require from every person who applied to be naturalized, evidence, not only that he had resided five years in the United States, but also that he had, at least two years before, filed a declaration of intention, or else that he came into this country before 1812, or before he was eighteen years of age, according to the exceptions specified in the statutes.

The number which it is complained were admitted without the necessary proof is forty. It is to be hoped that the want of directness in the answer of the first judge on this point was unintentional. He says: "The number naturalized I do not know, nor have I ever inquired." Again he says: "I am not informed and do not know the name of a single individual who was naturalized at the last October term of the Madison county courts. The residence of two individuals only is known to me, and those were residents of my own town, and had previously filed their certificates of intention and made their declaration the prescribed time before, as I was informed. No case, to my knowledge, was presented to the court, and no individual was challenged as to his proofs, within my recollection and belief. It is true, I was occupied in the trial of causes, and would not notice anything in relation to this practice as soon as others of the bench."

It is worthy of remark, in the first place, that the judge, in answering charges supported by oath, has not thought it important to verify his reply by his oath, and that consequently even the cautious and evasive statement above extracted is to be taken upon the word of the accused. The judge is not informed and does not know the name of a single individual who was naturalized at the October term. This seems an extraordinary answer to be made by the first judge, when the name and residence of every person naturalized at the October term are recorded in the clerk's office of his own court, and the want of information thus pleaded could be removed at once by reference to the records. The clerk, it would seem, could have no reluctance in giving such information, for a deposition made by him concerning another point has been submitted by the judge. The residences of two were known to the first judge, but we are not informed whether they were two of the one hundred admitted before the attention of the court was called to the law, or two of the forty naturalized afterward. It is charged, however, that the whole party came from Onondaga. The judge says, the two to

whom he refers resided in his own town in Madison county, and the charges do not cover the naturalization of those. But those two had filed their certificates of intention as he was informed. Informed? when? by whom? in what manner? where were the certificates filed? Does the first judge of Madison county administer the laws upon information? Courts of justice ought to proceed always upon proofs, never upon information. No individual, the judge says, was challenged as to his proofs. The affidavit of Sheldon shows that Mr. Foster, a counsellor, stated to the court that it was understood that said foreigners (the forty) had never declared their intentions to become citizens according to law, and that they claimed to be naturalized on the sole ground of a residence of five years in the country and one year in the state, although they had come to this country after 1812, and after they were eighteen years of age. This averment is not denied. It was a challenge to all the parties before the court, and yet the judge says no individual was challenged. But does the judge hold that persons may be admitted to citizenship in violation of law, provided they are not challenged? Where is the authority for this extraordinary proposition? No right of challenge is conferred by law upon any person, nor is any such challenge rendered necessary. It is for the judge to proceed according to law, even although his departure from it would be known only to his own conscience.

Did the challenged persons submit proofs that they had filed a previous declaration of their intentions, or that they came within the exceptions of the acts of Congress? The judge does not deem this point worthy of notice in his reply; but by an affidavit made by the clerk, and which the judge has submitted, it is expressly shown that not one of the party naturalized offered or was required to give such proofs.

It is not denied that the letter from James R. Lawrence, Esq., referred to by the petitioners, was received. A copy of the letter accompanies the petition. It refers to the acts of Congress, and shows the law clearly and explicitly. The first judge thinks he did not read Mr. Lawrence's letter. Admitting this doubt to have the full force of a denial, and supposing it made under the solemnity with which the receipt of the letter by the court is proved, there still remains the fact that the contents of the communication were stated to the first judge by one of his associ

ates, and were the subject of argument; and he admits that he thought it an unwarrantable interference on the part of Mr. Lawrence. It is not denied that Messrs. Foster, Sedgwick, and Newcomb, addressed the court, declaring that its practice was illegal, and produced and offered to read the acts of Congress. The first judge remarks: "Again it is said, that they were prevented from discussing the question and reading the law, and that I said I had no right to delay those who were applying for naturalization, and could not stop for any report; all which I most unequivocally declare to be false and without the semblance of truth." Yet, in another part of his reply, he says: "The only objection to reading the books was, that the question was disposed of for the term, and even then they could read them if they chose." Such a permission to read the law differs not very materially from a refusal to hear it read, since no counsel can, consistently with the respect due to the court, insist upon reading the law relating to a question, after being repeatedly and peremptorily informed (as the counsel were in this case, according to the first judge's own statement) that the subject had been definitively disposed of. It is not denied that Judge Backus stated that he believed the practice of the court was erroneous, and left the bench when he was overruled by his associates. How little impression his leaving the bench made upon the court, may be inferred from the manner in which that circumstance is spoken of in the reply of the first judge. He says: "Had Judge Backus been where his duty called or required him to be, and not in the yard keeping watch, he would have given a more correct statement of facts. As to the judicial courtesy manifested in making the statements to gratify the private malice of others, or to favor their personal views, I have nothing to say. How far he was horror-stricken, I have not the means of knowing. It is certainly a new mode of controlling the court, to abandon his seat because he differed in opinion with his fellows on a given point." If judges are ever to be presumed to understand the laws they are required to administer, or if wilful refusal to know the law is to be regarded as equivalent to intentional violation of it, the charges against the judges are fully sustained, and they are convicted of having wilfully, and with full knowledge of the law, admitted forty unqualified persons to the rights of citizenship, in open violation of the acts of Congress.

It remains only to consider what is offered in excuse of the proceeding. Judge Rodgers states, and is abundantly sustained by evidence, that for a period of twenty years, it had been the practice of the court to naturalize aliens without requiring any proofs of their having previously filed a declaration of their intention to become citizens, or proofs showing that they came within the exceptions; that this was the practice when he was called to the bench; that it was never questioned until the time when the transactions complained of took place; and that it was the custom of the court to devolve the whole business upon the clerk, who conducted it without the knowledge of the judges, and even while the court were engaged in the trial of causes.

Although it can not but excite much regret and mortification, it must be admitted that it appears from the papers before me, that the political excitement which in October last prevailed throughout the country, and which was elsewhere proper as well as unavoidable, was on this occasion found to have reached that place, which is the last it should ever enter a court of justice. The answer of the first judge shows that when Mr. Lawrence's letter was read by him (if it was so read), he considered it an attempt, under the mask of friendship, to interfere unwarrantably with the course of proceedings in the court of a neighboring county; and further, that he thought it would probably be well to reform the abuses in the practice at home, before he (Mr. L.) went abroad. When the counsel raised the question, it was replied, and seems to have been admitted by them, that they had practised procuring the naturalization of aliens according to the custom complained of by them. By the answer of the first judge, it appears that the force of their appeals to the court was weakened, in his estimation, by the charges made against them that they had availed themselves of the practice to secure the admission of persons of their own political party, and they were thus supposed to be convicted of duplicity, or at least of unfairness, in raising objections to the application of the rule, in order to exclude persons supposed to favor the political party to which the counsel were opposed. The court, on the day when the question was first raised, were engaged on the calendar of issues of fact; and on the second occasion, were disposing of the certioraris before them, with a view to a speedy adjournment; and they thought that as the practice had been so long settled, and had, as they

supposed, received the sanction of the learned circuit judge of the district, they would not change it without more deliberate and careful consideration than they felt at leisure to bestow upon it.

The reply of the first judge shows that the political excitement alluded to has not yet lost its influence upon his mind. He says, "How far this course, on the part of the movers, was proper after participating in the illegality, if it was so, themselves, during the same term, as admitted by them, I leave to your excellency, and your honorable body. I am not, however, to be dragooned or menaced into any course inconsistent with my opinion of duty, while I hold my place." Again he says, "Whether it comports with that comity which is due to courts in neighboring counties to station spies at their doors, or within their bar, who are to act as informers, I leave to your excellency, and to your honoraable body. A practice so obnoxious to common decency, I believe will not lead to any good result, and it may produce evils that can not be remedied. That unfledged lawyers, infants in their profession, * * * * * * * * should be sent abroad to coerce honorable men into their views of right and interrupt the business of courts, under the pretence of doing homage to the law, is an outrage upon the established rules of judicial decorum." The counsel complained of, might, perhaps, be excused for at least an equal ignorance of the laws in question, with the court in which they practised. It might, perhaps, be allowed, also, in their defence, that when the court had established the practice, counsel had no alternative but to follow it. But, allowing to the judges the full benefit of all the matters set up by the first judge, all will agree that it would have been highly honorable, and have reflected credit upon those judges, and upon the judiciary of the state, if, in this instance, where forty persons applied for admission to citizenship, without the legal qualifications, the court had thought the subject of sufficient importance to be examined before the persons were naturalized instead of afterward. It would have elevated the judges in the respect of the public, if they could have devoted one hour, or two hours if necessary, to the investigation of a subject so important, and so deeply affecting the public welfare. It would have been highly honorable to them, if, waiving personal objections to the counsel by whom the question had been raised, they had suspended their decision until they had ascertained, what now is perfectly clear, that the pracVOL. II.-26