OPINION ON TWO QUESTIONS OF ALIENISM.

The question of alienism is one of great interest in the United States by reason of the flood of immigration and the doubts which have existed in regard to the true construction of the naturalization laws passed by Congress. The doctrine laid down in the following opinion in the case of Zule was afterwards held by Chancellor Walworth in the case of West v. West, which was decided in 1840.1

STATE OF NEW YORK,

ADJUTANT-GENERAL'S OFFICE.}

January 14, 1833.

SIR: I received, some time ago, your letter of the 25th October, submitting two cases for my decision, with a view to an amicable disposition of them. I now proceed to comply with your request; and as there appears to have been some disagreement between the court and the counsel employed by the delinquents on trial, I shall state, in detail, for their information as well as yours, the grounds on which my opinion rests.

1. In the year 1803, James Titcomb arrived in this State from England, aged five or six years, and, some time during the spring of 1882, purchased a lot of land in the town of Mayfield, in the county of Montgomery, for which he took a common warranty deed.

The question submitted is, whether Titcomb is exempt from military duty on account of alienism?

Although it is not expressly stated, I take it for granted that he has not only not been naturalized, but that he has never taken any of the incipient steps specified in sec. 15, art. 2, title 1, chap. 1, part 2, Revised Statutes. If he has purchased lands without taking such steps, it is at his own

18 Paige's Reports, 433.

peril, and he cannot hold them against the State, after an inquest of office found. But his liability to military duty depends upon other considerations: to incur such a liability he must either have been naturalized, or at all events he must have complied with the provisions of the article above referred to.

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There is a principle connected with this question, which from its importance deserves to be stated and briefly examined. There was a provision in the militia law of 1823,1 directing the captain of each company of infantry to enroll "every able bodied alien, who shall at any time have been seized of any real estate within this State, and the sons of every such alien," &c.; but this provision is repealed by the Revised Statutes. It is, however, provided, by the 20th section of art. 2, title 1, chap. 1, part 2, Rev. Sts., that every alien holding any real estate by virtue of any of the provisions of that article, shall be subject to duties, assessments, taxes and burthens, as if he were a citizen of this State." It would appear that Chancellor Kent2 considers this liability as extending to the performance of military duty. It is true, he not only refers to it in such a manner as to convey the impression that it depends upon a distinct provision of law, but from the employment of the same terms it would almost appear that he considered the provision of the militia act of 1823 still in force. For instance, he says: "In New York, resident aliens are liable to be enrolled in the militia, provided they are lawfully seized of any real estate within the State, and they are in that case declared to be subject to duties, assessments, taxes and burthens as if they were citizens." If he considered the liability to military duty, referred to in the first part of this sentence, as depending upon the words which he quotes from the statute in the latter part, (and this is most probable, as he makes but a single reference to the statute,) there is, to say the least, great want of precision

VOL. II.

1 Laws of New York, Sess. 46, ch. 144, sec. 8.

2 Kent's Commentaries, 2d ed. Vol. II. p. 64.

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in the manner of stating it. It is also a little remarkable that it did not occur to him to inquire, whether this provision is consistent with the Constitution and laws of the United States, a question which may fairly be raised; for if it be not so, the liability which he considers it as creating, cannot have a lawful existence.

The Constitution of the United States (art. 1, sec. 8, part 15) gives to Congress the power "to provide for organizing, arming and disciplining the militia," &c.; and in pursuance of this grant of authority, the act of Congress of May 8, 1792, provides that "every able bodied, free, white, male citizen" shall be enrolled, &c. Under the provisions of this act, the militia of this State must be organized; and any provisions in our laws inconsistent with them would be null and void, as Congress has exclusive jurisdiction over the subject-matter regulated. It seems proper that the power of providing for the organization of the militia should reside where the Constitution has placed it — with the general government. The latter is charged with the public defence; and it is but reasonable that it should possess the power of designating the nature and extent of the enrolment, for these are necessarily regulated by the public exigencies. The act of Congress referred to intends that none but "free, white, male citizens" shall be enrolled; and it is worthy of reflection, whether the designation of a particular class of persons from which the enrolment is to be made by the authority having exclusive jurisdiction in the case, does not render illegal the enrolment of any other class. An express prohibition can hardly be necessary; for, if under the laws of this State aliens may be enrolled, because the act of Congress prescribing the organization of the militia contains no express prohibition as to them, females and blacks may also be enrolled for the same reason, or even slaves in a slaveholding State. But in any of these cases, it seems to me that the militia would not constitute such a force as was contemplated by the act of Congress.

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I am, therefore, inclined to the opinion, that an alien, although holding real estate and coming within the provisions of art. 2, title 1, chap. 1, part 2, Rev. Sts., might, before a court-martial, maintain his claim to exemption, by setting up the provisions of the act of Congress of 8th May, 1792; and, consequently, that the provisions of section 20 of the article of the Revised Statutes last referred to, if that section is to be construed to extend to the performance of military duty, are inconsistent with the Constitution and laws of the United States. But admitting that the provisions of that section are of binding force, still they do not reach the case in point; they subject to the "duties, assessments, taxes and burthens" of citizens such aliens only as hold real estate by virtue of the provisions of the article of which that section is a part, one of which provisions is, that a deposition, duly certified, shall be filed in the office of the Secretary of State; and with these it does not appear that Titcomb has complied.

I am, therefore, of the opinion that he is not liable to military duty; and that a fine, imposed on him for disregarding a warning to attend a company or regimental training, would be unlawfully imposed.

2. A Mr. Zule arrived in this country from Scotland a number of years ago, and soon after his arrival was naturalized according to our laws on that subject, and now possesses property. His son came over with him at the same time, being three or four years old. He has now passed the age of eighteen years, and refuses to train because he is an alien.

The question submitted is, whether the naturalization of the father, in this case, carries with it the naturalization of the child, so that the latter is to be considered as a citizen of the United States?

This is a question of some difficulty. The only existing law under which he can be claimed as a citizen, is the act of Congress of 14th April, 1802; and to comprehend

more clearly the intention of this act, it may not be improper to glance at the laws previously passed on the same subject.

The act of Congress of March 26, 1790,1 provided, "That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common-law court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens," &c.

The foregoing provision was the earliest adopted after the government had gone into operation under the Constitution of the United States; and it shows manifestly the intention of Congress to have been to confer the right of citizenship on the minor children of persons naturalized in pursuance of the rule therein contained, provided they were dwelling in the United States at the time of the naturalization of their parents. Under this provision, the political condition of the child, while laboring under the disability of nonage, was to follow the condition of the parent. With regard to the minor children of aliens, the qualification of residence 1 Laws U. S. Vol. II. p. 82. Bioren's edition.