bilities ought to consider it of sufficient value to attend where the records of the court are held in proper legal custody."

The same question was raised two years later in Andres v. Arnold, 1889, 77 Mich., 85. The relator, Andres, had applied for a writ of mandamus, and his right to the relief depended upon whether or not the declaratory oath had been properly administered to him. It appeared from the facts in the case that the oath had not been taken at the office of the clerk. After a considerable discussion of the early naturalizing laws and the language used in them, the court concluded that it was immaterial at what place the declaratory oath was taken, saying there was nothing in the language of the statute to indicate that the declaratory oath differed from the oaths taken before judges, justices, notaries, commissioners, or clerks on other occasions where an oath was required, and that therefore

there is no reason why an oath may not be taken before him at any place where he happens to be, as well as before a judge, or justice, or notary, or commissioner. He is the person indicated by the law. When it dispenses with his action in open court, it dispenses with the only locality which is universally known for clerical action; and we can not require his action under the naturalization laws to be had in any particular spot, or room, or building without adding to the law a qualification of our own not indicated by its language and not required by any of its purposes.

The second question that has arisen in this connection is whether or not the oath may be administered by a deputy clerk away from the office of clerk. The question was raised in State v. Olin, 1868, 23 Wis., 309, 317, the court remarking:

Whether such declaration may, under any circumstances, be made before the deputy of such clerk, or must in all cases be made before the clerk himself, is a question which has been argued in this case, but which, not being necessary to the decision, will not be decided.

The question here raised, however, seems to be sufficiently answered by the cases discussed under the heading " Composition of the courts (sec. 2 A, supra), in which it was shown that a deputy clerk may perform the functions of a clerk in naturalization proceedings. But the further question whether a deputy may perform the services of clerk away from a clerk's office has also been raised. It is entirely clear that under the ruling of the court in In re Langtry such a thing could not be possible. It seems equally clear that if the clerk himself might perform this duty away from his office, and that the deputy may perform the functions of the clerk, then the deputy may himself administer the declaratory oath away from the clerk's office or his own office. This was the effect of the rulings of the court in In re Boso, 1890, 6 Kulp, 83. The court in this case considered the earlier

a It should be noted that in this case the question was called up for consideration by the judge himself, and was not involved in any proceeding pending before the court, nor was there any special proceeding instituted for the purpose of questioning the validity of the declaratory oath. The report states that " Field, circuit justice, addressing Mr. Barnes, a counselor of the circuit court, inquired whether he was counsel for Mrs. Langtry. Mr. Barnes replied that he was not such counsel, although he had given her advice as to making a declaration to become a citizen. The justice then said that his attention had been called to the fact that Mrs. Langtry's declaration had been taken at her residence in this city, and not at the clerk's office, and that for that purpose the records of the court, in which such declarations are entered, had been carried by the deputy clerk to her rooms; and that great doubt existed in his mind as to the legality of the declaration thus made." The report then uses the language quoted above.

case of Santo Scola, 1890, 8 Pa. County, 344, in which an opposite result had been reached, but declared itself unable to follow the reason and the result reached in this latter case.

(c) What is a sufficient declaration. But little inquiry seems to have arisen as to what is necessary in a declaration of intention, or as to what the declaration must contain. The question can scarcely arise under the new statute, which has provided a blank form to be filled out by the applicant. The matter has, however, been the subject of some litigation, and was up for consideration in United States v. Walsh, 1884, 22 Fed., 644, the question being whether or not one could be convicted of perjury for falsely swearing in connection with his declaration of intention, the attorney for the defendant insisting that an oath was not necessary to accompany the declaration and that therefore there could be no punishment for perjury on a false oath so made. The court declared, however, that the declaration of intention must be sworn to.

An interesting question has also arisen in connection with this matter as to whether or not if more be done than the statute requires the excess shall invalidate the required portion of the ceremony. In Richards v. McDaniel, 1820, 2 Nott & McCord, 351, the applicant at the time of making his preliminary declaration took, thus prematurely, the oaths as to supporting the Constitution which are required when the applicant presents himself for naturalization. The court held that the oath to support the Constitution was immaterial and that the declaration was valid. At another trial of the same case a second question appeared as to whether or not the record of the declaration of intention should appear in the naturalization record. The court considered it unnecessary. Richards v. McDaniel, 1820, 1 McCord, 187.

This point will be discussed more fully in subdivision Bb of this section.

(d) Where filed. There is but little authority on this question, and the most that can be done is in the way of inference in the matter. In In re Fronascone, 1900, 99 Fed., 48, the court, after discussing the provisions of the Revised Statutes relating to the declaration of intention, declared that such declaration must be made a part of the record, and the cases below under the heading discussing the manner of proving declaration of intention go to this point also. It is a fair inference from this that the declaration of intention, being part of the record, must of course be with the record, and therefore be filed with the records of the court wherever they may be kept.

(e) Proof of intention. The requirements in this regard have been variously stated. In Berry v. Hull, 1892, 6 New Mexico, 643, the question was up for decision of the court, and Seeds, J., declared that the certificate of his intention to become a citizen is the only proof receivable of that fact." In the case of State v. Barrett, 1889, 40 Minn., 65, the court declared that the declaration of intention might be proved by producing the original affidavit of such declaration or a copy of such declaration properly certified by the clerk or deputy clerk and attested by the seal of the court. In State v. Penny, 1850, 10 Ark., 621, the court considered as sufficient to prove the declaration an authenticated copy of the record which contained it. In In re Fronascone, supra, the court distinctly held, however, that such declaration could not be established by the vague oral statements of a

single witness. (Distinguish between establishing the fact of a previous declaration of intention and the fact of the intention itself.)

(f) Necessity for declaration.-Except where the statute expressly provides otherwise, as in the case of minors and married women (widows), it is thoroughly well settled from a very early date that the oath of naturalization can not be taken unless there has been a prior declaration of intention made according to the form provided by law. There are a number of cases on this point. Ex parte Sanderson, 1804, 1 Cranch C. C., 219; McCarty v. Hodges, 1846, 2 Edm. Sel. Cas., 433; Ex parte Brownlee, 1848, 9 Ark., 191; In re Merry, 1880, 14 Phila., 212; In the matter of Desty, 1880, 8 Abb. N. C., 250; State v. Brandhorst, 1900, 156 Mo., 457.

A question which may be confused with the question of necessity for declaration is as to the proof of intention to become a citizen, which is required from minors who are not under the law required to make the preliminary declaration. The Revised Statutes, section 2167, provide that he (the minor alien) shall

further declare on oath, and prove to the satisfaction of the court, that, for two years next preceding, it has been his bona fide intention to become a citizen of the United States.

In the case of In re Fronascone, supra, the court held that the—

vague oral statement of a single witness, commonly offered under section 2167. in substitution for the documentary evidence required by section 2165, can not be sufficiently relied upon

by the applicant. In taking his final oath, as indicated by the statute, it is necessary that he should make a declaration which is regularly required of applicants of age. This would seem to require that the same formality be gone through with as in the normal case, but that it be done at the time when the oath of naturalization is taken. In In re Randall, 1880, 14 Phila., 224, it was held that this declaration must be so made and must clearly set forth the time when the intention to become a citizen was actually formed.

(g) Effect of declaration.-It is thoroughly well established that although by special provision of the mining and agricultural laws certain rights have been given to those who have merely declared their intention to become citizens, still that one who has complied with this formality only is not a citizen of the United States. The question has arisen oftenest with reference to the power of the Federal courts to take jurisdiction over controversies arising between citizens and aliens, and it has been repeatedly held that one who had taken a declaratory oath was still an alien. Baird v. Byrne, 1854, 3 Wal, jr., 1; Lanz v. Randall, 1876, 4 Dill., 427; Maloy . Duden, 1885, 25 Fed., 673; City of Minneapolis v. Reum, 1893, 6 C. C. A., 31; s. c. 56 Fed., 576, and see In re Wehlitz (1863), 16 Wis., 443; State v. Cole, 1864, 17 Wis., 674; In re Conway, 1863, id., 526.

The State courts have held that they did not lose jurisdiction within the constitutional provision of a case which arose between an alien and one who had taken his declaratory oath, on the ground that the latter was still an alien and therefore the suit was between two aliens. Orosco v. Gagliardo, 1863, 22 Cal., 83. Nor was one who had taken the declaratory oath a citizen within the meaning of the statutes of Congress, which provided that a citizen of the United States who had suffered from Indian depredations might recover from the Government the amount of his losses. Johnson v. United States, 1893, 29 Court of Claims, 1. Moreover, it has been held that

v.

it is immaterial that at the time of taking the declaration the applicant also took the oath of allegiance, since the latter was unauthorized and of no effect. Richards . McDaniel, supra. And, further, it is immaterial as to the question of citizenship, that the taking of the declaratory oath may entitle the applicant, under the suffrage laws of the State, to vote. Lanz v. Randall, supra, and Berry v. Hull, supra. There is some conflict as to the effect upon the rights of minor children alien born to inherit from a father who has merely taken his declaratory oath of citizenship. In Schrimpf v. Settegast, 1873, 38 Tex., 96, the court held that under such conditions the alien took. A directly opposite result was reached in White . White, 1859, 2 Met. (Ky.), 189. These decisions, of course, must be viewed from the standpoint of the local regulations with reference to the descent of land.

The question has also arisen as to whether or not the taking of the declaratory oath makes a citizen of the wife of the declarant. It is entirely clear on principle that such should not be the effect, and such was the decision reached by the court. Dorsey v. Brigham, 1898, 177 Ill., 250.

It is of interest in passing to note the effect of a declaration to become a citizen of the United States under certain treaty provisions. For instance, it was provided by our treaties with Mexico that those who desired to become American citizens should indicate such desire by a declaration of intention and that they then should be considered American citizens. The courts have declared that such declaration was all that was necessary to make of such applicants American citizens; that no further step in the ordinary process of naturalization need be taken. Carter v. Territory, 1859, 1 New Mex., 317.

(h) Declaration with residence.-It has sometimes been sought to establish the proposition that declaration with a long continued period of residence thereafter, the declarant having taken no further steps to naturalization, should make of the party a citizen. But the courts have steadily refused to adopt such a principle. One of the most extreme cases on this point is that of Lanze. Randall, supra, in which there had been a residence of some fifteen years after the first declaration of intention. but the court held that this was of no avail in making of the declarant a citizen. The same rule has been held even where the applicant came to this country as a minor 13 years old; had, sometime after becoming of age, taken his declaratory oath, but had not, after a total of eighteen years of residence, then taken out his naturalization papers. The court declared he was not a citizen. Johnson v. United States, supra.

It seems clear of course that if the period of residence has not been sufficient to give a right to take out the second papers it should not be equivalent to naturalization, and this has been held in Baird e. Byrne, supra; and see generally on the topic Richards . McDaniel, 1820, 2 Nott & McCord, 351.

(i) When the declaration is dispensed with. The declaration is never dispensed with except by the positive provisions of the statutes. It has been customary to dispense with it in the case of minors, and in the case of widows of aliens who have made the declaration; and by some special statutes relating to soldiers and seamen. The cases of In re Fronascone, supra; Schutz's Petition, 1886, 64 N. H., 241; and In re Randall, supra, bear upon the question where it concerns infants.

B. PETITION FOR NATURALIZATION.

(a) When the petition may be made. This point has already received a sufficiently full consideration under the heading of "Residence," section 3 B, supra, where the extracts from the statutes controlling this matter were collected. It is sufficient here to say that the usual period that must elapse before an alien might take out his naturalization papers, with the single exception of fourteen years provided by the statute of 1798, has been five years. While this period, as suggested, provided that proceedings could not be brought earlier than that, they, of course, might be instituted at any time after that period. (b) To whom the petition must be made.--The statutes are uniform in providing that the petition must be made to the court itself, and the cases generally, in which any question of citizenship is involved, show that the proceedings have usually been before a court. One case, however, In re Clark, 1854, 18 Barb., 444, shows that in New York at least it was for a considerable time the custom for clerks of the court to issue naturalization papers to applicants, but in the case cited Dean, J., took occasion to express his disapproval of this method and to assert that the proceedings could be lawfully taken only by the court itself.

(c) What the petition must contain.-One of the best brief statements of what must be contained in the petition for naturalization is that given In re Bodek, 1894, 63 Fed., 813, 814, where the court says:

Every such petition must, of course, allege the existence of all facts and the fulfillment of all conditions, upon the existence and the fulfillment of which the statutes which confer the right asserted have made it dependent, and I believe that the petitions usually presented conform to this rule.

As to just what these allegations are must be determined by reference to the statutes under which the naturalizing proceedings were held. The Revised Statutes, section 2165, provide that

any alien who was residing within the limits and under the jurisdiction of the United States before the twenty-ninth day of January, one thousand seven hundred and ninety-five, may be admitted to become a citizen, on due proof made to some one of the courts above specified that he has resided two years at least within the jurisdiction of the United States, and one year at least immediately preceding his application withn the State or Terrtory where such court is at the time held.

Other cases bear out the statement made In re Bodek. The court In re Alien, 1845, 7 Hill, 137, expressed the same idea by saying that the petition must allege a compliance with all conditions. In Cumming's petition, 1860, 41 N. H., 270, two questions arose, the alien in that case being a minor at the time of his immigration into this country and was seeking to be naturalized under the act of Congress of March 26, 1824. The petition alleged in substance the residence of the petitioner with his father's family in a specified county in June, 1848, when he was a minor under the age of 18 years, continued residence therein until August, 1857, and a subsequent residence until August, 1859, in various parts of the United States, when he returned to his father's family in the county named, where he had since remained. This was held faulty on the ground that it contained no allegation that it had been the bona fide intention of the applicant for three years next prior to his application to become a citizen of the United States. The court declared, however, that this