1854. Argument against the jurisdiction.

is viewed by the statutes of the United States, we OCT. SESSIONS, shall find that he is in no place considered as remaining a foreign subject, but that he is vested with certain rights which are entirely inconsistent with such an idea. The act of 26th March, 1804, § 11, says: "When any alien who shall have complied with the first condition specified in the first section of the said original act" (that is, who has declared his intention, &c.)," and who shall have pursued the directions prescribed in the second section of the said act, may die before he is actually naturalized, the widow and children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law."

Such a right as that given by the statute would scarcely have been given to the wife and children of a person owing allegiance to a foreign government: and it seems from this that it was thought that he ceased to be a foreign subject from the moment of making his declaration. This shows, too, that it is merely to prevent his voting that he is not naturalized at once, and that it was thought that from the time. he makes the declaration he ceases to be a subject of the foreign government, and begins to become an American citizen, clothed with all the civil rights of the citizen, but from his inexperience not yet intrusted with the political rights. The expression "actually naturalized," is significant. It admits a naturalization short of actual or complete naturalization, a naturalization in law, or a naturalization for many purposes.

So, also, the patent act of July 4th, 1836, § 12, provides, "that any citizen of the United States, or alien who shall have been a resident of the United

OCT. SESSIONS, States one year next preceding, and who shall have

1854.

Argument against the jurisdiction.

made oath of his intention to become a citizen thereof,
and who shall have invented any new art, &c., and
shall desire further time to mature the same, may, on
payment of the sum of $20, file in the patent office a
caveat, setting forth the design," &c. Here there is
a right given equally to aliens who have declared their
intention, &c., and to citizens of the United States,
from which right all other aliens are excluded. This
seems to favor the view we have taken; but the 9th
section of the act is still stronger. It is as follows:
"That before any application for a patent shall be
considered by the commissioner, the applicant shall
pay into the treasury of the United States, or into any
of the deposit banks to the credit of the treasury, if he
be a citizen of the United States, or an alien, and
shall have been resident in the United States for one
year next preceding, and shall have made oath of his
intention to become a citizen thereof, the sum of $30;
if a subject of the King of Great Britain, the sum of
$500, and all other persons the sum of $300.

This act speaks of three classes of persons, viz.: Citizens and aliens who have been a year resident within the United States, and have declared their intention of becoming citizens thereof. 2d. All other aliens, except subjects of the King of Great Britain. 3d. Subjects of the King of Great Britain.

Now Byrne must belong to one of these classes, and to one only. And being one of the And being one of the persons described in the first class, no one will say that the act considers him as belonging to the third class also. If he be not of the third class, then has the plaintiff failed to prove the facts alleged in the record, and to repel the presumption of the want of jurisdiction.

C

1854.

Mr. Ingraham, on the other side, contended that OCT. SESSIONS, the declaration of an intention to renounce, &c., was Argument in not a renunciation. It was, indeed, a thing of the support of the least possible significance. The party might perfectly

well change his intention.
given to him designedly;
he knew his own mind.
to carry out his intention involved no penalty from
our government; nor would the existence of the dec-
laration itself infer any penalty from his own. An
intention to renounce at the end of five years is con-
sistent with a continuing allegiance during the five
years. Nay, it is inconsistent with any renunciation
before the expiration of five years. Even the party
himself, therefore, did not renounce his allegiance.
If he had, it would be a nullity. He can make no
renunciation not acknowledged by the law, and the
law will not allow him to renounce it before the end of
five years. The country could not accept it. If, then,
the party does not renounce his old allegiance, and
the country does not accept any new allegiance, in
what way does his old allegiance cease? There is a
fundamental error on the other side in supposing that
a declaration of an intention to renounce is identical
with an actual renunciation. The declared intention
may not exist. A real intention may change, as we
have said. This very case proves the truth of our
argument. Byrne declared his intention to become a
citizen of the United States, but abandoned the
country soon after, and is a soldier in the army of the
Emperor of Russia, without the least intention of ever
coming back here.

This locus penitentia was
that he might see whether
The omission of the party

The case of Koszta was not a precedent. It was a political, not a judicial case. The fact that Koszta

jurisdiction.

1854.

jurisdiction.

OCT. SESSIONS, was on a neutral territory, Turkey, with an American Argument in passport, was enough to justify our government in support of the saying to Austria, who had arrested him by main force, against the complaint of Turkey, "You have treated our 'protection' with indignity;" and in justifying in the eyes of the world, at least, a gallant officer of our navy who, with patriotic motives, had compelled a surrender of the man to the government with whose sign of protection he was invested.

THE COURT'S
OPINION.

The acts of Congress which have given some privileges to persons declaring intention are of no significance, either as facts or arguments. Congress may favor such persons, as it has in special cases favored aliens who had made no declaration at all. An act by Congress can't amount to an act by an individual no way connected with Congress: nor can acts of Congress, having nothing to do with the naturalizing of aliens, cause the transfer of allegiance from one sovereign to another. The very sections of both the acts relied on speak of persons who have done no more than "declare intention" as "aliens." They favor our view more than they do that of the other side.

GRIER, J., admitted that the question, as a judicial one, was new, and of some difficulty; but it being, as he stated, his opinion that a man could not throw off his natural allegiance except in assuming some new citizenship, he refused to dismiss the case in a summary way, for want of jurisdiction. And there being no disputed facts in the case, he directed a verdict for the plaintiff, giving leave, however, to the defendant to move to set it aside if he desired. The motion was made; but Byrne having actually abandoned this

country soon after the suit was brought, and there OCT. SESSIONS, not being any likelihood whatever of his return, the case was not heard of further (A)

(A) The conclusion thus adopted by the court in this case is sustained by the view subsequently taken by the Court of Appeals in Kentucky, in White v. White, A. D. 1859, 2 Metcalfe's Equity, 189, where it was decided that an alien who had taken the preparatory oath to become a citizen of the United States, is not thereby rendered capable to take lands by descent; and that his subsequent naturalization does not operate to invest him with the title which in the meantime has vested in the commonwealth. It was supported, also, in the view taken by the Federal government at an interesting crisis of American history; as appears by the following letter of the secretary of State to the then British chargé at Washington:

DEPARTMENT OF STATE,
WASHINGTON, July 20, 1861.

SIR: Having informally understood from you that British subjects who had merely declared their intention to become citizens of the United States, had expressed apprehensions that they might be drafted into the militia under the late requisition of the War Department, I have the honor to acquaint you, for their information, that none but citizens are liable for duty in this country, and that this Department has never regarded an alien, who may have merely declared his intention to become a citizen, as entitled to a passport, and consequently have always withheld from persons of that character any such certificate. I have the honor to be, with high consideration, Your obedient servant,

WM. H. SEWARD.

1854. THE COURT'S OPINION.

To the HON. WM. STEWART, etc.