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such jurisdiction. Nor do we think such can be held to be the legislative intention.”
A court with no clerk or recording officer other than the judge, has been held to have no jurisdiction of applications for naturalization. Mills v. McCabe, 44 Ill., 194; State ex rel. Fossler v. Webster, 7 Neb. 469; Re Dean, 83 Me. 489.
In ex parte Gladhill, 8 Met. 168, the question being whether the police court of Lowell, Mass., was a court of record, the court said:
“It possesses all the characteristics of a court of record. It is to be holden by a learned, able, and discreet person to be appointed and commissioned by the governor pursuant to the constitution. In general, all judicial officers by the constitution hold their offices during good behavior, except justices of the peace, whose office is limited to the term of seven years. There is also a provision, Section 8, for the appointment of special justices to hold the court whenever the standing justice shall be interested in any suit or prosecution, or shall be unable, from any cause, to hear and determine any matter pending in said court. This indicates the establishment of a court, or judicial organized tribunal, having attributes and exercising functions, independently of the person of the magistrate designated generally to hold it, and distinguishes it from the case of a justice of the peace on whom, personally, certain judicial powers are conferred by the law.
“We have no doubt it is a court of record. Section 6 directs the keeping of a fair record and a subsequent act, cited hereafter, authorizes the appointment of a clerk for the same purpose."
2. Common Law Jurisdiction.
The courts have frequently construed the phrase: "common law jurisdiction," in the naturalization statutes. The constructions have not been uniform.
Mr. Justice Story, in Parsons vs. Bedford, 3 Pet. 433, said: “The phrase “common law' found in this clause, is used in contradistinction to equity and admiralty and maritime jurisprudence.”
In the case of In re Conner, 39 Cal. 98, the court said that the term “common law jurisdiction” is capable of no other meaning than jurisdiction to try and decide causes which were cognizable by the courts of law under what is known as the common law of England; that, as our judicial system was modeled chiefly after that of England, when we speak through our statutes and courts of common law actions, proceedings at common law, and common law jurisdiction, we mean such actions, proceedings, and jurisdiction as appertain to the common law of England as administered through her courts. The court held, however, that the statute did not require that the courts have all the common law jurisdiction which pertains to all classes of actions, but that it was enough that it had “common law jurisdiction."
In United States vs. Power, 14 Blatch. 223, it was decided that the City Court of Yonkers, which by statute had civil jurisdiction in all actions for the recovery of money when the amount recovered did not exceed one thousand dollars, had jurisdiction in naturalization proceedings. The court said that it was manifest that by the statutory provisions the court was "authorized to exercise some common law jurisdiction—that is, it has jurisdiction to hear and determine causes which were cognizable by the courts of law under what is known as the common law of England, although it has not jurisdiction of all such causes.” The court added, that the statute of the United States did not require of courts authorized to entertain applications for naturalization that they should have all the jurisdiction possessed by any court of law; that if the court might exercise any part of that jurisdiction it was within the language of
the statute and within its meaning as well. See, also, 8 Met. 168; 2 Curt. 98; 50 N. H. 245; 39 Cal. 98.
In accordance with this view, a county court which had exclusive jurisdiction in common law actions of trespass commenced in a justice's court, was held to. come within the terms of the statute. People v. Sweetman, 3 Park. Crim. Rep. 358.
And, in People v. Pease, 30 Barb. 588, it was decided that a county court, shown to have jurisdiction of suits commenced in a justice's court, where it appeared by the answer of the defendant that the title to lands had come in question, also in matters of partition and admeasurement of dower, "with other powers not enumerated," satisfied the statutory requirements.
The court, in In re Conner, supra, held that the fact that the jurisdiction of the court was restricted as to the amount involved did not deprive it of authority to act in naturalization proceedings.
In United States v. Lehman, 39 Fed. 49, it was held that a court of criminal correction whose jurisdiction was statutory, “having power to punish offenses that existed at common law, and to enforce private rights and to redress private wrongs recognized by the common law," and whose action in the exercise of that power “is governed by the principles, rules, and usages of the common law in so far as they have not been modified or abolished by statute,” had power to naturalize aliens. The court said: “Congress intended to confer the power of naturalization on all courts of record of the several states that have power to administer justice under and in accordance with that system of jurisprudence known as the common law." See, also, Levin v. United States, 128 Fed. 826.
On the other hand, there are decisions holding that courts empowered by statute to exercise common law jurisdiction for certain purposes, but, not having common law jurisdiction in all cases, did not come within the terms of the act of Congress. Ex parte McKenzie, 51 S. C. 244; Ex parte Tweedy, 22 Fed. 84.
3. Act of June 29, 1906.
The Act of Congress of June 29, 1906, substitutes for the phrase "common law jurisdiction” the words “jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.” The difficulty indicated in the diverse decisions we have just been considering is not obviated by the change in phraseology of the law. It expressly provides that a court may naturalize which has jurisdiction of actions both at law and in equity, or of actions either at law or in equity. This language confers jurisdiction on courts of equity.
The law contains the qualification, however, that the amount in controversy shall be unlimited.
4. State Courts.
It is apparent that the majority of naturalizations are by state courts.
Before a state court acts in a naturalization proceeding, under the act of 1906, the clerk of the court is required by a regulation of the Department of Commerce and Labor, to furnish the Bureau of Naturalization with authoritative evidence (preferably the certificate of the Attorney-General of the state) that the court has “a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.” Nat. Reg. of Oct. 2, 1906.
There is a line of decisions holding that state courts in admitting aliens to citizenship, act as United States courts. An opposite view is held by another line of cases.
In People v. Sweetman, 3 Park. Crim. 358, the court said: “The Act of Congress (relating to naturalization) adopts every state court as its agent to do this service that is a court of record, and has common law jurisdiction and a seal and clerk.
Without attempting to examine the question in regard to the power of the Federal Government to confer such jurisdiction upon state courts and magistrates, it seems
quite clear that, in entertaining such proceedings they are exclusively under the laws of the United States, and should be deemed quoad hoc courts of the United States.” See, also, Re Christern, 11 Jones and S. 523; and In re Ramsden, 13 How. Pr. 429.
The leading case holding an opposite view is United States v. Severino, 125 Fed. 949, in which the authorities on both sides are collected and reviewed and the conclusion reached that: “State courts while entertaining jurisdiction in naturalization proceedings remain state courts.” See, also, Rump v. Commonwealth, 30 Pa. St. 475.
It was also held in United States v. Severino that perjury committed by a witness in a naturalization proceeding in a state court is punishable by the sovereignty whose justice it offends, and that the Federal court can not entertain jurisdiction in the absence of a Federal statute conferring it.
In In re Naturalization, 5 Pa. Dist. R. 597, it was held that state courts are not obliged to exercise the power conferred by Rev. Stat. Sec. 2165.
In Stephens, Petitioner, 4 Gray, 559, it was declared that the power to naturalize given to state courts is a naked power which imposes no legal obligation on courts to assume and exercise it, and that such exercise is not within their official duty or their oath to support the Constitution of the United States. The court added: “But whatever may be the authority of Congress to require the performance of duties by state courts, magistrates and officers not affecting the organization of the national government or not expressly provided for by