it is proper that the legislature of the nation should prescribe the methods by which those who are not naturally so, so by birth, may be clothed with the qualities and capacities of citizenship. And, moreover, it is of the highest importance that these modes should be uniform, the same in all sections of the country; otherwise one state or region might obtain great and unfair advantages over another by inducements held out to foreigners in easier measures of naturalization and shorter times of probation.

Naturalization is, in fact, the conferring the status of citizenship upon those who do not acquire that status by their birth. According to the Common Law, all free persons, born within the limits of the country, are, with some unimportant excep tions, citizens. Immigrating to a country, and residing therein permanently, did not, at the Common Law, destroy the incapacities of alienage, and change a person from an alien into a citizen. Naturalization alone works this change; it makes a person "natural"; leaves him, when the transformation is wrought, as though he were a citizen by nature. It was for these reasons that the Constitution conferred upon Congress the authority to establish rules of naturalization, which must, however, be uniform.

§ 387. The first question to be considered is, whether this power is absolutely exclusive in the United States, or whether it is enjoyed by the states concurrently. As was stated in Section III. of this chapter, there may be three alternatives, and these exhaust all possible cases. (1.) A power may be exclusively vested in Congress by the very terms of the grant, so that the states have no authority to pass laws touching the subject-matter, whether Congress has acted or not; or (2) the power may become exclusive by Congress acting thereunder; so that the states are forbidden to legislate after Congress has legislated; although, while the latter body continues. silent, the states may respectively act; or (3) the power may be so concurrent that the states may exercise it, though the national legislature has also proceeded under the grant made to it in the Constitution.

It is plain that the power in question falls under the first of

these alternatives; that it is exclusive in Congress; that ▾ states can pass no naturalization laws even if Congress should fail to exercise its function. The nature of the power points to this conclusion; it is national in its very essence; it is a matter with which the states can have no concern; United States citizenship is as much beyond their control as British or French citizenship.

§ 388. The decisions of the Supreme Court have established this doctrine; and the people, the political parties, the theorists, and the state legislatures have so far acquiesced, that no attempt has been made to alter or even question the construction. It is true that, soon after the adoption of the Constitution, the Supreme Court did not speak in so national a manner. In 1792 the case of Collet v. Collet was decided, which drew in question the citizenship of a person naturalized under a Pennsylvania statute passed before the adoption of the Constitution. The court in a hasty manner expressed an opinion that the power to naturalize was concurrent; but they overlooked the fact that this law was enacted during the Confederation. Subsequently (1797), in the case of United States v. Villate,2 the court decided this same Pennsylvania statute to be obsolete and void, and a person naturalized under it not a citizen; but they did not consider the general question whether states might now pass such laws. In Chirac v. Chirac,3 it was finally and definitely held that the power to naturalize is exclusively in Congress.

§ 389. In the case of Houston v. Moore, Mr. Justice Story laid down general rules which are often quoted, but which, in fact, afford little aid in determining whether a particular legislative power be exclusive or concurrent.

He says:

"It is

not to be admitted that a mere grant of powers in affirmative terms to Congress, does per se transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states, unless (1) where 1 2 Dall. 294. 82 Wheat. 259.

2 Ibid. 370.

4 5 Ibid. 49.

the Constitution has expressly in terms given an exclusive power to Congress; or (2) where the exercise of a like power is prohibited to the states; or (3) where there is a direct repugnancy or incompatibility in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dockyards, etc.; of the second class, the prohibition of a state to coin money, or emit bills of credit; of the third class, as this court has already held, the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction." In the great case of Ogden v. Saunders, Mr. Justice Johnson remarks: "Our foreign intercourse being exclusively committed to the general government, it is peculiarly their province to determine who are entitled to the privileges of American citizens and the protection of the American Government."

§ 390. While it is settled, then, upon principle, authority, and continuous practice, that the Congress of the United States has exclusive authority to make rules for naturalization, it must not be understood that the states are deprived of all jurisdiction to legislate respecting the rights and duties of aliens. They may permit or forbid persons of alien birth to hold, acquire, or transmit property; to vote at state or national elections, etc. These capacities do not belong to United States citizenship as such. Congress would transgress its powers were it to assume to make rules upon these subjects. Citizenship of the United States implies and carries with it protection at home and abroad, as will be more particularly shown in a subsequent chapter.

The power to pass rules for naturalization has been exerted by Congress from the earliest period of its existence but of the nature and provisions of the several statutes from time to time passed by that body, we are not called upon to speak.

1 12 Wheat. 277.

SECTION V.

THE POWER TO ENACT BANKRUPT LAWS.

§ 391. The next grant of power is made in the following language: "Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States."

In considering this subject there are, as in so many other instances, two general questions to be examined, namely: (1.) The nature of the power, or, how far, if at all, may the several states exercise it; and (2) its extent, or what laws may Congress pass by virtue thereof.

I. The Nature of the Power; is it exclusively in Congress, or held also by the States?

§ 392. The question thus proposed has been so unmistakably answered by the Supreme Court; and the decisions of that tribunal have stood so unquestioned by the partisans of every theory of constitutional interpretation; and the practice of the states in accordance with these judgments has been so uniform, that I only need refer to the cases in which the rule is established, without entering into any extended statement of the reasoning upon which it is founded.

The first and leading case was Sturges v. Crowningshield 1 (1819). This case drew in question an act of the New York legislature passed in 1811, which had the effect, under certain circumstances, to discharge a debtor from his debts. The contention was, that this statute violated the Constitution in two particulars: (1) because a state has no power to pass bankrupt laws; and (2) because it impaired the obligation of contracts. The court passed upon both these objections; but we have now occasion to refer only to the first. It appeared that there was no bankrupt law of Congress in operation, although at a former time there had been such a statute in existence. C. J. Marshall delivered the opinion, in which he said: 2 "The principle laid down by the counsel for the plaintiff is

1 4 Wheat. 122.

2 Ibid. 193.

undoubtedly correct.

Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act upon it. Is the power to establish uniform laws on the subject of bankruptcies throughout the United States of this description?" The Chief Justice then proceeded to answer this question, and came to the conclusion that states may enact such laws, provided there be no existing national legislation on the same subject. He then proceeded: "It has been said that Congress has exercised this power; and by doing so has extinguished the power of the states, which cannot be revived by repealing the law of Congress. We do not think so. If the right of the states to pass a bankrupt law is not taken away by the mere grant of that power to Congress, it cannot be extinguished; it can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer that power upon the states; but it removes a disability to its exercise which was created by the act of Congress." From this opinion there was no dissent.

In the subsequent case of Ogden v. Saunders, the rule laid down in Sturges v. Crowningshield was reaffirmed, and may now be considered as one of the points fully established in our public law. The construction given to the power over bankruptcies, is identical with that applied to the regulation of commerce. These two cases were remarkable for the learning and ability displayed upon the question how far state bankrupt and insolvent laws impair the obligation of contracts, and are therefore obnoxious to a prohibitory clause of the Constitution. They will be referred to again in that connection.

II. The Extent of the Power; or what Laws may Congress pass by Virtue thereof?

§ 393. It should be carefully noticed that the Constitution employs general and somewhat peculiar language. It does

14 Wheat. 196.

2 12 Ibid. 213.