state, or sovereignty of which the alien may at the citizens of the United States and of the States time be a citizen or subject. Second. He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state or sovereignty of which he was before a citizen or subject, which proceeding shall be recorded by the clerk of the court. Third. It shall be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the State or territory where such court is at the time held, one year at least; and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence. By the act of February 1, 1876, the declaration of intention of the alien was allowed to be made to the clerk of any of the courts enumerated in the first clause. "It has been contended," says Chief Justice Marshall, "that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they effect the object and each other like equal opposing forces. But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy, not only of itself, but of the laws made in pursuance thereof. The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is supreme. When the federal government has acted he says: "In every such case the act of Congress or the treaty is supreme; and the laws of the State, though enacted in the exercise of powers not controverted, must yield to it." In the case of Cooley v. The Board of Wardens, 12 Howard, 299, the contention being made that State statutes in reference to questions delegated to the Congress, and which had not been acted upon by the Federal Legislature, were valid, the court said that "whatever subjects of this power are in their nature national, or admit of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress," and when we reflect that under the provisions of the fourteenth amendment "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are wherein they reside," it must be apparent that the "uniform rule of naturalization" comes within the definition of the court, and that the action of the Legislature of the State of New York, in prescribing other conditions, is an usurpation of power which cannot be tolerated by the people. Chief Justice Taney, in delivering the opinion of the court in the case of Thurlow v. Massachesetts, 5 Howard, 585, says: "And in the case of Chirac v. Chirac, 2 Wheaton, 269, which arose under the grant of power to establish an uniform rule of naturalization, where the court speak of the power of Congress as exclusive, they are evidently merely sanctioning the agreement of counsel stated in the preceding sentence, which placed thein validity of the naturalization under the law of Maryland, not solely upon the grant of power in the Constitution, but insisted that the Maryland law was "virtually repealed by the Constitution of the United States, and the act of naturalization enacted by Congress." Undoubtedly it was so repealed, and the opposing consel in the case did not dispute it. For the law of the United States covered every part of the Union, and there could not, therefore, by possibility be a State law which did not come in conflict with it. And, indeed, in this case it might well have been doubted whether the grant in the Constitution itself did not abrogate the power of the States, inasmuch as the Constitution also provided that the citizens of each State should be entitled to all the privileges and immunities of citizens in the several States; and it would seem to be hardly consistent with the provisions to allow any one State, after the adoption of the Constitution, to exercise a power, which, if operated at all, must operate beyond the territory of the State, and compel other States to acknowledge as citizens those whom it might not be willing to receive. The first Constitution of the State of New York, which became operative in 1777, before the adoption of the Federal Constitution, provided: “And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine and declare that it shall be in the discretion of the Legislature to naturalize all such persons, and in such manner, as they shall think proper," and the statutes of the United States recognized such rights of citizens naturalized by the States before any law had been passed by the Congress upon the subject. There was, however, no contamination of the power to naturalize in the Constitution of 1801, the Congress of 1793 having assumed the duty of prescribing "an uniform rule of naturalization," which was conceded by the people to take that power from the State. In the case of Chirac v. Chirac, quoted above, Chief Justice Marshall said: "The proposition that the power of naturalization is exclusively in Congress does not seem to be, and ought certainly not to be controverted." Vice-Chancellor Sanford (Sandford's Chancery Reports, 584), discussing the Chirac and other cases, says that "the authors of the Federalist insisted that the power of naturalization must necessarily be exclusive, else there could be no uniform rule. And it seems to be conceded on all hands that it is." This view is held by Chief Justice Taney in the Dred Scott case, 19 How. 405, where he says that "the Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so." we the power to direct the States in what manner and according to what rules they shall naturalize." This case was passed upon in California by a local court in 1854. Three years later Judge Hoffman, of the Supreme Court of New York, in the case of William Ramsden, who asked to be naturalized as a citizen of the United States, in commenting upon the California case, said: "But, with the utmost respect for the learned court, it appears to me there is an important error in the doctrine of the case. In the first place, I apprehend that the power conferred by the Constitution is of a class which leaves authority within the States until Congress exercises the delegated rights; and when so exercised, the act of Congress becomes necessarily exclusive. Such, I understand, is the received construction of the clause as to the establishment of uniform bankrupt laws. "It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the States." Chief Justice Marshall, 4 Wheaton, 196. The only question which has ever arisen in respect to the absolute control of this question by the Congress, which has any sort of judicial sanction, is whether the Congress had the power to confer jurisdiction upon the State courts; whether, in the absence of the sanction of the State Legislature, the State courts could be compelled to accept jurisdiction. This is hinted at in the opinion of Mr. Justice Story in the case of Prigg v. The Commonwealth of Pennsylvania, in which he goes out of his way to express an opinion, where he says that " hold the act to be clearly constitutional in all its leading provisions; and, indeed, with the exception of that part which confers authority upon the State magistrates to be free from reasonable doubt. As to the authority so conferred on State magistrates, while a difference of opinion has existed, and may exist still on the point in different States, whether State magistrates are bound to act under it, none is entertained by this court, that such mag-ereign capacity having dropped from its Constituistrates may, if they choose, exercise that authority unless prohibited by the State Legislature." In the case of Knowles, ex parte, American Law Register, August, 1856, the court held that the power to naturalize is a judicial power; that Congress had no authority to confer jurisdiction upon the courts of the States; that the Constitution gives no such power; that it expressly declares that the judicial power shall be vested in the Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish; that the Constitution, having thus fixed where the judicial power shall be vested, it cannot be vested elsewhere; that the States had originally the power to naturalize; that the provisions of the Constitution giving the power to Congress to establish an uniform rule of naturalization did not exclude the States from naturalizing, although they must follow in doing so any rule prescribed by Congress; that the power is not given to Congress at all, but only "In the next place, it appears to me that the power conferred is a power over the whole subject -a power exclusively to constitute citizens—not merely a power to prescribe how the States shall do so. To establish a rule of naturalization is to declare how aliens shall become citizens. It involves the whole power of effecting the object, as well as all details of its exercise. When, then, the people of the United States have said that Congress shall have that power, and Congress exercises it, the right to accomplish it in any other mode, or by any other body, is superceded." The authorities all agree (and the State in its sov tion all reference to naturalization upon the Congress having exercised the power granted in the Federal Constitution, it must be understood to have shared in that opinion) that the power of Congress to prescribe the rules of naturalization is exclusive, and the action of the Legislature in passing the statute of 1895 was wholly unwarranted, and it is null and void. "An uniform rule of naturalization" precludes the possibility of adding new conditions by any of the States, and, as every man who has in good faith resided in the United States for a period of five years, with the bona fide intention of becoming a citizen, has a natural right to participate in the coming election, and as this is practically impossible under the operation of the so-called law, it should either be repealed at once or a test case should be made, allowing the courts an opportunity to set the seal of their disapprobation upon the unauthorized action of the Legislature. BEN S. DEAN. JAMESTOWN, N. Y., Nov. 20, 1895. ANOTHER OBJECTION. ADVERSE NEWSPAPER CRITICISM AS AFFECTING THE PROCEEDINGS AT THE TRIAL OF A CRIMINAL CASE, WITH SOME DISCUSSION, INTER ÁLIA, AS TOUCHING THE FREEDOM OF THE PRESS. Judgments ought to be contentful; for interest Republica ut sit finis litium. The legend is as true now as in the days of the Roman republic; now, as then, it is for the interest of the republic that there be an end to litigation; and now, as then, that interest is best manifested when judgment is contentful. This is so peculiarly with respect to the peo- | ple's business, especially in the administration of the law in the courts of criminal jurisdiction. A question upon which A. and B. have differed whether the one owes the other five hundred dollars and ought to pay it, which they have brought into the forum for judgment--is of individual concern, is a private and personal affair in which public interest is casual only-going no further than that judgment be awarded freely and without favor; but if A. afterwards slay B. without apparent justification, the people are and have the right to be keenly interested in the determination of the question of guilt or innocence. The social compact demonstrates it. When the avenger of blood surrendered his personal right of redress to society, society guaranted in exchange that it would formally inquire into the matter and provide that justice be done with certainty and speed. Since that day, man, the person, has been keenly interested in the administration of the law by society, represented by the State, and sometimes when justice has not been awarded either with certainty or speed, he has been heard to complain, In 1889, David Dudley Field said, in addressing the American Bar Association, of which he was at that time the president: "So far as I am aware, there is no other country calling itself civilized where it is so difficult to convict and punish a criminal, and where it takes so many years to get a decision between man and man. Truly may we say, that justice passes through the land on leaden sandals." Judge Elliott Anthony, president of the Illinois Bar Association, at its 18th annual meeting at Springfield, Ill., on January 24th and 25th of this year, spoke to the same effect. He said: "The great effort seems to be to involve every investigation of crime in a network of subtleties, artificial distinctions and downright quibbles, shut out all the incriminating evidence possible, then decide every case on some technicality. There is dissatisfaction everywhere throughout the country in regard to the methods adopted and the course pursued by our courts in dealing with the violators of the law, and it is but little wonder that people in some of the older portions of the republic have at times become exasperated at the trifling and juggling which are allowed, and have wreaked summary vengeance on thugs and assassins, to the disgrace of civilization and the age in which we live. to A fair jury have convicted Durrant of murder, and it is said there is no hook to hang a doubt upon in the entire record. It is assumed that the case will go to the Supreme Court and the anxious inquiry is: What will that body do with it? Undoubtedly affirm the judgment, there being no error in the record, is the manifest answer. "Yes," persists the inquirer, not yet satisfied, "but the prisoner's counsel urge that he did not have a fair trial because the newspapers of the city, during the progress of the trial, published the testimony in the case and commented upon it in such wise that one who read the papers would probably infer that the editors and publishers already believed the prisoner guilty." That arrests the attention and deserves consideration. In passing, however, one should be minded that the trial judge throughout the trial, carefully admonished the jurors against reading any newspaper comments upon the case. Of course the presumption must be that the jury heeded that admonition. Ought a new trial be granted because the newspapers have clamored against the accused when it cannot be truly said but may only be surmised that such clamor has affected the verdict of the jury? There was newspaper "clamor" in the Goldenson case (76 Cal. 328), both before and during the trial, which was animadverted upon by the prisoner's counsel, but there appeared to be no error in the record and the judgment was affirmed. The result must be the same in the Durrant case if there is no error in the record. Remembering that the newspapers of San Francisco, as being metropolitan in character, circulate in all the counties of the State, would it not be difficult to select a county in the State where the jury men could not have an opportunity to read the San Francisco newspapers if they desired to do so? Can it be assumed, further, that in that wished for happy land to which the San Francisco newspaper has not yet gained access, and where, for that reason, the prisoner in question could have a fair trial, the local newspapers, well knowing that the case had been tranferred to their midst for the very reason stated, would carefully refrain from commenting upon the case in any of its features? Do editors and publishers differ in genus, or only in species? And if the local papers of that wished for happy land to which the San Francisco newspapers have not yet gained access and where, for that reason, the prisoner in question could have a fair trial, were to comment upon the case, can it be assumed that their comments would be wholly in the prisoner's favor and for that reason be unobjectionable? - the judicial understanding of the word "error" being that it is something that makes against the righteousness of the accused, and in favor of the people who for the purposes of that system of logic are indisputably presumed to be wicked, and heartless, and bloodthirsty? There is a well-defined impression in some quarters that the principal purpose of the criminal courts is to procure the public justification of those who are suspected (?) of something or other whose sins, if any, are venial and not mortal by any means, dear no and against whom the most that can be said is, that they may have done the right thing the wrong The salutation of counsel for the prisoner and the response of the jury are to be read together: way. Salutation : Pax vobiscum. In those quarters, the real usefulness of such courts is deemed to consist in this :-that they are enabled, by reason of certain forms of procedure, peculiar to them, to patch up the reputations of certain innocents whose misfortune it has theretofore been to be suspected of wrongdoing by certain maladroit officers of the law, in consequence whereof they have been haled in the forum. It is supposed that by the procedure noted the aforesaid innocents will be discharged, cleansed and purified. If a new trial must be awarded in the Durrant case because of newspaper comment, then it follows that the newspapers have no right to comment upon a case in any manner during the progress of a trial; and that if such comment is made, and it is deemed to be injurious, new trials must be awarded, ad infinitum. That sounds startling. If that is the state of the law, what is to prevent an accused person from controlling newspaper sentiment against himself, and so escape conviction altogether? If that is the state of the law, this is the logic of the situation: If newspapers comment upon the evidence in any criminal case during the progress of the trial, and such comment is not distinctly favorable to the accused, then such comment must be indisputably presumed injurious to the accused unless cured by an admonition of the court. However, if it were shown that the admonition was not in fact observed then the injury would be manifest, and a new trial would have to be awarded. This would render it impossible to try criminal cases -would utterly paralyze public justice, unless the newspapers could, by process of law, be prevented from making such comment. Can the newspapers be restrained or punished in such instances? No. Our Constitution provides that "every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." (Const. Art. 1, sec. 9.) Only when the liberty of the press becomes unbridled license, will the strong arm of the law be extended in restraint, or punishment. If a newspaper were to threaten a judge if judgment should not be awarded in an indicated manner and form, or the jury if their verdict should not as to certain issues be so and so, undoubtedly the court would and ought to punish as justice should go without fear or favor; but the judge who should attempt to prevent a newspaper from making fair comments upon the evidence, or upon any matter pertaining to the trial during the progress of the trial, would be unworthy his place. Any such fair comment is entirely within the constitutional guarantee and cannot be punished or restrained. (In re Shortridge, 99 Cal. 526.) This being true, and it seems to be upon all fair reasoning, then, if the editors and publishers of a newspaper, during the progress of the trial of a criminal case, become satisfied of the prisoner's guilt, and in their paper comment upon the evidence to that effect, who shall say them nay? If the editors and publishers of a newspaper, during the progress of the trial of a criminal case, become satisfied from the evidence that the prisoner is guilty and comment to that effect in their paper every citizen having constitutional authority "to write and publish his sentiments on all subjects," and there being no authority anywhere to "abridge the liberty of speech or of the press"-can such comment, in any legal sense, be deemed unfair and therefore prejudicial to the prisoner? If it can be the outlook is hopeless, for the right to make such comment is clear. The newspapers having the right to make such comment may exercise it at all times, and that being so the exercise of the right cannot be deemed to work error in judicial proceedings. No judicial interpretation or declaration of the law would for a moment be tolerable which would put a stop to judicial proceedings. It may be that good taste and fair dealing would upon moral considerations, forbid any such comment, but the question is not of that it is of the right, and of the legal consequences following its exercise. It may chance that in England, and Germany, and France, and other States of the world any comment upon the evidence during the progress of a trial would not be permit ted the question, however, does not turn upon the administration of their laws, but of our own. To say that the press has too much freedom is to beg the question. Whatever freedom it possesses is what has been given by the supreme power. republic, that is the pepole; and the limitation upon the exercise of the freedom, or privilege, is indicated in the fundamental law. If the limitation upon the liberty of the press is deemed inadequate, the rem - In a edy lies at the foundation. But, to quote Judge NOMINUS UMBRA. SAN FRANCISCO, November 14, 1895. DISCRETIONARY INVESTMENTS. under these circumstances by beneficiaries under the will against the surviving trustee and the executors of the dead trustee, for the purpose of making them jointly and severally liable for the loss sustained. Mr. Justice Kekewich held that the unlimited powers of investment indicated by the words as they should think fit," should be construed as implying "as they should honestly think fit." He accordingly held that the dead trustee's estate was not liable to make good any part of the loss, inasmuch as he had acted in good faith, and with an honest desire to increase his income by legitimate means; but that the surviving trustee having received a bribe could not be considered to have made the investment honestly, and was consequently liable to make good the loss. It was further he'd that, in addition to replacing the sum invested, he must refund to the trust the £300 received by him as commission, on the well-established principle that a trustee must not make any personal gain out of the trust. Re Brown; Brown v. Brown (52 L. T. Rep. 853; 29 Ch. Div. 889), was another case in which investment was authorized by trustees "in such mode or modes as they in their uncontrolled discretion 冰 * * should think proper." The funds were invested partly in Turkish and Portuguese bonds, and partly in bonds of the city bank and a foreign railway company. The chief clerk, in taking the accounts of the testator's estate, disallowed the trustees the sum invested on the ground that the investments were unauthorized. The trustees accordingly took out a summons to vary the certificate, and Mr. Justice Pearson refused to hold the trustees personally responsible, inasmuch as the terms of the power were very wide, the trustees had acted bona fides, and there had been no loss to the estate. Justices Pearson and Kekewich in these cases agree in recognizing that, however wide the powers of investment may be, an absence of bona fides will be sufficient to make trustees liable for loss occasioned by their action. The attention of trustees might well be directed to the case of Re Smith; Smith v. Thompson (W. N. 1895, p. 144. 15), for it contains in a small compass indications of the point of view from which the courts look upon the relations subsisting between the trustee and his trust. The chief importance of the decision lies, however, in the construction which the courts place upon apparently untrammeled powers of investment. The case in question came before Mr. Justice Kekewich on the Again, it is clear that, although the powers of in9th ult. A testator gave his residue to his trustees vestment are extensive, they will not justify the upon trust to invest in such stocks, funds, and funds being placed in securities of a non-permanent securities as they should think fit." One of the two character. This is well shown by the case of Stewtrustees was a beneficiary to the extent of being art v. Sanderson (22 L. T. Rep. 10; L. Rep. 10 Eq. tenant for life of two-thirds of the residue, and 26), where a portion of the trust moneys was inwas, naturally enough, desirious of obtaining in- vested in the preference and guaranteed stocks of vestments which would return some substantial rate certain Scotch railways bearing interest at 7 and 4 of interest. The other trustee, without his col- per cent. The securities having depreciated severely, league's knowledge, received a douceur of £300 Vice-Chancellor Malins held that ample powers of from the New Travellers' Club, Limited, in order investment do not warrant trustees putting money to induce him to effect the investment with them. into securities of any other than permanent characAccordingly, an investment was made of £3,000 inter, and in the absence of evidence to the contrary the club debentures, and shortly afterwards the it was assumed by the learned judge that the high beneficiary trustee died. The action was brought rate of interest betokened that the investments were |