McCarty v. Hodges.

NEW YORK CIRCUIT.

OCTOBER, 1846.

Before EDMONDS, Circuit Judge.

MCCARTY V. HODGES.

In the naturalization of an alien, a previous declaration of intention is an absolute prerequisite, without which the naturalization is absolutely void. The record of naturalization, though it adjudicates that such declaration has been made, is not conclusive, but it may be disproved by parol.

It is a question of jurisdiction upon which the court of final naturalization cannot so adjudicate as to preclude inquiry.

In questions of pedigree, four kinds of evidence may be received: personal knowledge, hearsay among relatives, family conduct and general reputation.

Hearsay, to be admissible, must be from those connected with the parties, so situated as to be likely to know, and are dead.

Family conduct from those who, by recognizing the relationship, evince a belief and opinion on the subject.

General reputation is admissible when of so ancient a date and so wide spread as to preclude the idea of fabrication.

THIS was an action of ejectment, brought to test the title to certain valuable real estate in Broadway, Franklin and Leonard streets, on a part of which stands the Carleton House.

Dennis McCarty, a naturalized citizen of the United States, died in the city of New York in 1835, seized of the real estate in dispute in this suit. He left no children, but several sisters, who, by reason of their alienage, were incapable of inheriting, and several nephews, who, though citizens, labored under the same disability by reason of the alienage of their parent, who was living and through whom alone they could inherit. The land was therefore deemed to be escheated to the State for want of heirs who could take. Upon the application of some of his near relatives, the Legislature released the claim of the State and directed the property to be sold and the proceeds 55-vol. 2.

McCarty v. Hodges.

distributed among certain of the relatives. This was done, and under that sale these defendants claimed that property.

The plaintiff in this suit, however, claimed that the land did not escheat, but descended to him as heir of the decedent; and to make out his claim, he proved himself to be related to the decedent in the eighth degree of consanguinity, and that, though born in Ireland, he was naturalized before the death of Dennis McCarty, to wit: on the 26th of August, 1834; and that, although more distantly related to the late owner than several relatives who were not citizens, yet, as he was the only heir who was capable of inheriting, his title to the property under our laws was superior not only to that of those nearer relatives, but also to that of the purchasers under the sale.

To support his claim, he gave in evidence the proceedings of the Court of Common Pleas of the county of Saratoga, where he resided, from which it appeared that on the 2d of September, 1831, he presented to the court a petition setting forth that, being desirous of becoming naturalized, in compli ance with the laws of the United States, he did thereby report his name, birth-place, age, place whence he emigrated, government to which he owed allegience, and his residence in this country, to which he made oath in open court.

In August, 1834, he again appeared in the same court with his witnesses, and took the oath of allegiance, whereupon that court gave its judgment that, "it having appeared to this court that D. M'C. has, in due form of law, more than two years since, declared his intention to become a citizen of the United States; and this court being satisfied that the said D. M'C. has resided within the limits of the United States five years at least, and within the State of New York at least one year; and that during that time he has behaved as a man of a good moral character, attached to the Constitution of the United States, and well disposed to the good order and happiness of the same, and having now here in court declared on oath as follows: (the oath of abjuration and allegiance.) It is therefore ordered by this court, that the said D. M'C. be admitted a citizen," etc.

McCarty v. Hodges.

Upon this state of the record it was contended by the defendant that the naturalization was void, because the plaintiff had not taken the preliminary step of declaring is intentions; while on the other it was insisted, that the adjudication of that court in August, 1834, that M'C. had "in due form of law declared his intentions," was conclusive, and that the want of such declaration could not now be inquired into. At the close of plaintiff's testimony, a motion was made. for a nonsuit, on the ground that the plaintiff had not been naturalized.

Gerard, Emmet and Foster, for plaintiff.

J. R. Whiting and O'Conor, for defendants.

The Circuit Judge gave the following opinion on this point:

The act of congress is very explicit and peremptory. It declares that any alien may be admitted to become a citizen on the following conditions, and not otherwise:

1st. That he shall have declared on oath his intention to become a citizen, and to renounce all other allegiance; and,

2d. That at the time of his admission he shall take the oath of abjuration and allegiance, and satisfy the court as to certain matters not material to this case.

Both of these conditions must be complied with. No court has power to dispense with either of them, and the omission of either of them would be a fraud upon the statute, which would necessarily render void any judgment or certificate of naturalization which any court might give. Such is the plain intention of the act of congress, and such is the construction which the Supreme Court of the United States have given to the statute.

I find no adjudication on this point in the courts of our State, but in one of our sister States, South Carolina, the same principle has been adopted. (1 McCord's Chan. R. 370, Vaux v. Nesbit.)

McCarty v. Hodges.

If there was no evidence before me, but the record of the proceedings of August, 1834, I should be bound to presume that the preliminary proceedings required by the statute had all been had. (Campbell v. Gordon, 6 Cranch, 176; Stark v. Chesapeake Insurance Co., 7 id. 420; McDaniel v. Richards, 1 McCord, 187.) The courts are indulgent towards their proceedings, and make the most liberal intendments in their favor. (Priest v. Cummings, 16 Wend. 625.)

But the record before me does not stop here. It gives the preliminary proceedings had in that court, which do not of themselves show a compliance with the act of congress, for they show that the plaintiff in September, 1831, did not declare his intentions, as peremptorily required by the statute, and, instead of it, merely made a report of himself in compliance with the second section of the act of 1802. That section having been repealed prior to 1831, such report became entirely nugatory and cannot aid the plaintiff, because it cannot in any manner be regarded as a compliance with that condition which required him to declare his intentions. If, then, the plaintiff never took any other proceedings, preliminary to his final naturalization, except the report of 1831, he has omitted one of the indispensable conditions which the act of congress requires, and I should be compelled to regard that omission as fatal to the validity of his naturalization. Any other view would enable a foreigner to obtain the rights and privileges of an American citizen in fraud, and in violation of the very law which confers them upon him.

But the difficulty in the case is, that the question whether the report of 1831 was the only proceeding preliminary to the final naturalization, is not so well established in point of fact, as to reduce the matter to a mere question of law for the court alone to pass upon.

On one side is the strong presumption arising from the whole record that the report of 1831 was the only preliminary proceeding. And on the other is the express adjudication of the Court of Common Pleas in their judgment of naturalization, that the plaintiff had "in due form of law, more than

McCarty v. Hodges.

two years since, declared his intention to become a citizen of the United States."

This is presumptive evidence that the plaintiff had so declared his intentions, for he was at liberty to have declared them in any other court of competent jurisdiction, the statute not confining the preliminary proceedings to the same court where the final proceedings may be had.

It is, therefore, if the record is not conclusive, a question of fact to be submitted to the jury whether the plaintiff ever did, in fact, declare his intentions, pursuant to the act of congress.

But I have my doubts whether the final record of naturalization is not conclusive upon me. I feel the force of the argument that if it is so, foreigners may be admitted as citizens in fraud of the law, but that can be remedied by the court, in which the proceeding was had, correcting its own record. But the cases are very strong that in this court that record must be regarded as conclusive. In Campbell v. Gordon (6 Cranch), it was decided that the naturalization was valid, though the record contained no adjudication of his admission, nor that he had behaved as a man of good moral character. Justice WASHINGTON says, "it must be presumed that the court before whom the oath was taken was satisfied; that the oath when taken amounts to a judgment of the court." In Stark v. Chesapeake Insurance Co. (7 id.), it is reported to have been decided that the judgment admitting the citizen is conclusive that all the prerequisites have been complied with.

These two cases have been so regarded in our court: Priest v. Cummings (16 Wend. 625): and in Spratt v. Spratt (4 Peters, 408), Chief Justice MARSHALL says: "The various acts of naturalization submit the decision on the rights of aliens to admission to courts of record. They are to receive testimony, to compare it with the law, and to judge in both law and fact. This judgment is entered on record as the judgment of the court. It seems to us, if it be in legal form, to close all inquiry, and like every other judgment, to be complete evidence of its own validity."

In either aspect of the case, then, this motion for a nonsuit