Prior decisions of this Court holding that a judgment of a
competent court admitting a person to citizenship is, like every
other judgment, competent evidence of its own validity, go no
further than protecting the judgment from collateral attack.
Congress may authorize direct proceedings to attack certificates
of citizenship on the ground of fraud and illegality, and § 15 of
the Act of June 29, 1906, 34 Stat. 596, 601, c. 3592, providing for
such cases, is a valid exercise of the power of Congress under Art.
I, § 8 of the Constitution of the United States.
The foundation of the doctrine of res judicata
estoppel by judgment is that both parties have had their day in
court, Southern Pacific R. Co. v. United States,
168 U. S. 1
168 U. S. 48
where a certificate of naturalization was issued without the
government's appearing, there is no estoppel against it, nor is
such a certificate conclusive against the public.
Certificates of naturalization, like patents for land or
inventions, when issued ex parte
can be annulled for
How the judicial review of a certificate of naturalization
should be conducted rests in legislative discretion.
as to the conclusive effect of a certificate of
naturalization issued after appearance and cross-examination by the
whether, in the absence of statute such as the
Act of June 29, 1906, a court of equity could set aside, or
restrain the use of, a certificate of naturalization.
Page 225 U. S. 228
The act of June 29, 1906, is not unconstitutional a an exercise
of judicial power by the legislative branch of the government, nor
is it unconstitutional because retrospective.
The ex post facto
provision of the Constitution is
confined to law affecting punishment for crime, and has no relation
to retrospective legislation of any other description.
An alien has no legal or moral right to retain citizenship
obtained solely by fraud, and an act permitting the cancellation of
a certificate so obtained is not a punishment, but simply nullifies
that which the party had no right to.
The facts, which involve the power of the court under the Act of
June 29, 1906, c. 3592, to cancel a certificate of naturalization
on the ground that it was fraudulently issued, are stated in the
Page 225 U. S. 232
MR. JUSTICE PITNEY delivered the opinion of the Court.
This was a proceeding under § 15 of the Act of June 29, 1906, c.
3592, 34 Stat. 596, 601, instituted by the District Attorney of the
United States for the Northern District of California to cancel a
certificate of citizenship granted to the appellant by a state
court long prior to the passage of the act referred to on the
ground that it had been fraudulently and illegally procured. The
case was heard upon demurrer to an amended petition, which demurrer
was overruled, and thereupon, no answer being filed, the court
proceeded to make a decree setting aside and cancelling the
certificate. The appellant brings that decree here for review.
The facts, as set forth in the amended petition and admitted by
the demurrer, are as follows: Johannessen, the appellant, is a
native of Norway, and arrived in the United States for the first
time in the month of December, 1888. Less than four years
thereafter, and on October 6, 1892, he applied to the Superior
Court of Jefferson County, in the State of Washington, under § 2165
of the Revised Statutes of the United States, to be admitted to
Page 225 U. S. 233
citizenship, and procured from that court a certificate
admitting him to such citizenship. This certificate was based upon
the perjured testimony of two witnesses to the effect that
Johannessen had resided within the limits and under the
jurisdiction of the United States for five years at least, then
last past. The facts were not discovered by the government until
June 29, 1908, when Johannessen made a voluntary statement to the
Department of Justice in the form of an affidavit, which is made a
part of the amended petition, and wherein he admits that the
certificate of citizenship was illegally procured in that he had
not been a resident of the United States for five years at the time
it was issued.
The petition contains all necessary averments to show the
jurisdiction of the district court over the present action, leaving
only the merits in controversy.
The provisions of law in force at the time Johannessen thus
applied for and procured admission to citizenship are contained in
§§ 2165 and 2170 of the Revised Statutes, which, so far as
pertinent, are as follows:
"SEC. 2165. An alien may be admitted to become a citizen of the
United States in the following manner, and not otherwise:"
"First. He shall declare on oath, before a circuit or district
court of the United States, or a district or supreme court of the
territories, or a court of record of any of the states having
common law jurisdiction and a seal and clerk, two years at least,
prior to his admission, that it is bona fide
to become a citizen of the United States, and to renounce forever
all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, and, particularly, by name, to the prince,
potentate, state, or sovereignty of which the alien may be at the
time a citizen or subject."
"Second. He shall at the time of his application to be admitted,
declare, on oath, before some one of the
Page 225 U. S. 234
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 proceedings 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
"* * * *"
"SEC. 2170. No alien shall be admitted to become a citizen who
has not, for the continued term of five years next preceding his
admission, resided within the United States."
The Act of June 29, 1906, contains a revision of the
naturalization laws, together with some additional provisions,
among which are the following:
"SEC. 15. That it shall be the duty of the United States
district attorneys for the respective districts, upon affidavit
showing good cause therefor, to institute proceedings in any court
having jurisdiction to naturalize aliens in the judicial district
in which the naturalized citizen may reside at the time of bringing
the suit, for the purpose of setting aside and cancelling the
certificate of citizenship on the ground of fraud, or on the ground
that such certificate of citizenship was illegally procured. In any
such proceedings, the party holding the certificate of
Page 225 U. S. 235
citizenship alleged to have been fraudulently or illegally
procured shall have sixty days' personal notice in which to make
answer to the petition of the United States, and if the holder of
such certificate be absent from the United States or from the
district in which he last had his residence, such notice shall be
given by publication in the manner provided for the service of
summons by publication or upon absentees by the laws of the state
or the place where such suit is brought."
"* * * *"
"Whenever any certificate of citizenship shall be set aside or
cancelled as herein provided, the court in which such judgment or
decree is rendered shall make an order cancelling such certificate
of citizenship, and shall send a certified copy of such order to
the Bureau of Immigration and Naturalization, and in case such
certificate was not originally issued by the court making such
order, it shall direct the clerk of the court to transmit a copy of
such order and judgment to the court out of which such certificate
of citizenship shall have been originally issued. And it shall
thereupon be the duty of the clerk of the court receiving such
certified copy of the order and judgment of the court to enter the
same of record, and to cancel such original and to notify the
Bureau of Immigration and Naturalization of such cancellation."
"The provisions of this section shall apply not only to
certificates of citizenship issued under the provisions of this
act, but to all certificates of citizenship which may have been
issued heretofore by any court exercising jurisdiction in
naturalization proceedings under prior laws."
The principal contentions in the argument for appellant are that
a decree of naturalization is a judgment of a competent court, and
subject to all the rules of law regarding judgments as such; that a
court of equity could not, prior to June 29, 1906, set aside or
annul such a judgment
Page 225 U. S. 236
for fraud intrinsic the record -- that is, founded upon perjured
testimony -- or any matter which was actually presented and
considered in giving the judgment, and that, if the Act of June 29,
1906, authorizes the impeachment of the preexisting judgment of a
coordinate court for fraud consisting of the introduction of
relevant perjured testimony, it is unconstitutional as an exercise
of judicial power by the legislature.
It was long ago held in this Court, in a case arising upon the
early acts of Congress which submitted to courts of record the
right of aliens to admission as citizens, that the judgment of such
a court upon the question was, like every other judgment, complete
evidence of its own validity. Spratt v.
4 Pet. 393, 29 U. S. 408
This decision, however, goes no further than to establish the
immunity of such a judgment from collateral attack.
See also Campbell v.
6 Cranch 176.
It does not follow that Congress may not authorize a direct
attack upon certificates of citizenship in an independent
proceeding such as is authorized by § 15 of the Act of 1906.
Appellant's contention involves the notion that, because the
naturalization proceedings result in a judgment, the United States
is for all purposes concluded thereby, even in the case of fraud or
illegality for which the applicant for naturalization is
responsible. This question may be first disposed of.
The Constitution, Art. 1, § 8, gives to Congress power "to
establish an uniform rule of naturalization." Pursuant to this
authority, it was enacted, as above quoted from the Revised
Statutes, that an alien might be admitted to citizenship "in the
following manner, and not otherwise," § 2165 requiring proof of
residence within the United States for five years at least and §
2170 declaring a continued term of five years' residence next
preceding his admission to be essential. An examination of this
legislation makes it plain that, while a proceeding
Page 225 U. S. 237
for the naturalization of an alien is, in a certain sense, a
judicial proceeding, being conducted in a court of record and made
a matter of record therein, yet it is not in any sense an adversary
proceeding. It is the alien who applies to be admitted who makes
the necessary declaration and adduces the requisite proofs, and who
renounces and abjures his foreign allegiance, all as conditions
precedent to his admission to citizenship of the United States. He
seeks political rights to which he is not entitled except on
compliance with the requirements of the act. But he is not required
to make the government a party nor to give any notice to its
The Act of June 29, 1906, in § 11 (34 Stat. 599), declares that
the United States shall have the right to appear in naturalization
proceedings for the purpose of cross-examining the petitioner and
the witnesses produced in support of his petition, and shall have
the right to call witnesses, produce evidence, and be heard in
opposition to the granting of naturalization. No such provision was
contained in the act as it formerly stood. For present purposes, we
assume, however, that the government had such an interest as
entitled it, even without express enactment, to raise an issue upon
an alien's application for admission to the privileges of
citizenship. What may be the effect of a judgment allowing
naturalization in a case where the government has appeared and
litigated the matter does not now concern us. (See
Black, Judgts. § 534a.) What we have to say relates to such a case
as is presented by the present record, which is the ordinary case
of an alien appearing before one of the courts designated by law
for the purpose, and, without notice to the government, and without
opportunity, to say nothing of duty, on the part of the government
to appear, submitting his application for naturalization with
proofs in support thereof, and thus procuring a
certificate of citizenship. In view of the great numbers of aliens
Page 225 U. S. 238
applying at irregular times in the various courts of record of
the several states and in the federal circuit and district courts
throughout the Union, and bringing their applications on to summary
hearing without previous notice to the government of the United
States or to the public, it is, of course, impossible that the
public interests should be adequately represented, and in our
opinion the sections quoted from the Revised Statutes are not open
to any construction that would give a conclusive effect to such an
investigation when conducted at the instance of and controlled by
the interested individual alone.
The foundation of the doctrine of res judicata,
estoppel by judgment, is that both parties have had their day in
court. 2 Black, Judgts., §§ 500, 504. The general principle was
clearly expressed by Mr. Justice Harlan, speaking for this Court in
Southern Pacific R. Co. v. United States, 168 U. S.
, 168 U. S. 48
"That a right, question, or fact distinctly put in issue and
directly determined by a court of competent jurisdiction, as a
ground of recovery, cannot be disputed in a subsequent suit between
the same parties or their privies."
Sound reason, as we think, constrains us to deny to a
certificate of naturalization, procured ex parte
ordinary way, any conclusive effect as against the public. Such a
certificate, including the "judgment" upon which it is based, is in
its essence an instrument granting political privileges, and open
like other public grants to be revoked if and when it shall be
found to have been unlawfully or fraudulently procured. It is in
this respect closely analogous to a public grant of land (Rev.Stat.
§ 2289, etc.), or of the exclusive right to make, use, and vend a
new and useful invention (Rev.Stat. § 4883, etc.).
Judicial review of letters patent, looking to their cancellation
when issued unlawfully or through mistake, or when procured by
fraud, is very ancient, possibly antedating the establishment of
the court of equity in England.
Page 225 U. S. 239
3 Black.Com. 47, 48. As pointed out by Mr. Justice Grier,
speaking for this Court in United States v.
2 Wall. 525, 69 U. S. 535
the original mode was by writ of scire facias,
the bill in
equity being afterwards adopted as a more convenient remedy. In
United States v. San Jacinto Tin Co., 125 U.
, 125 U. S. 281
previous cases were reviewed and the practice discussed. In
United States v. Beebe, 127 U. S. 338
127 U. S. 342
MR. JUSTICE LAMAR, speaking for this Court, said:
"It may now be accepted as settled that the United States can
properly proceed by bill in equity to have a judicial decree of
nullity and an order of cancellation of a patent issued in mistake
or obtained by fraud, where the government has a direct interest,
or is under an obligation respecting the relief invoked."
See also Noble v. Union River Logging R. Co.,
147 U. S. 165
147 U. S. 175
and cases cited.
United States v. Throckmorton, 98 U. S.
, is not opposed in principle, for, as pointed out in
United States v. Minor, 114 U. S. 233
114 U. S. 241
the patent was issued on the confirmation of a Mexican grant after
judicial proceedings, where there were pleadings and parties, and
witnesses were examined on both sides, with the right to appeal.
Vance v. Burbank, 101 U. S. 514
101 U. S. 519
was likewise a contested case in the Land Department, as the report
The doctrine that a patent issued ex parte
annulled for fraud has been repeatedly applied to patents for
inventions. United States v. American Bell Telephone Co.,
128 U. S. 315
128 U. S. 361
Same v. Same, 167 U. S. 224
167 U. S.
Whether the judicial review of a certificate of naturalization
should be conducted in one mode or another is a matter plainly
resting in legislative discretion. Section 15 of the Act of June
29, 1906 (34 Stat. 601), provides for a proceeding in a "court
having jurisdiction to naturalize aliens, in the judicial district
in which the naturalized citizen may reside at the time of bringing
the suit," upon fair
Page 225 U. S. 240
notice to the party holding the certificate of citizenship that
is under attack. No criticism is made of this mode of
The views above expressed render it unnecessary for us to go
into the question whether, on general principles, and without
express legislative authority, a court of equity at the instance of
the government, might set aside a certificate of citizenship or
restrain its use, for fraud or the like. In United States v.
42 F. 417, it was declared that the government could
sue in a federal court for the cancellation of a certificate that
had been procured by fraud in a state court, but it was held that
the facts set forth in the bill did not make out a sufficient case
of fraud. In United States v. Gleason,
78 F. 396, the
contrary conclusion was reached upon the main question. These two
cases arose prior to the Act of 1906.
Since the passage of that act, the district courts have quite
generally sustained the action for a cancellation of fraudulent
certificates. United States v. Nisbet,
168 F. 1005;
United States v. Simon,
170 F. 680; United States v.
170 F. 671; United States v. Meyer,
983; United States v. Luria,
184 F. 643; United States
175 F. 440. In the latter case, Judge Cross used
the following pertinent language (at p. 442):
"An alien friend is offered, under certain conditions, the
privilege of citizenship. He may accept the offer and become a
citizen upon compliance with the prescribed conditions, but not
otherwise. His claim is of favor, not of right. He can only become
a citizen upon and after a strict compliance with the Acts of
Congress. An applicant for this high privilege is bound therefore
to conform to the terms upon which alone the right he seeks can be
conferred. It is his province, and he is bound, to see that the
jurisdictional facts upon which the grant is predicated actually
exist, and if they do not,
Page 225 U. S. 241
he takes nothing by his paper grant. Fraud cannot be substituted
And again, at p. 446,
"That the government, especially when thereunto authorized by
Congress, has the right to recall whatever of property has been
taken from it by fraud, is, in my judgment, well settled, and if
that be true of property, then by analogy and with greater reason
it would seem to be true where it has conferred a privilege in
answer to the prayer of an ex parte
The contention that the Act of June 29, 1906, in authorizing the
impeachment of certificates of naturalization theretofore issued
for fraud consisting of the introduction of perjured testimony, is
unconstitutional as an exercise of judicial power by the
legislative department is in effect disposed of by what has been
said. The act does not purport to deprive a litigant of the fruits
of a successful controversy in the courts, for, as already shown,
the proceedings for naturalization are not in any proper sense
adversary proceedings, but are ex parte
and conducted by
the applicant for his own benefit. The act in effect provides for a
new form of judicial review of a question that is in form, but not
in substance, concluded by the previous record, and under
conditions affording to the party whose rights are brought into
question full opportunity to be heard. Retrospective acts of this
character have often been held not to be an assumption by the
legislative department of judicial powers. Sampeyreac
v. United States,
7 Pet. 222, 32 U. S. 239
2 Wall. 160, 69 U. S. 175
Garrison v. New
21 Wall. 196, 88 U. S. 202
Freeland v. Williams, 131 U. S. 405
131 U. S. 413
Stephens v. Cherokee Nation, 174 U.
, 174 U. S.
An alien has no moral nor constitutional right to retain the
privileges of citizenship if, by false evidence or the like, an
imposition has been practiced upon the court without which the
certificate of citizenship could not and would not have been
issued. As was well said by
Page 225 U. S. 242
Chief Justice Parker in Foster v. Essex Bank,
273, "there is no such thing as a vested right to do wrong."
The remaining points taken by the appellant may be briefly
disposed of. One is that the provisions of § 15 of the Act of 1906
are not retrospective. This is refuted by a reading of the closing
paragraph of the section. Finally, it is insisted that, if
retrospective in form, the section is void as an ex post
law within the prohibition of Art. I, § 9 of the
Constitution. It is, however, settled that this prohibition is
confined to laws respecting criminal punishments, and has no
relation to retrospective legislation of any other description.
Cooley's Const.Lim. (6th ed.) 319; Calder v.
3 Dall. 386, 3 U. S. 390
Rose's Note thereon. The act imposes no punishment upon an alien
who has previously procured a certificate of citizenship by fraud
or other illegal conduct. It simply deprives him of his ill gotten
privileges. We do not question that an act of legislation having
the effect to deprive a citizen of his right to vote because of
something in his past conduct which was not an offense at the time
it was committed would be void as an ex post facto
4 Wall. 277, 71 U. S. 321
4 Wall. 333, 71 U. S. 378
But the act under consideration inflicts no such punishment, nor
any punishment, upon a lawful citizen. It merely provides that, on
good cause shown, the question whether one who claims the privilege
of citizenship under the certificate of a court has procured that
certificate through fraud or other illegal contrivance shall be
examined and determined in orderly judicial proceedings. The act
makes nothing fraudulent or unlawful that was honest and lawful
when it was done. It imposes no new penalty upon the wrongdoer. But
if, after fair hearing, it is judicially determined that by
wrongful conduct he has obtained a title to citizenship, the act
provides that he shall be deprived of a privilege that was never
Page 225 U. S. 243
his. Such a statute is not to be deemed an ex post
The decree under review should be