Argument for Defendant in Error.

of the respondent. The opinions will be found reported, in advance of the official series, in 48 N. W. Rep. 739. A writ of error was thereupon sued out from this court.

Mr. James C. Cowin, Mr. Henry D. Estabrook and Mr. A. H. Garland for plaintiff in error.

Mr. John F. Dillon and Mr. John L. Webster (with whom was Mr. Joseph H. Blair on the brief) for defendant in

error.

James E. Boyd, the plaintiff in error, had not been for two years next preceding his election a citizen of the United States, and hence under the Constitution of the State he was not eligi ble to the office of governor. He was not a citizen of the United States even at the date of the election. He was fiftysix years of age at the date of the naturalization of his father. Personally, he never made any application to be naturalized as a citizen of the United States until the 16th day of December, 1890, which was after the date of the election at which a plurality of votes was cast for him for the office of governor of the State of Nebraska.

I. He cannot claim to have become a citizen of the United States under the provisions of Section 2172 of the Revised Statutes of the United States, for the reason that he was not under twenty-one years of age at the date of the naturalization of his father. To bring him within the provisions of that section (which is the act of April 14, 1802) he must have been "under the age of twenty-one years at the time of the naturalization of his father." Campbell v. Gordon, 6 Cranch, 176; Gumm v. Hubbard, 97 Missouri, 311; State v. Penney, 10 Arkansas, 621; O'Connor v. The State, 9 Florida, 215; United States v. Kellar, 13 Fed. Rep. 82.

II. The facts pleaded in the answer to the effect that James E. Boyd had exercised the elective franchise in Nebraska for a great many years and that he had held office as a member of the legislature, as a member of the constitutional convention. and as mayor of the city of Omaha did not make him a citizen of the United States.

Argument for Defendant in Error.

It may be true that James E. Boyd believed himself during all those years to have been a citizen of the United States, but that is immaterial. Aliens can only become American citizens through the process of naturalization. It will not do to permit the argument to prevail, that he should be adjudged to be a citizen of the United States, simply because the people of Nebraska, through ignorance of his alienage, permitted him to vote and hold office.

The case of Dryden v. Swinburne, 20 West Va. 89, is on all fours with this case. In that case section 2172 of the Revised Statutes was construed, and it was held that a naturalization order cannot be made retroactive; that naturalization cannot be presumed from taking a conveyance of land, voting and exercising other rights of citizenship; that an order admitting to citizenship rebuts the presumption of any previous naturalization; that parol evidence was not competent to prove the fact of naturalization; that section 2172, Rev. Stat. was but the act of 1802 continued in force, and that it was not the purpose of Congress by that section to modify or change the law as expressed in the old statute; and that the word "now" as used in the Revised Statutes has reference to the year 1802, when these provisions first became law.

This question has been twice before the legislative department of the government.

Albert Gallatin was born in Switzerland in 1761, and came to the United States in 1780. In the year 1783 he went to Virginia, and in the month of October, 1785, he took the oath of allegiance in that State. In December, 1785, he removed to Pennsylvania, where he purchased land and became a permanent resident. He was elected in 1789 a member of the convention which was called to amend the constitution of the State of Pennsylvania, and subsequently he was for three successive years elected a member of the Pennsylvania legislature. In February, 1793, he was elected a senator from Pennsylvania, and he came to the Senate and took his seat in the December following.

It appears that from the time he took his oath of allegiance in Virginia, in 1785, to the period of his election as senator,

Argument for Defendant in Error.

in 1793, he had not been a citizen of the United States for the time required by the Constitution, which is nine years.

The committee appointed to investigate the case made their report to the Senate, setting forth the foregoing fact. Upon the coming in of the report of the committee, a resolution was offered in these words:

"Resolved, That Albert Gallatin, returned to this House as a member from the State of Pennsylvania, is duly qualified for and elected to a seat in the Senate of the United States." This resolution was rejected by a vote of fourteen nays to twelve yeas. The record then proceeds as follows:

"A resolution was then offered in these words:

"Resolved, That the election of Albert Gallatin to be a senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a senator of the United States.

"A motion was made to divide the question at the word void; and

"On motion to agree to the first paragraph on the motion so divided, it passed in the affirmative: Yeas 14, nays 12. "On motion to adopt the resolution, as follows:

"Resolved, That the election of Albert Gallatin to be a senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a senator of the United States.

"The vote was: ayes 14, noes 12; and so the resolution was carried."

General Shields was elected a United States senator from the State of Illinois on the 13th day of January, 1849. He was an alien by birth. He was naturalized in the Circuit Court of Effingham County on the 21st of October, 1840. He took his seat as United States senator on the 4th of March, 1849, when his seat was contested upon the ground that he had not been a citizen of the United States the term of nine years required as a qualification to be a senator of the United States. He had resided in the State of Illinois seventeen years. He had held a number of public offices. He had been a member of the legislature, which required naturalization.

Argument for Defendant in Error.

He had held the office of Auditor of Public Accounts, which required naturalization. He had been a Judge of the Supreme Court of Illinois, which required naturalization. He had been Commissioner of the General Land Office. He had been a General in the United States army, and lastly had been elected United States senator.

The question of his eligibility was referred to a committee which, on the 13th of March, 1849, reported, and the Senate, after a short discussion, resolved "that the election of James Shields to be a senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a senator of the United States at the commencement of the term for which he was elected."

III. The fact that Boyd was an inhabitant of the Territory of Nebraska at the time when Nebraska was admitted into the Union as a State did not have the effect of making him (he then being an alien) a citizen of the United States.

The question for consideration is whether the admission of Nebraska as a State into the Union, on an equal footing with the original States, as provided in the enabling act and the act of 1867, made all inhabitants thereof including aliens ipso facto citizens of the United States.

Similar or the same language is found in the enabling acts by which the various Territories were authorized to form state governments in order to be admitted into the Union of States.

It will be observed by an examination of the enabling act of Nebraska, as also of various other enabling acts, that it contains no provision touching the rights, privileges and immunities of the inhabitants, upon the State coming into the Union. The silence of the enabling acts on this subject is here very important. The inhabitants of these Territories were living within the jurisdiction of the United States, were subject to the jurisdiction of the United States, and were already citizens of the United States except such as were aliens. Those inhabitants who were citizens of the United States were none the less citizens by reason of the fact that they were inhabitants of the Territories.

Citizens of the United States do not lose their citizenship by

Argument for Defendant in Error.

changing their residence from a State to a Territory. Citizens of the United States residing in the District of Columbia and in the Territories are such citizens to the same extent that they would be if residing in one of the States. Prentiss V. Brennan, 2 Blatchford, 162; Picquet v. Swan, 5 Mason, 35.

It would not be unfair to state that about as large a relative proportion of the inhabitants of the Territory were citizens of the United States as of the inhabitants of any of the States of the Union. There was no occasion, therefore, for Congress to intend the admission of the State into the Union as an act of collective naturalization. There was no more urgency or necessity for such a collective act of naturalization for this Territory than there would be to pass a collective act of naturalization for aliens residing within a State. If Congress had ever intended the admission of States into the Union formed under the various enabling acts to operate as a naturalization of all aliens residing therein, it would doubtless have been so provided in the act itself, in unmistakable terms.

The language of the enabling act has no reference to the status of the inhabitants of the original States when they came into the Union, any more than it can be said to have reference to the footing or relative rights of the original States at the time when they formed the Union of States. Indeed, it is self-evident that no Territory can now be admitted into the Union as a State with all the rights and privileges which were possessed by the original States when they came into the Union.

The view which we have expressed to the effect that the inhabitants of the Territory did not become citizens of the United States by the admission of such Territory as a. State into the Union, is expressly held to be sound in The State v. Primrose, 3 Alabama, 546. This case is referred to in the opinion of the Supreme Court of Nebraska. We are aware of two earlier cases in Louisiana which seem to announce a contrary view, but we cannot accept them as applicable as the circumstances and legislative provisions were essentially different.

The third section of the Treaty of Paris of 1803 speaks solely of the "inhabitants" of the ceded Territory. It says