an ejectment suit); or "to set aside a judgment admitting defendant to citizenship" (Peterson v. State, 1905, 89 S. W., 81); or on a "rule to vacate and annul decree of naturalization, and rescind certificate issued thereon" (In re Shaw, 1892, 2 Pa. Dist. C., 250); or by the court's own motion (In re Langtry, 1887, 31 Fed., 879; and see Green's Son v. Salas, 1887, 31 Fed., 106).

Where the question before the court has been merely whether or not a certain individual was a citizen, the judgment having no reference to the cancellation or annulment of the naturalization proceedings, there has been of course no bill filed, and the question has come up more or less collaterally to the main question of the suit. Moreover, there seems to be no limitation as to the kinds of proceedings in which citizenship may be thus called into question. The following cases will suggest the range: In Spratt v. Spratt, 1830, 4 Peters, 393, the action was a suit in replevin in which the questions at issue were stated by Chief Justice Marshall, as follows: "It appears to the court to depend essentially on two questions: 1. Was James Spratt a citizen of the United States? 2. If he became a citizen, did the premises in the avowry mentioned pass to his alien relations, who are his next of kin?" The courts have permitted also examination into the citizenship of grand jurors who have found indictments against the accused. In Commonwealth v. Towles, 1835, 5 Leigh, 743, this question was raised by a plea in abatement. Note: It is settled that the question of citizenship may be properly raised by a plea in abatement, Hollingsworth v. Duane, 1801, Wall C. C., 51; De Wolf v. Ribaud, 1828, 1 Peters, 476; Coxe v. Gulick, 1829, 5 Halst. N. J., 328, and it has been suggested by some courts that this is the only way in which it might be raised under the common law forms of pleading. But in Catlett & Keith v. Ins. Co., 1826, 1 Paine, C. C., 594, the court held it might properly be raised under the general issue. In State v. Cole, 1864, 17 Wis., 674, it was raised by exception and demurrer.

In Ackerman v. Haenck, 1893, 147 Ill., 514, the court refused to examine into the citizenship of one of the judges of an election in a contested election case. In Richards v. McDaniel, 1820, 2 Nott & McCord, 351, the question was raised on a motion for a new trial in an action of trespass. In Green's Son v. Salas, 1887, 31 Fed., 106, it was examined on a plea that went to the jurisdiction, and in In re Yamashita, 1902, 30 Wash., 235, an application for admission to the bar afforded opportunity for passing upon the matter of citizenship. In Banks v. Walker, 1848, 3 Barb. Ch., 438, the question was raised in a suit to foreclose a mortgage, the claimant alleging naturalization.

D. WHAT EVIDENCE WILL IMPEACH.

While the cases have held that naturalization may not be proved by parol, other cases have held that they may be disproved by parol. To this point McCarty v. Hodges, 1846, 2 Edm. Sel. Cas., 433; Richards v. McDaniels, 1820, 2 Nott & McCord, 351; although the courts have also held that they will not be disproved by a certificate of the clerk of the court to the effect that no record of naturalization exists or appears there. Beardstown v. Virginia, 1876, 81 Ill., 541. This, however, appears to be purely a matter of evidence.

E. EFFECT OF LAPSE OF TIME ON INFORMAL PROCEEDINGS.

The case of In re McCarran, 1894, 8 Misc., 482, raised a very interesting point. It appeared there that the alleged invalid naturalization proceedings were had in 1866 and these were permitted to rest until 1894, when proceedings were brought by third parties to have the record declared invalid. The court asserted that such a length of time as this would defeat such an action as was brought, even for fraud. It should be noted in connection with this aspect of the case that not only were the proceedings brought by private parties, and so under the usual rule not maintainable, but also that they were not within the rule laid down in In re Yamashita, supra, as to proceedings void on their face.

SECTION S.-Effect of naturalization.

Naturalization proceedings instantly confer upon the party citizenship in the United States (Wood v. Fitzgerald, 1870, 3 Oreg., 568, 583), and from that time a person naturalized ceases to be a foreigner within the view of our laws. Spratt v. Spratt, 1828, 1 Peters, 341, 348. In pronouncing his opinion in the latter case, Chief Justice Marshall indicated the effect of naturalization in a general way with the following language:

A naturalized person is, indeed, made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The Constitution then takes him up and, among other rights, extends to him the capacity of suing in the courts of the United States precisely under the same circumstances under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the Constitution makes the distinction; the law makes none.

The general effect, therefore, of proceedings of naturalization is, as stated by Chief Justice Marshall, to put the naturalized alien in almost the exact position of a native-born citizen of the United States. Not only is the alien himself thus put in a new position, but his act may have an effect on others. As has been already seen, the naturalization of the parent may naturalize the child; the naturalization of the husband may naturalize the wife. This latter, however, was not the case until specially provided for by statute, and prior to the statute a number of interesting cases arose with reference to the wife's right of dower in lands acquired by her husband, she being still considered as an alien.

".

One of the earliest cases is Sutliffe . Forgey, 1823, 1 Cowen, 89, affirmed in 5 Cowen, 715, in which at the time of the marriage both parties were aliens, the land in question being acquired by the husband after naturalization. The court stated (and it would seem correctly) that while at common law the wife in such a situation would be an alien and so not endowable, still under the statutes of

a The precise question involved, where this statement was made by Chief Justice Marshall, had to do with the meaning of a Maryland statute, but the principle seems sound aside from this.

New York as then existing she did take her dower in the land. Under circumstances somewhat different, ten years later, in Mick v. Mick, 1833, 10 Wend., 379, the court denied dower to an alien widow of a natural-born citizen. In Priest v. Cummings, 1837, 16 Wend., 615, the latter case was distinguished from the first, and under the same conditions as in Mick v. Mick the wife was declared dowable; but this case was reversed on appeal, 1838, 20 Wend., 338, where the court also expressed the idea that citizenship was not retrospective. It is unnecessary for the purposes of this report to analyze the cases on dower.

The question raised by the last case, however, is of considerable importance. It would appear, as there indicated, that at common law the naturalization of a female alien acted retrospectively with reference to her dower rights, but this conclusion was denied in the case in question, under the authority of the New York statutes. As to whether or not naturalization has this effect has more frequently arisen, however, in connection with cases involving the descent of land and the holding of land by an alien purchaser after naturalization. One of the earlier cases in which the first question was discussed was that of People v. Conklin, 1841, 2 Hill (N. Y.), 67. It appeared there that lands were devised in 1779, subject to a life estate, which actually continued until 1832. The demandant was naturalized in 1828. The court held that under the circumstances here, entirely aside from the question of citizenship, the demandant. could not, under the canons of descent, successfully defend his suit against the plaintiffs. However, the judge went further and discussed the matter as to whether or not his naturalization could be retrospective, and laid down, in a dictum, what seems to be the law on this subject:

In answer to this objection we were referred to cases where it has been held that naturalization sometimes has a retroactive effect, and confirms a defective title previously vested in the alien. Those are cases where the alien had acquired lands by purchase, in which mede he may take, and was then naturalized before office found. But in this case the alien must claim by descent. and as he could not take lands in that way he had no estate or title to be confirmed by the naturalization. He took nothing on the death of his father; and naturalization, though it may confirm a defective title, will not confer an estate.

This language was subsequently queted and relied upon in Heeney ". Trustees, etc., 1861, 33 Barb., 360, affirmed in 39 N. Y., 333, where at the time of the descent cast the party was an alien, though he was subsequently naturalized.

The second point has been raised and has also received consideration by the courts. In Jackson . Beach, 1800, 1 Johns. Cases, 399, it appeared that an alien was the cestui in relation to certain lands which had been purchased and settled upon a trustee in his favor. Later he became naturalized, and the trustee then transferred the legal estate to him. It was insisted that this could not be done, but the court held that inasmuch as the alien could hold until office found, such naturalization confirmed the title which he had previously acquired. And this line of reasoning was followed in the case of Jackson v. Green, 1831, 7 Wend., 333.

The rights and duties which citizenship confers are not, as already suggested, within the purview of this report, and will not be further considered.

CHAPTER II.-NATURALIZATION BY NATURALIZATION OF parent. By the act of 1790 it was provided that " 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." The act of 1795 reenacted this clause. The statute of 1802 provided "that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of 21 years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States." This statute was in force down to 1878, and at that time was substantially incorporated into the Revised Statutes as section 2172. A statute in 1804 made a further provision for minor children to this effect:

That when any alien who shall have complied with the first condition specified in the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act [the sections relating to taking the declaratory oath], may die, before he is actually naturalized, the widow and the 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.

The cases arising under these statutes may be classified in the following manner:

SECTION 1.-Naturalization by naturalization of the father.

A. WHERE NO DOUBT EXISTS AS TO THE FATHER'S NATURALIZATION. It has been from the first clear, under these statutes, that a minor child was naturalized by the naturalization of the father. In the matter of Morrison, 1861, 22 How. Pr., 99; People v. McNally, 1880, 59 How. Pr., 500; State v. Mims, 1879, 26 Minn., 183; Prentice v. Miller, 1890, 82 Cal., 570; Dorsey v. Brigham, 1898, 177 Ill., 250; and see Haynes v. Ray, 1880, 54 Iowa, 109. It has also been decided that in order for the statute to operate in favor of the minor child the father must have taken out his final papers before the child became of age, Berry v. Hull, 1892, 6 N. Mex., 643, 660; or, which amounts to the same thing, that the mere fact that the father has made the declaratory oath (taken out his first papers) will be of no force or efficacy in naturalizing the minor child; In re Conway, 1863, 17 Wis., 526; In re Moses, 1897, 83 Fed., 995; and see Ex parte Overington, 1812, 6 Binn, 371; unless indeed the father dies after the taking of such oath and before final naturalization, in which case. the children are by the terms of the statute made citizens by virtue of the father's act. Schrimpf v. Settegast, 1873, 38 Tex., 96.

However, while the decisions thus far stated are merely declaratory of the wording of the statute, a number of interesting questions have arisen for adjudication in the courts upon points not so well covered by the statute. One of the earliest cases is Campbell v. Gordon, 1809, 6 Cranch, 176, 183, in which it appeared that one William Currie, a British subject, emigrated to the United States, taking out his naturalization papers in 1795. At this time Currie had one daughter,

who was born in Scotland, and who at the time of her father's naturalization was a resident there, she not coming to the United States until 1797. In passing upon the question of her citizenship, Washington, J., said:

The next question to be decided is whether the naturalization of William Currie conferred upon his daughter the rights of a citizen, after her coming to and residing within the United States, she having been a resident in a foreign country at the time when her father was naturalized?

Whatever difficulty might exist as to the construction of the third section of the act of the 29th of January, 1795, in relation to this point, it is conceived that the rights of citizenship were clearly conferred upon the female appellee by the fourth section of the act of the 14th of April, 1802. This act declares that the children of persons duly naturalized under any of the laws of the United States, being under the age of 21 years at the time of their parents being so naturalized, shall, if dwelling in the United States, be considered as citizens of the United States. This is precisely the case of Mrs. Gordon. Her father was duly naturalized, at which time she was an infant; but she came to the United States before the year 1802, and was at the time when this law passed dwelling within the United States.

It is therefore the unanimous opinion of the court that at the time of the death of James Currie Mrs. Gordon was entitled to all the right and privilege of a citizen; and, therefore, that there is no error in the decree of the circuit court for the district of Virginia, which is to be affirmed with costs.

The effect of this decision is, of course, to hold that it is immaterial that the child be a resident of the United States at the time of naturalization, it being sufficient that the child become a resident during minority.

But no other case has gone the lengths on this point that were reached in Young v. Peck, 1839, 21 Wend., 389, affirmed on appeal, 1841, 26 Wend., 613. Here a father emigrated to America before the Revolutionary war, becoming at its close a citizen by virtue of the new allegiances created at that time. He left in Scotland, on emigration to this country a daughter who grew up, married, and remained in Scotland until after her husband died. She was born about 1770 and did not come to America until 1830. The court held that she was a citizen. The case is somewhat difficult to understand. On its appeal Chancellor Walworth stated the proposition of the case thus:

The question then arises whether his infant daughter, who had been left by him in Scotland in 1774, and who was still an infant, not only at the time he became a citizen of this State, but also at the time of the treaty of peace in 1783, is entitled to the rights of citizenship here, either by this transfer of the allegiance of her father or by virtue of the fourth section of the naturalization act of April, 1802. The learned chief justice who delivered the opinion of the supreme court has put his decision in her favor upon the latter ground.

A reference to the statute given, supra, will show that on this point it is ambiguous. It provides that children shall be citizens upon the naturalization of their parents where they are "under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, if dwelling in the United States." Obviously, the question is left open whether this means whenever they are dwelling in the United States they shall be considered citizens, or they shall be considered citizens if dwelling in the United States at the time of naturalization. As understood by the chancellor, Nelson, C. J., had placed his decision in the lower court upon the ground that the statute meant that whenever the child came within the United States it should be considered a citizen. But in his own opinion, the chancellor abandoned this position, and, while