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it is well established that such courts and magistrates may, if they choose, exercise the powers thus conferred by Congress unless prohibited by state legislation.” See, also, Rushworth v. Judges, 58 N.J. Law, 97; Morgan v. Dudley, 18 B. Mon. 693; State v. Penney, 10 Ark. 621.
In State v. Whittemore, 50 N. H. 245, the view was expressed that the state legislature may prohibit a state court which comes within the class of tribunals described in the United States Act, from exercising jurisdiction in naturalization cases. But " the state can not confer that jurisdiction on any tribunal which does not come within the terms of the United States Statute." Id. See, also, In re Ramsden, supra.
The state may indicate which of its courts coming within the class of tribunals described in the United States Act, shall exercise the jurisdiction, and it may fix the time within which such jurisdiction may be exercised. Rushworth v. Judges, supra. See, also, In re Gilroy, 88 Me. 199; Ryan v. Egan, 156 Ill. 224.
Functions. Naturalization is a function of the court, not of the clerk.
While the preliminary declaration of intention may be made before the clerk, the petition for naturalization must be addressed to the court (Sec. 27); the facts as to the requisite residence of the applicant, his behavior as a man of good moral character and attachment to the principles of the Constitution, must “be made to appear to the satisfaction of the court." These facts shall be proved by the oath of the applicant and the testimony of at least two witnesses, citizens of the United States. Sec. 4, par. 4.
And the law expressly provides that "every final hearing upon such petition shall be had in open court before a judge or judges thereof, and every final order which may be made upon such petition shall be under the hand of the court* and entered in full upon a record kept for that purpose, and upon such final hearing of such petition the applicant and witnesses shall be examined under oath before the court and in the presence of the court.”
The applicant is required, before he is admitted to citizenship to declare on oath, in open court, that he will support the Constitution and defend it and the laws of the United States against all enemies and bear truth faith and allegiance to the same.
He shall also declare on oath, in open court, that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of which he was before a citizen or subject. Sec. 4, par. 3.
In case the applicant has borne any hereditary title or has been of any of the orders of nobility, he shall make an express renunciation thereof in the court to which his application is made. Sec. 4, par. 5.
The days upon which final action shall be had on petitions of naturalization shall be fixed by rule of court. Sec. 6.
The court may, in its discretion, upon petition of the applicant and as a part of his naturalization, make a decree changing the name of said alien. Sec. 6.
Any court having jurisdiction to naturalize aliens has jurisdiction of a suit instituted by the United States District Attorney for the purpose of setting aside and canceling a certificate of citizenship on the ground of fraud or that it was illegally procured. Sec. 15.
* No certificate of naturalization shall be issued to a petitioner until after the judge of the court granting naturalization has signed the order to that effect. Nat. Reg. of Oct. 2, 1906.
Whenever any certificate of citizenship shall be set aside or canceled, as herein provided, the court in which such judgment or decree is rendered shall make an order canceling such certificate of citizenship and shall send a certified copy of such order to the Bureau of Immigration and Naturalization; and in case such certificate was not originally issued by the court making such order it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such certificate of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the court to enter the same of record and to cancel such original certificate of citizenship upon the records and to notify the Bureau of Immigration and Naturalization of such cancellation.
The provisions of this section shall apply not only to certificates of citizenship issued under the provisions of this act, but to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws.
Courts having jurisdiction of the offense of procuring naturalization in violation of the Act of 1906 are authorized to adjudge and declare void the final order admitting to citizenship a person convicted of such offense. Sec. 23.
Renunciation of Citizenship by Foreign-born Widow of
American Citizen. A new function of courts of naturalization is conferred by the Act of March 2, 1907, which authorizes such courts to receive the renunciation made by the foreign-born widow of a citizen of the United States of the citizenship acquired by her marriage. The law reads:
“Sec. 4. That any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such mar tal relation."
6. Clerks of Courts.
Duties: a. As to Declaration of Intention.
It shall be the duty of the clerk of any court authorized to naturalize aliens to receive declarations of intentions of aliens.* Sec. 4, par. 1, and to keep and file a duplicate of each declaration made before him. Sec. 12.
By the express terms of the Act of June 29, 1906, an alien's declaration of intention may be made before the "authorized deputy" of the clerk. Sec. 4, par. 1. And prior to the passage of that act it was held that the actual work of the clerk might be performed by a deputy acting for the clerk. State v. Hoeflinger, 35 Wis. 393. See, also, Sec. 21, Act of 1906, which specifically refers to the "authorized deputy or assistant" of the clerk.
*The declarations of intention shall be bound in chronological order in separate volumes, indexed, consecutively numbered, and made a part of the recorils of the court. Sec. 14, Act of June 29, 1906. Declarations of intention will be furnished in bound volumes, as a court record, varying in size according to the amount of such business transacted by the court. In addition to the bound records, the duplicate and triplicate declarations of intention will be furnished as loose sheets attached together and perforated, so that they can be readily torn apart, the triplicate to be given to the petitioner and the duplicate to be forwarded to the Bureau of Immigration and Naturalization (Division of Naturali. zation). Each bound record will consist of the original declarations of intention, paged in consecutive order and indexed. These volumes are to be numbered and will form a permanent record of the court. Nat. Reg. of Oct. 2, 1906.
In In re Dean, 83 Me. 489, the court decided that the recorder of a municipal court was a clerk within the meaning of the naturalization statute (R. S. 2165). The court said:
"The court must have a clerk distinct from the judge, not necessarily an officer denominated clerk, but a permanent ‘recording officer charged with the duty of keeping a true record of its doings and afterwards of authenticating them.'
The court contemplated by the Act of Congress has an organized existence; it is impersonal; the judge is one of the constituent parts of the organization; the clerk is another and a separate and an independent element. The essential function of the clerk is to make and keep the records and give them legal verification by his attestation and the use of the seal.
“By those sections of the Act establishing the municipal court of Biddeford above quoted the responsible duty of making and keeping the records of the court is imposed upon the judge and not upon the recorder. There is no duty of making and keeping the records imposed upon the recorder by law. He is to keep the records of the court only when requested so to do by the judge. Furthermore, the recorder of this court can not authenticate by his attestation any copies of records ‘made and kept by the judge, or kept by himself at the request of the judge. Only such copies of the records as are 'duly certified by the judge shall be legal evidence in all courts.' The authority to appoint a recorder was conferred upon the judge, not for the purpose of creating a fixed and permanent clerical office distinct and separate from that of the judge, but primarily to provide for the judge a substitute who should be empowered to act in