THE UNITED STATES v. VILLATO
2 U.S. 370 (1797)

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U.S. Supreme Court

THE UNITED STATES v. VILLATO, 2 U.S. 370 (1797)

2Dall370[ The United States v. Villato 2 U.S. 370 (1797)

2 U.S. 370 28 F.Cas. 377 2 Dall. 370

The United States v. Villato Circuit Court, Pennsylvania District April Term, 1797

The defendant had been committed by the District Judge, on a charge of High Treason against the United States, and on the return to a Habeas Corpus, issued under the act of Pennsylvania (2 Vol. Dall. Edit. p. ) it appeared, that he had entered on board of a French privateer 'in parts out of the territory of the United States, and that, having so entered, he aided in capturing an American vessel.'

But it was objected, by Dallas and Du Ponceau, for the prisoner, that he was not liable to a charge of High Treason; because he was by birth a Spaniard, and had never become a naturalized citizen of the United States. They contended, therefore, that he ought to be discharged from the prosecution: independent of any inquiry, whether the offence could be deemed High Treason, even in a citizen.

The facts were these: Francis Villato was born within the dominions of the King of Spain; he came from New Orleans to Philadelphia in the beginning of the year 1793, and, on the 11th of May following, he took and subscribed, before the Mayor of the City, the oath specified in the third section of the act of Assembly, passed on the 13th of March 1789. 2 Vol. Dall. Edit. p. 676. He afterwards went to the West Indies, entered on board a French privateer, and acted as prize-master of the American brig John of New York, which the privateer had taken, while he was on board, and procured to be libelled and condemned at Cape Francois.

Under these circumstances, the argument entirely turned upon the question; whether the prisoner had become a citizen of the United States, in consequence of the oath taken and subscribed by him, on the 11th of May 1793.

For the affirmative of the proposition, Lee, the Attorney General of the United States, and Morgan, contended, that the act of Pennsylvania was in force in the year 1793; that it was not affected by the establishment of the new State Constitution, nor repealed by any subsequent law; that the power of naturalization

Page 2 U.S. 370, 371

granted to the Federal government was concurrent with, and not exclusive of, the State jurisdiction upon the subject; that the first naturalization act of Congress passed in the year 1790, furnished a new rule, but contained no repealing, or negative, words, to impair the operation of the pre-existing State laws; and that although at this time there was no other than the Federal rule for naturalizing a foreigner, yet this was the direct effect of positive negative words, in the act of Congress passed in the year 1795. 3 Vol. Swift's Edit. p. 163. Collet v. Collet. Ant. p. 295. Dallas, in reply. It is conceded, that if the prisoner is not a naturalized citizen of the United States, he must be discharged. It is unnecessary to enquire, whether the Federal power of naturalization is concurrent, or exclusive; since, it will be sufficiently shewn, that even if the power is concurrent, the State had ceased to exercise it before the year 1793; and, consequently, the prisoner could not have become a citizen of the United States under any law of Pennsylvania. Before Congress had exercised the power of naturalization given by the Federal Constitution, the then existing State constitution had declared, that '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.' 1 Vol. Dall. Edit. p. 60. in Appendix. While the test laws were in force, no particular form of qualification was prescribed for the purpose of naturalization, different from the oath, or affirmation, of allegiance and abjuration, exacted from every inhabitant of the State: But when the test laws were repealed, and before Congress had legislated upon the subject, a special provision became necessary; and the proviso in the act of the year 1789 (2 Vol. Dall. Edit. p. 677.) was expressly introduced to preserve and effectuate the 42nd section of the Constitution, with which it is in language and meaning inseparably connected. The next change in the business of naturalization was the act of Congress, passed in the year 1790. This act, it is true, does not contain a repeal of the State law, nor any negation of a State power to naturalize; but the arguments ab inconvenienti are strong against a concurrent authority; and, if not on the question of power, at least on the principle of expediency, the State Convention, who afterwards formed our existing Constitution, have evidently avoided a collision of jurisdiction, by omitting to prescribe any State mode of naturalization, and leaving the subject, implicity, to [2 U.S. 370, 372]


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