In re Jonasson

• Decision Date: 28 April 1917
• Citation: 241 F. 723
• Parties: In re JONASSON.
• Court: U.S. Court of Appeals — Fourth Circuit

241 F. 723

In re JONASSON.

United States District Court, D. Maryland.

April 28, 1917

ROSE District Judge.

The applicant for naturalization was born in 1882 in Schleswig. He came into the world a German subject because as a sequel to the war of 1864 Prussia had annexed his birthplace. While his father was a Swede, his mother a Dane, and he in blood and sympathy is Scandinavian, not German, he is in law a subject of Wilhelm II, German Emperor, and as a legal consequence, since the 6th instant, an alien enemy.

Does the law permit his naturalization? By an act first passed in 1802, c. 28, 2 Stat. 153, now forming part of section 2171 of the Revised Statutes (Comp. St. 1916, Sec. 4362) Congress has declared that no alien who is a native, citizen, denizen, or subject of any country, state or sovereignty with which the United States shall be at war at the time of his application shall be then admitted as a citizen of the United States. At that time and for 104 years thereafter, application for admission to citizenship was made orally in open court, and was then and there acted upon. The very statute now to be construed recognized this practice by requiring the applicant, at the time of his application to be admitted, to take the naturalization oath before the court. There can be no question as to what Congress in 1802 had in mind. It wished to forbid the naturalization of alien enemies.

In 1906 the naturalization procedure which had been followed for so many years was radically changed, and made far more formal. One who has previously declared his intention to become a citizen, and wishes to become one in fact, is now required to file in the clerk's office a somewhat elaborate petition which must be verified by his affidavit and that of two other persons. It may not be acted upon by the court until at least 90 days have elapsed. Is this petition the application within the meaning of the act of 1802, so that if the petitioner was then an alien friend he may be naturalized after war has been declared between his country and this' Within the last few days in the case of United States v. Meyer, the United States Circuit Court of Appeals for the Second Circuit has answered this query in the affirmative. That decision is not technically binding in this circuit, yet even though I find my own views to the contrary supported by the dissenting opinion of Judge Hough, it is only after great consideration that I can justify myself in declining to follow it. It have no doubt that what Congress 115 years ago, wished to prevent was the naturalization of subjects of powers with which we were then at war. Under the practice then prevailing this end could be as well attained by saying that no one should be naturalized upon an application made in war time as it could be by the use of any other language. The act says, in effect, that no one who was an alien enemy at the time of his application shall be then admitted. The application and the admission are spoken of as simultaneous, as they in fact were then and for more than a century afterwards. The fact that in 1906 Congress saw fit to provide a more elaborate system of naturalization procedure does not even tend to show that it changed its mind as to the unwisdom of naturalizing alien enemies.

It is true that in 1813 Congress provided that persons who had made their declaration of intention before the breaking out of the then existing war with Great Britain might be naturalized during the continuance of that war. The Circuit Court of Appeals for the Second Circuit thought this indicated that the federal Legislature had altered its views as to the fundamental question of national policy involved. Is it not more in harmony with the ordinary rules of statutory construction to conclude that Congress merely wished, because of special circumstances then existing, to except that particular war from the rule which it still wished ordinarily to prevail?

Naturalization confers privileges and imposes obligations. Congress may have forbidden naturalization during war time of the subjects of our enemies because it did not think it altogether safe for us then to give them the rights of citizens. If such was its dominant purpose, it may be...