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Page:United States Reports, Volume 2.djvu/379

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Cmcurr Coun, Pemyjdvauia Dil’tri&. 373 raiized under it, having the rights of the old, is in a lituation pre. qw, ferable to a natural born citizen under the accumulative reftraints ~/vv of the new conititution. But a contrary conftrudion has been ' given whenever the point was direétly prefented for contidera. tion (which was not the cafe in Cdlrt 1:. Caller) bythe legitlature, by our courts, and by the bar. Psrrns, _7r¢i:¢. At the time of committing the defendant, ‘ {cme doubts arofe in my mind; which, on account of the im, portancc of the fubjeét, I thought it more proper to fubmit to a folemu difcuilion, than haftily to decide at my chambers. I take the earlieft opportunity, however, to acknowledge, that I am now convinced the commitment was erroneous. The af.} of af- fembly isobvioufly inconliltent with the exifling confiitution of the ftate; and, therefore, cannot be faved by the general provi- tion of the fchedule annexed to it. On that ground only my opinion is formed 5 but it is fuflicient to authorife a declaration, that the proceeding before the Ma r was, Mifrélo, void; that, the prifoner is not a citizen ofthe gnzbd Siam ; and that, confe- quently, he mult be releafed from the charge of Higb-7'reqfm. Iuenur., I am of the fame opinion. Difficulties, it is true, have been fuggefled on points not neceflhry to a deci- {ion on the prefent occaiion; and, certainly, if the queftion had not previoully occurred, Iihould be difpofed to think, that the power of naturalization operated exclufivcly, as foon as it was exercifed by Congrefs. · But the circumitances of the cafe now before the court, render it unneceffary to enquire into the relative jurifdiétions of the State and Federal governments. The only ai} of naturalization fuggeiied, depends upon the exiflence, or non-exiflence, of a law of Pennfylvania; and it is plain, that upon the abolition of the old conititution of the {tate, the law became inconlifient with` - the proviiions of the new confiitution, and, of courfe, ceafed to exift, long before the fuppofed aél of naturalization was per- formed. The Prifoner mult, therefore, be difcharged. The Um·r·a1> Srrras vnfu.: Pusan. at al. ` Capia: had ilfued in this caufe againft Daniel Perrier, 6 `W: J: A Wm. Duer, and john Holkrr, returnable to Jpril tcrm fd ryga ; and the Marfhal then returned, (Irpi Carpu: as to Dim-, (w o gave fpecial bail in due time) and uanfuut irrumzi, as to Parker and Holler. After a declaration was filed (reciting that the Marfhal had not found two of the defendants within his Diflriéi, and proceeding againil the other alone, upon the prim crplrr