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ON THE

CONSTITUTION OF THE UNITED STATES;

WITH

A PRELIMINARY REVIEW

OF

THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES,

BEFORE THE ADOPTION OF THE CONSTITUTION.

BY JOSEPH STORY, LL. D.,

DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY.

IN THREE VOLUMES.

“ Magistratibus igitur opus est; sine quorum prudentia ac diligentia ogge civitas non potest ;
quorumque descriptione omnis Reipublicæ moderatio continetur.”

CICERO DE LEG. lib. 3. cap. 2.
« Government is a contrivance of human wisdom provide for human wants."

BURKE.

VOLUME III.

BOSTON:

HILLIARD, GRAY, AND COMPANY.

CAMBRIDGE:

BROWN, SHATTUCK, AND CO.

1833.

Entered according to the act of Congress in the yoar one thousand eight hundred and thirty-throe,

by JOSEPH STORY,
in the Clerk's office of tho District Court of the District of Massachusetts.

CAMBRIDGE:

CHARLES FOLSOX, PRINTER TO THE UNIVERSITY,

COMMENTARIES.

CHAPTER XVI.

POWER OVER NATURALIZATION AND BANKRUPTCY.

$ 1097. The next clause is, that congress "shall have power to establish an uniform rule of naturalization, “and uniform laws on the subject of bankruptcies “throughout the United States."

§ 1098. The propriety of confiding the power to establish an uniform rule of naturalization to the national

government seems not to have occasioned any doubt or controversy in the convention. For aught that appears on the journals, it was conceded without objection. Under the confederation, the states possessed the sole authority to exercise the power; and the dissimilarity of the system in different states was generally admitted, as a prominent defect, and laid the foundation of many delicate and intricate questions. As the free inhabitants of each state were entitled to all the privileges and immunities of citizens in all the other states, it followed, that a single state possessed the power of forcing into every other state, with the

| Journ. of Convention, 220, 257. One of the yrievances stated in the Declaration of Independence was, that the king had endeavoured to prevent the population of the states by obstructing the laws for naturalization of foreigners. 2 The Confederation, art. 4. VOL. III.

1

enjoyment of every immunity and privilege, any alien, whom it might choose to incorporate into its own society, however repugnant such admission might be to their polity, conveniencies, and even prejudices. In effect every state possessed the power of naturalizing aliens in every other state ; a power as mischievous in its nature, as it was indiscreet in its actual exercise. In one state, residence for a short time might, and did confer the rights of citizenship. In others, qualifications of greater importance were required. An alien, therefore, incapacitated for the possession of certain rights by the laws of the latter, might, by a previous residence and naturalization in the former, elude at pleasure all their salutary regulations for self-protection. Thus the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction. And it has been remarked with equal truth and justice, that it was owing to mere casualty, that the exercise of this

power under the confederation did not involve the Union in the most serious embarrassments. There is great wisdom, therefore, in confiding to the national government the power to establish a uniform rule of naturalization throughout the United States. It is of the deepest interest to the whole Union to know, who are entitled to enjoy the rights of citizens in each state, since they thereby, in effect, become entitled to the rights of citizens in all the states. If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.

I The Federalist, No. 49. /

2 Ibid.

§ 1099. It hollows, from the very nature of the power, that to be useful, it must be exclusive; for a concurrent power in the states would bring back all the evils and embarrassments, which the uniform rule of the constitution was designed to remedy. And, accordingly, though there was a momentary hesitation, when the constitution first went into operation, whether the power might not still be exercised by the states, subject only to the control of congress, so far as the legislation of the latter extended, as the supreme law;' yet the power is now firmly established to be exclusive.? The Federalist, indeed, introduced this very case, as entirely clear, to illustrate the doctrine of an exclusive power by implication, arising from the repugnancy of a similar power in the states. “This power must necessarily be exclusive,” say the authors ; “ because, if each state had power to prescribe a distinct rule, there could be no uniform rule." 3

i Collet v. Collet, 2 Dall. R. 294 ; United States v. Villato, 2 Dall. 270; Sergeant on Const. Law, ch. 28, [ch. 30, 2d. edit.]

2 See The Federalist, No. 32, 42; Chirac v. Chirac, 2 Wheat. R. 259, 209; Rawle on the Const. ch. 9, p. 84, 85 to 88; Houston v. Moore, 5 Wheat. R. 48, 49 ; Golden v. Prince, 3 Wash. Cir. Ct. R. 313, 322; 1 Kent's Comm. Lect. 19, p. 397 ; 1 Tuck. Black. Comm. App. 255 to 259; 12 Wheat. R. 277, per. Johnson J. ; but see Id. 307, per Thompson J.A question is often discussed under this head, how far a person has a right to throw off his national allegiance, and to become the subject of another country, without the consent of his native country. This is usually denominated the right of expatriation. It is beside the purpose of these Commentaries to enter into any consideration of this subject, as it does not properly belong to any constitutional inquiry. It may be stated, however, that there is no authority, which has affirmatively maintained the right, (unless provided for by the laws of the particular country,) and there is a very strong current of reasoning on the other side, independent of the known practice and claims of the nations of modern Europe. See Rawle on the Constitution, ch. 9, p. 85 to 101 ; Sergeant on Const. Law, ch. 28, (ch. 30.] ; 2 Kent's Comm. Lect. 25, p. 35 to 42.

3 The Federalist, No. 32.

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