way the most stringent enactments may be easily evaded. It is a just and well-settled doctrine established by this court," that a State cannot do that indirectly which she is forbidden by the Constitution to do directly." If she cannot levy a duty or tax from the master or owner of the vessel engaged in commerce, graduated on the tonnage or admeasurement of the vessel, she cannot effect the same purpose by merely changing the ratio, and graduating it on the number of masts, or of mariners, the size and power of the steam-engine, or the number of passengers which she carries. We have to deal with things, and we cannot change them by changing their names. Can a State levy a duty on vessels engaged in commerce and not owned by her citizens, by changing its name from a " duty on tonnage❞ to a tax on the master, or an impost upon imports, by calling it a charge on the owner or supercargo, and justify this evasion of a great principle by producing a dictionary or a dictum to prove that a ship-captain is not a vessel, nor a supercargo an import?

CHAPTER XIII.

COLONIAL NATURALIZATION LAWS.

BEFORE the adoption of the Constitution of the United States, the power of naturalization resided in the several States. In Pennsylvania, the British statute of 13th Geo. II., ch. 7, furnished the general rule for naturalizing such foreign Protestants, and others therein mentioned, as were settled or should settle in the then colonies of America. An act was passed, however, by the Legislature of the colony, on the 3d February, 1742, "for naturalizing such foreign Protestants as are settled or shall settle within this province, who not being of the people called Quakers, do conscientiously refuse the taking of an oath." This act provided as follows:

"All persons being Protestants, born out of the legience of our present sovereign, King George the Second, his heirs and successors, who shall conscientiously refuse an oath, and have inhabited and resided, or shall inhabit or reside, for the space of seven years or more within this province, and shall not have been absent out of the same, or some other of the colonies, in the said act of Parliament mentioned, for a longer space than two months at any one time, during the said seven years, and shall make and subscribe the declaration of fidelity, and the profession of his Christian belief, and take and affirm the effect of the adjuration oath, before the chief judge, or other judge of the Supreme Court of this province, in such sort, manner and form, as in and by the said act of Parliament is directed to be done and performed by the people called Quakers, shall be deemed, adjudged and taken to be the king's natural born subjects of this province, to all intents." See Dallas' ed., vol. i., Penn. Laws.

After the Declaration of Independence, this law was superseded. The State Constitution, adopted in 1776, contained the following provision:

"Every foreigner of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this State, except that he shall not be capable of being elected a representative until after two years' residence."

The forty-second section of the Constitution of the State of New York, adopted in 1777, authorized the Legislature to naturalize persons; but it expressly thus qualified this power of the Legislature in the following manner:

"Provided all such of the persons so to be by them naturalized, as being born in parts beyond sea, and out of the United States of America, shall come to settle in, and become subjects of this State, shall take an oath of allegiance to this State, and abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State, in all matters, ecclesiastical as well as civil."

This was intended, and so it operated, says Chancellor Kent, in his Commentaries, vol. ii., 73, to exclude from the benefits of naturalization, Roman Catholics who acknowledged the spiritual supremacy of the pope, and it was the result of former fears and prejudices (still alive and active at the commencement of our revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompatible with perfect national independence, or freedom and good order of civil society.

In Virginia, early in the session of May, 1779, Mr. Jefferson prepared and obtained leave to bring in a bill, declaring who should be deemed citizens, asserting the natural right of expatriation, and prescribing the mode of exercising it. This, when he withdrew from the House on the first of June following, he left in the hands of George Mason, and it was passed on the 26th of that month. See Jefferson's Works, vol. i., p. 80, Autobiography. The following were the provisions of the act thus

"An Act declaring who shall be deemed citizens of this Commonwealth. Be it enacted by the General Assembly, That all white persons born within the territory of the Commonwealth, and all who have resided therein two years next before the passing of this act; and all who shall hereafter migrate into the same, other than alien enemies, and shall, before any Court of Record, give satisfactory proof, by their oath or affirmation, that they intend to reside therein; and moreover, shall give assurance of fidelity to the Commonwealth; and all infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any of the United States of America, shall be deemed aliens. The clerk of the court

shall enter such oath of record, and give the person taking the same a certificate thereof for which he shall receive the fee of one dollar."

The State of Maryland, in July, 1779, passed a law on the subject, as follows:

Be it enacted by the General Assembly of Maryland, That EVERY PERSON who shall hereafter come into this State, from any Nation, Kingdom, or State, and shall repeat and subscribe a declaration of his belief in the Christian religion, and take, repeat and subscribe the following oath, to wit: "I do swear that I will hereafter become a subject of the State of Maryland, and will be faithful, and bear true allegiance to said State, and that I do not hold myself bound to yield allegiance or obedience to any King or Prince, or any State or government," shall thereupon and thereafter be adjudged, deemed and taken to be a natural born subject of this State.

In the act of the Legislature of Georgia, passed on the 7th February, 1785, it is provided that an alien may become a citizen, "who hath resided at least twelve months in the same, and, after the expiration thereof, doth obtain from the Grand Jury of the county where he resides, a certificate, purporting that he hath demeaned himself as an honest man, and friend to the government of the State," and upon his having said certificate duly recorded, and taking the oath of allegiance. The third section of the act is as follows:

Provided always, and bc it enacted by the authority aforesaid, That no such person (alien born, thus made a citizen) shall be a member of the General Assembly, or of the Executive Council, or hold any office of trust or profit, or vote for members of the General Assembly, for the term of seven years, and until the Legislature shall, by special act for that purpose, enable such person so to do. And provided also, that all such aliens, or persons aforesaid, shall be subject and liable to pay such alien duties as have been heretofore, or may hereafter be imposed by the Legislature. Sce Watkins' Digest, 302-3.

By the fortieth article of the Constitution of North Carolina, adopted in 1776, it was provided: "That every foreigner who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or, by other just means, acquire, hold, and transfer land, or other real estate; and after one year's residence, shall be deemed a free citizen." In Massachusetts, on the strength of an act passed in 1777, persons born abroad, and coming into that State after 1776, and before 1783, and remaining there voluntarily, were adjudged to be citizens. 2 Pick., 394.

The Supreme Court in Connecticut adopted the same rule without the aid of any statute, and it was held, that a British soldier, who came over with the British army in 1775, and deserted, and came and settled in Connecticut in 1778, and remained there afterwards, became, of course, a citizen, and ceased to be an alien. 5 Day's Rep., 169

CHAPTER XIV.

POLICY DURING THE REVOLUTION.

DURING the Revolution, the Continental Congress established the policy of not employing any but native born citizens in the foreign service of the country. On examining the Journal, there will be found the following resolution, appended to a report made by a committee. consisting of Mr. Jefferson, Mr. Sherman, Mr. Gerry, Mr. Read, and Mr. Williams:

Resolved, That it is inconsistent with the interests of the United States to appoint any person, not a natural born citizen thereof, to the office of minister, charge d'affaires, consul, vice-consul, or to any other civil department in a foreign country, and that a copy of this resolve be transmitted to Messrs. Adams, Franklin, and Jay, ministers of the said States, in Europe."

And the same policy was pursued, as far as practicable, by Washington, as will be seen by the following instructions for the officers of the several regiments of the Massachusetts Bay forces, who were immediately to go upon the Recruiting Service. See Am. Archives, Fourth Series, vol. ii., p. 1630:

Yon are not to enlist any deserter from the ministerial army, or any stroller, negro, or vagabond, or person suspected of being an enemy to the liberty of America, nor any under eighteen years of age.

You are not to enlist any person who is not an American born, unless such person has a wife and family, and is a settled resident in this country.

The persons you enlist must be provided with good and complete arms.

Given at the Head-Quarters, at Cambridge, this 10th day of July, 1775.

HORATIO GATES, Adj. Gen.

Extracts from the original Orderly Book, left by the late Gen. Hand, who was the Adjutant General of the American Army, at the close of the Revolution.

Cambridge Head-Quarters, July 7, 1775.

By his Excellency, George Washington.

GENERAL ORDERS:

Parole, Dorchester, Countersign, Exeter.

The General has great reason, and is displeased with the negligence and inattention of those officers who have placed as sentries at the outpost men with whose characters they are unacquainted. He, therefore, orders that, for the future, no man shall be appointed to those stations who is not A NATIVE of this country; this order is to be considered a standing one, and the officers are to pay obedience to it at their peril. FOX, Adjt. General of the Day.

Head-Quarters, Valley Forge, March 17, 1779. [GENERAL ORDERS.]-One hundred chosen men are to be annexed to the guard of the Commander-in-Chief, for the purpose of forming a corps, to be instructed in the ma nœuvres necessary to be introduced into the army, and serve as models for the execution of them. As the General's Guard is composed of Virginians, the hundred drafts will be taken from the troops of the other States.

Description of the Men: Height, from 5 feet 8 to 5 feet 10 inches; age, from 20 to 30 years; robust constitutions, well-limbed, and formed for activity, and men of established character for sobriety and fidelity. THEY MUST BE AMERICANS BORN.

In Spark's publication of the Washington Papers, there are a number of letters, which disclose the opinion entertained by Washington on the subject, and among which are the following:

Morristown, May 7, 1777.

To Richard Henry Lee: DEAR SIR-I take the liberty to ask you what Congress expects I am to do with the many foreigners that have at different times been promoted to the rank of field officers, and by their last resolve, two to that of Colonels? These men have no attachment for the country, further than interest binds them. Our officers think it exceedingly hard, after they have toiled in the service, and have sustained many losses, to have strangers put over them, whose merit perhaps is not equal to their own, but whose effrontery will take no denial. It is by the zeal and activity of our own people that the cause must be supported, and not by the few hungry adventurers. I am, &c., GEORGE WASHINGTON.

[Vol. IV., p. 423.]

Middlebank, June 1, 1777.

To the Same :--You will, before this can reach you, have seen Monsieur Decoudray; what his real expectations are, I know not; but I fear if his appointment is equal to what I have been told is his expectation, it will be attended with unhappy consequences, to say nothing of the policy of entrusting a department on the execution of which the salvation of the army depends, to a foreigner, who has no other tie to bind him to the interest of the country than honor. I would beg leave to observe, that by putting Mr. D. at the head of the artillery, you will lose a very valuable officer in General Knox, who is a man of great military reading, sound judgment, and clever conceptions, and who will resign if any one is put over him.

I am, &c.

[Vol. IV., p. 446.]

GEORGE WASHINGTON.

White Plains, July 24, 1778.

To Governor Morris, Esq.: DEAR SIR-The design of this is to touch cursorily upon a subject of very great importance to the being of these States; much more so that will appear at first view-I mean the appointment of so many FOREIGNERS to offices of high rank and trust in our service.

The lavish manner in which rank has hitherto been bestowed on these gentlemen, will certainly be productive of one or the other of these two evils, either to make us despicable in the eyes of Europe, or become a means of pouring them in upon us like a torrent, and adding to our present burden.

But it is neither the expense nor the trouble of them I most dread; there is an evil more extensive in its nature and fatal in its consequence to be apprehended, and that