firmness; men who, in the first instance, say they wish for nothing more than the honor of serving so glorious a cause as volunteers, the next day solicit rank without pay; the day following want money advanced to them; and in the course of a week, want further promotion. The expediency and policy of the measure remain to be considered, and whether it is consistent with justice or prudence to promote these military fortune-hunters at the hazard of our army.

Baron Steuben, I now find, is also wanting to quit his inspectorship for a command in the line. This will be productive of much discontent. In a word, although I think the Baron an excellent officer, I do most devoutly wish that we had not a single foreigner amongst us, except the Marquis de Lafayette, who acts upon very different principles from those which govern the rest. Adieu.

I am, most sincerely, yours,

GEORGE WASHINGTON.

See also the Maxims of Washington, a recent publication by Appleton & Co. At page 192, there will be found a letter, written in 1777 to Col. Spotswood, in relation to the establishment of his body-guard, concluding as follows:

"You will, therefore, send me none but natives, and men of some property, if you have them. I must insist that in making this choice you give no intimation of my prefcrence for natives, as I do not want to create any invidious distinction between them and the foreigners."

CHAPTER XV.

UNITED STATES NATURALIZATION LAW3.

THE Constitution of the United States provides that Congress shall have the power to establish a uniform rule of naturalization; and the weight of authority, as well as of reason, is, that no State can pass naturalization laws. It was held, however, in the Circuit Court of the United States at Philadelphia, in Collet v. Collet, reported in 2 Dallas, 294, that the State Governments still enjoy a concurrent authority with the United States upon the subject of naturalization, and that, though they could not contravene the rule established by Congress, or "exclude those citizens who had been made such by that rule, yet that they might adopt

citizens upon easier terms than those which Congress may deem it expedient to impose." But though this decision was made by two judges of the Supreme Court, with the concurrence of the district judge of Pennsylvania, "it is obvious," says Chancellor Kent in his Commentaries, vol. i. 423, "that this opinion was hastily and inconsiderately declared. If the construction given to the Constitution in this case was a true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the States individually of the power of naturalizing aliens according to their own will and pleasure, and thereby giving them the rights and privileges of citizens in every other State. If each State can naturalize upon one year's residence, when the act of Congress requires five, of what use is the act of Congress, and how does it become a uniform rule?"

Subsequent decisions have, in effect, overruled that in the case of Collet v. Collet. Judge Iredell, in the same Cirenit Court, in 1797, in the case of the United States v. Villalo, reported in 2 Dallas, 370, intimated that if the question had not previously occurred, he should be disposed to think, that the power of naturalization operated exclusively, as soon as it was exercised by Congress; and in the case of Golden v. Prince, reported in 3 Wash. Cir. Rep., 313, Judge Washington expressed the opinion that the power to naturalize was exclusively vested in Congress. Afterwards, in Chirac v. Chirac, reported in 2 Wheaton, 269, the Chief Justice of the United States observed, that the power of naturalization was vested exclusively in Congress. In Houston v. Moore, reported in 5 Wheaton, 49, Judge Story mentioned the power in Congress to establish a uniform rule of naturalization, as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the States. Chief Justice Taney, in the cases of Smith v. Turner and Norris v. Boston, held the following language on the subject:

It cannot be necessary to say anything upon the article of the Constitution which gives to Congress the power to establish a uniform rule of naturalization. The motive and object of this provision are too plain to be misunderstood. Under the Constitution of the United States, citizens of each State are entitled to the privileges and immunities of citizens in the several States, and no State would be willing that another State should determine for it what foreigner should become one of its citizens, and be entitled to hold lands and to vote at its elections. For without this provision, any one state could have given the right of citizenship in every other State; and as every citizen of a State is also a citizen of the United States, a single State, without this provision, might have given to any number of foreigners it pleased the right to all the privileges of citizenship in commerce, trade, and navigation, although they did not even reside among us.

The nature of our institutions under the Federal Government made it a matter of absolute necessity that this power should be confided to the government of the Union, where all the States were represented, and where all had a voice; a necessity so obvious,

that no statesman could have overlooked it. The article has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship. Its sole object was to prevent one State from forcing upon all the others, and upon the General Government, persons as citizens whom they were unwilling to admit as such.

But, says the editor of the last edition of Wheaton's International Law, (See Appendix, 627,) though the power of naturalization be nominally exclusive in the Federal Government, its operation, in the most important respects, has been made to depend on the action of the individual States, through their Constitutions and local laws. The right of suing in the United States courts, in controversies with citizens of other States, is one in which the naturalized citizens only participate with foreigners; while the provisions for common citizenship, intended to be secured throughout the Union, are jeoparded by the comprehensive operation given to the police regulations of the several States. The right of holding real estate is not easily connected with citizenship, and in France and other countries of Europe it is possessed by foreigners. without naturalization, a privilege which has, also, in the United States, been accorded by treaty stipulations to citizens of other countries. And in those States which by their general laws exclude aliens, special acts are habitually passed for the benefit of individuals, or the right is granted to all, on condition of their complying with certain formalities. The great distinctive characteristic of naturalization, of the droit de cité, the right of voting, of exercising the elective franchise on an equality with native citizens, and without the value of the privilege being diminished by its being shared with aliens, is practically controlled by the varying Constitutions and laws of the several States. The qualifications for voters, even in elections under its provisions, are not prescribed in the Constitution of the United States. Citizenship, however, at the time of the adoption of the Federal Constitution, was, under the State Constitutions then in force, universally a requisite, for the electors of the State Legislatures made the electors of the two houses in Congress; while the equality with native citizens of all citizens then naturalized was affirmed, in the provision in reference to the Presidency, by which citizens, at the adoption of the Constitution, were excepted from the exclusion applied, in the case of that office, to those that might thereafter be admitted. might then well have been inferred that, by making the qualifications of electors as to the term of residence, property, payment of taxes, &c., vary in the different States, for which, looking to diversity in the population of the several sections of the Union, there might have been very good reasons, neither the exclusive right of naturalization by Congress nor the full effect of the exercise of that power would be endangered.

It

By the Constitution of the United States, it is provided, that the electors for the House of Representatives, in each State, shall have the

qualifications requisite for electors of the most numerous branch of the State Legislatures, (Art: 1, § 2;) that the Senate shall be composed of two Senators from each State, chosen by the Legislature thereof-§ 3; and that each State shall appoint, in such manner as the Legislature thereof may dictate, a number of electors equal to the whole number of Senators and Representatives, to which the State may be entitled in the Congress. (Art. 2, § 1.) It hence follows, that if the individual States can disfranchise naturalized citizens, (and if they can superadd requirements from them not demanded by natives, it is obvious that they may exclude them altogether from voting,) or if they can admit to the elective franchise those who are not citizens, thereby neutralizing the votes of citizens, not only the Federal power over naturalization becomes a nullity, but a minority of actual citizens, by the aid of aliens, may control the govern- . ment of the States, and, through the States, the government of the Union.

By the Constitution of Rhode Island, (Art. 2, § 2,) a discrimination is made in the exercise of the elective franchise, between native and naturalized citizens, only the latter being required to have a freehold; while by the Constitution of Illinois, (Art. 2, § 27,) it is provided that "in all elections, all white male inhabitants above the age of twenty-one years, having resided in the State six months next preceding the election, shall enjoy the right of an elector." In some States, the free people of African descent, though they are excluded from the provisions of the naturalization law of Congress, nowhere enjoyed, in all respects, equal civil or political privileges with the whites, and have been, by several judicial decisions, declared not to be citizens within the meaning of the Constitution of the United States, are admitted to the elective franchise, either on equal terms with the whites, or, as in New York, on a freehold qualification, according to the rule imposed in Rhode Island, in reference to naturalized citizens. See interal opinion of Daggett, C. J., of Connecticut, 1833; Meig's Rep., vol. i., p. 333; State v. Clairbone; Mitchell v. Lamar, in the U. S. C. C. for Ohio; Opinions of AttorneysGeneral of U. S., vol. i., p. 382.

Congress has not confined the power of naturalizing aliens to the United States courts, but, in the several acts passed on the subject, has authorized State courts to do so; and it has been decided that, having prescribed a uniform rule of naturalization, it may give to the State courts jurisdiction under it. (5 Eng., 621.) In the case of Prigg v. The Commonwealth of Pennsylvania, it was, however, ruled by the majority of the United States Supreme Court, that it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect duties of the National Government, which are nowhere delegated or intrusted to them

by the Constitution; and that, on the contrary, the natural, if not the necessary conclusion is, that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments-legislative, executive, or judiciary, as the case may requireto carry into effect all the rights and duties imposed by the Constitution. (16 Peters, 541.) The remark of Mr. Madison, in the Federalist, No. 43, said Judge Story, in delivering the opinion of the court in the Prigg case, would seem in such cases to apply with peculiar force, which was, that "a right implies a remedy; and where else would the remedy be deposited, than where it is deposited by the Constitution ?" meaning, as the context shows, in the government of the United States.

It having been decided that the power of passing naturalization laws is vested exclusively in Congress, (2 Wheaton, 269, and 5 Wheaton, 49,) and as the Constitution does not authorize Congress to invest State courts with the power to naturalize, it would seem to be clear that Courts of the United States only ought to naturalize aliens, and that Congress exceeded the power conferred upon it by the Constitution, when it authorized State courts to perform the duties of naturalization. Chief Justice Gibson, in giving his opinion in the case of Moore v. Houston, spoke as follows on this point: "Under the revenue and post-office laws, jurisdiction is given to the State courts, to carry certain parts of those laws into execution. I will not say at present, whether, according to the Constitution, Congress can compel the State courts to exercise this borrowed jurisdiction. But until the State governments shall prohibit their courts from taking cognizance of questions arising under these laws, I can see no objection to their doing so." (3 S. & R., 194.) So in the Court of Common Pleas of Franklin county, Ohio, Judge Bates is reported to have given his opinion, that State courts are under no constitutional or legal obligation to perform acts of naturalization as prescribed by the laws of the United States; and this opinion appears to be in conformity with the decision in the Prigg case. Like that concerning fugitives from labor, the clause of the Constitution giving Congress power to enact uniform naturalization laws, imposes no duties whatever upon the States, nor authorizes Congress to impose any upon State courts on the subject.

The prevailing and better opinion, therefore, now appears to be, that State courts may refuse to regard the legislation of Congress upon this subject as mandatory upon them, and that it is within the constitutional power of State Legislatures to prohibit them altogether from exercising the duties imposed by the naturalization laws of Congress. This has already been done by the States of Maine, Rhode Island, and Connecticut, which have enacted a law prohibiting their courts from exercising the jurisdiction conferred by Congress to naturalize aliens. In these