
    DESBOIS'S CASE.
    Spring 1812.
    I. District.
    Inhabitants of the territory of Orleans became citizens of Louisiana, and of the U. States, by the admission of the country as one of the U: States.
   Martin, J.

delivered the opinion of the Court

Jean Baptiste Desbois has aplied for a licence to practice, as a counsellor and attorney at law, in rules of this Court, the application is not to be admitted; unles he be a citizen of the United States. 1 Martin, 84. the superior courts of the state. By one of the

If admits he has no claim to citizenship by birth, nor by naturalization, under the acts of congress to establish an uniform rule of naturalization. 6 Laws U. S. 74 & 7 laws U. S. 136; having never complied with the formalities required by any of these laws.

He contends, however, that natural birth, and a compliance with the formalities of these laws, are not the only modes of acquiring the citizenship of the United States: that the constitution itself has provided a third, viz, the admission into the Union, of a state of which one is a citizen.

By the 3d section of the 4th article of the constitution of the United States, it is provided that "new states may be admitted by the congress into the union"-and the 2d section of the same article directs that "the citizens of each state shalt be en"titled to all the priviledges and immunities of " citizens in the several states." It is impossible to give to the provisions of these two sections their effect, in the opinion of the counsel for the motion, without recognising, as a constitutional principle, the position that, on the admission of a new state into the union, its citizens, the members who compose it, become ipso facto entitled to all privilidges and immunities of citizens in the several states, consequently to those of citizens of the United States.

In the confidence that this position will be recognized by the Court, he has built his hopes of success on the establishment of the following facts:

1. That the state of Louisiana was, on the 30th of April last, "declared to be one of the United States of America, and admitted into the union, " On an equal footing with the original states, in " all respects whatsoever."

2. That at the time, he was a citizen of the state of Louisiana.

To establish his citizenship of the estate of Louisiana, he has proved that some time in the year 1806, he removed to, and settled with his family in, the city of New-Orleans, within the territory of Orleans, in contemplation of the enjoyment of all the advantages, which the laws of the territory, and of the United States, held out to foreigners removing into that territory, which be has ever since considered as his adopted~country.

That on the 16th of February, 1811, "the in- " habitants of all that part of the territory or coun- " try, ceded under the name of Louisiana, by the " treaty made at Paris on the 30th of April, 1803, " between the United States and France, contain- " ed within the following limits" (including the city of New-Orleans) were "authorised to form, " for themselves, a constitution & state govern- " ment:" that accordingly, a constitution was formed, and the inhabitants of that part of the former territory of Orleans, which includes the city of New-Orleans, became an independent state, by the name and stile of the state of Louisiana of which in his judgment, he is a component member, a citizen.

There cannot be any doubt of the correctness of this reasoning, if the word inhabitants, used in the part of the act of congress cited, is to be understood lato sensu, so as to comprehend every inhabitant actually settled: but it is contended this word is to takem in a restricted sense, so as to exclude such inhabitants, as were not in the country at the cession.

The grounds on which it is expected that the latter interpretation will prevail, are:

1. That it wasonly in favour, of the persons who inhabited the country, at the time of the cession, that the incorporation into the upion, and the admission to the rights of citizens of the United States, were stipulated in the treaty. Art. 3.

2. That the promise, made by congress in 1805, 7. Laws U. S. 283, “ Thatsas soon as it “ shall have been ascertained by an actual census, “ or enumeration of the inhabitants of the territo- “ ry of Orleans, taken by proper authority, that “ the number of free inhabitants, included there- “ in, shall amount to 60,000, they shall thereup- “ on be authorised toform for themselves a con- “ stitution or state government and be admitted “ into the union, upon the footing of the original “ statesin all respects whatsoever,” was accompanied with a declaration that the admission should be made “ conformably to the provisions of the 3d “ article of the treaty.” Therefore no person can claim the benefit ofthis new promise, who could not that of the stipulation in the treaty. ,

3. That the persons, in whose favour the act of congress of the 16th of February, 1841, was made, are described as “ the inhabitants of all that “ part of the territory or country ceded, under “ the name of Louisiana, by the treaty made at Paris, contained within the following lim- “ its;"whilst it would have been far easier to have said : “the inhabitants of all that part of the terri- tory of Orleans, contained, within the following limits, &c.” if congress had not intended, by a reference to the treaty, the more markedly to point out those for whose advantage the law was passed, viz, the inhabitants of the territory ceded, at the cession.

4. This construction is corroborated by the distinction made by congress in one of their acts (7 Laws U. S. 51.) They there extend the right of owning ships and vessels of the United States, " to the inhabitants of the ceded territory, who "were residents thereof on the 30th of April " 1803 :" clearly excluding those who had arrived since, and were consequently, as it is contended, no part of these inhabitants, in whose favour the stipulation in the treaty was made.

This interpretation is resisted on thesë grounds:

1. That the word "the inhabitants of all that "part of the territory or country ceded," are plain and explicit: and that the Court ought not to permit itself to resort to any rule of construction, when the meaning of the legislator is not expressed in words of a dubious meaning.

2. That if the expression was a doubtful one, it would be fairer to look for a clue, in the other parts of the act, than to seek it in other acts, passed several years before, and by other legislatures,- and that it is safer to judge of the legislator's meaning by what he has done, than by what he has said. Whatever congress may have said, as to the persons entitled to be members of the new state; they have actually vested the right of composing the body, who was to frame the constitution, in some inhabitants who arrived since the cession.

3. That to construe the word inhabitants, so as to include all actual inhabitants, at the time the word was used, is not to construe it lato sensu, but to give it its plain and obvious meaning only.

4. That if the word he ambiguous, the Court is to look for the meaning of the legislator, in the usage of the country before the passage of the act. Common usage being the best interpreter of the law. Si enirn de ambiguitate legis quceratur, im-priinis inspiciendum erit quo jure civitas retro in ejusmodi casibus uta sit. Stabilia ac optima legum interpres sit consuetudo. Pand. lib. 1, tit. 3, l. 37.

5. That construction ought, caeteris paribus, to preponderate, by which, in the charter of the €o-vereign, his beneficence shall have the most extention. Beneficium imperatoris quod a divina scili-cet ejus indulgentia profiscicitur quam plenissime interpretare debemus. Did. lib. 1; tit. 4, l. 3.

I. It is true that if the words "the inhabitants "of all that part of the territory or country ceded" stood aloof from others, which may give them another meaning, the Court would not resort to any rule of construction. Quoties in verbis nulla est ambLouitas, ibi nulla expositio contra verbafeinda est. 2 Saund. 157. But to admit that the words are susceptible of that meaning only, in which the counsel for the motion understand it, is to give up the whole question.

II. Surely, the legislator's meaning will be more safely scertained form a comparison of the different parts of a status; but it is also proper to cconsider all other states in pari materia; and as actions denote intentions more forcibly than words, what the legislator has done, will be better evidence of his will, than what he has said.

The doubt which arises as to the meaning of the word inhabitants, used in the first part of the first section of the act of 1811, when we compare it with antecedent acts, must be much weakened, when we do so, with what is said and done, in the second section.

We are to take notice that in the first, the perSons who are to constitute the new state are pointed out. The object of the second is, to select from among them those who, on the day of election, are to pronounce the will of the future citizens, in ~e choice of their representatives. Here we find that inhabitants of the territory ceded, arrived since the cession, even within two years, are authorised to vote. The inference is very strong that, since they are thus called, by an express provision, with those who were in the country at the cession, to co-operate in the törmation of the constitution, they were intended by congress to have the same rights, at least, as those of the inhabitants at the cession, who for want of certain qualifications were exclude from the poll.

If the inhabitants, who were at the cession, were the exclusive object Of the congress's attention and favour in the first section, it is strange that in the secondm the most important, they should be entirely pretermitted. In pointing out the voters, no fight is given to, them as such.

III. IV. Let us now seek the meaning of the word, in the laws and usages of the country before the passage of the act.

The act of congress, authorising the formation of the constitution of this state, 10 Laws U. S. 322, was almostlittle all copied from that which authorised that of thestate of Ohio. 6 Laws U. S. 120. In the first section of the latter, "the inhabitants of the eastern division of the territory " north-west of the river Ohio," are authorised to form, for themselves, a state constitution." In the 4th section, the persons entitled to vote for members of the convention, are described-first, all male citizens of the United States-next, all other persons having; &c.

The word ihhabitants, in the first section of this act, must be taken lato sensu, it cannot be restrained so as to include citizens of the United States only ; for other persons are afterwards called upon to vote. There is not any treaty, or other instrument, which may be said to coutrol it. Evety attempt to restrict it must proceed in principles abosulotelt arbitrary. If the word is to be taken lato sensu in the act passed in favour of the people of one territory, is there any reason to say that we are to restrain it in another act, passed for similar purposes, in favour of the people of another territory?

It is one of the oldest principles of Anglo-American jurisprudence, that the soil of the Unite States is that of universal naturalisation. An alien in America before the revolution, was entitled to many more rights than an alien in England. 1. By the very act of migration to, and settlement in, America, hebecame ipso facto a denizen, under the express stipulations of the colonial charters (all of which, it is believed, contained similar clauses) whereby it was stipulated, for the better encouragement of all who would engage in the settlement of the colonies, that they, and every one of them, that should inhabit the same, should and might have all the priviledges of free denizens or persons natives of England. Q. Elizabeth's charter to sir W. Raleigh. 2. By the same act of migration, he had a right to he natura- lised under the sanction of a pre-existing law, made not only for the benefit, but for the encouragement, of all in a similar situation with himself. The operation of these laws was immediate not remote: he became a detizen, as of right, instantly; he became naturalised, upon payment of the legal fees for his letters of naturalisation, and taking the oaths. 1 Tucker's Blackstone, part 2 app. 99.

After the revolution this principle was en-grafted in the constitutions of most of the states. Every foreigner, says the 49th article of that of North Carolina, who comes to settle in this state having first taken an oath of allegiance to the same, may purchase, and by other lawful means, acquire, hold, and transfer kind and other real estate, and after one year's residence shall be deemed a free citizen.

By the adoption of the constitution of the United States, the right of aliens to become citizens, was by no means intended to be taken away. On the contrary, it is expressly provided that "con- " gress shall have power to establish an uniform "rule of naturalisation." Art 1, sect. 8. Here we may observe that congress are authorised to prescribe the mode, by which aliens are naturali-sed; but it never was intended to authorisë them to take away the right. For, among the acts of misrule, alledged against George III. in the declaration of independence, it is asserted that "he has endea-"voured to prevent the population of these states; " for that purpose, obstructing the law for the na-turalisation of foreigners, and refusing to pass " others to encourage their migration thither." Every alien, coming to the United States in time of peace, therefore, acquires an inchoate right under the constitution to become a citizen 1 Tucker's Blackstone, part 2, 99, 100.

Every European nation possessed of colonial establishments in America, except, perhaps, the Spanish, admitted foreigners to naturalisation in them, without difficulty; and whatever might be the conduct of Spain in her other American colonies, in Louisiana, naturalisation was obtained with great facility. Foreigners were permitted to settle, lands were allotted them, and they expence of their migration was often borne by the crown who in many instances supplied them with the means of subsistence during the infancy of their establishments. See Gayoso's instructions and Ca-rondelet's contracts with Bastrop and Maison Rough. Land laws U. S. appendix 63, 67, 70. Frequent instances occurred, under the Spanish government, of such naturalised citizens, being appointed to offices of high trust and profit.

It is, therefore, correct to conclude that foreigners who migrated into the territory of Orleans after the cession, acquired, by the very act of migration, an inchoate right of naturalisation or territorial citizenship, under the particular laws of the land (we mean those by which the country had been regulated under the dominion of Spain, and which remained unrepealed) and the general principles of the American government.

In 1805, in extending to their newly acquired possession the second glade of territorial government, congress vested new rights in the inhabitants; and as these rights expressly extended to future immigrants, held out new inducements to foreigners disposed to migrate-inducements to which is perhaps due, in a considerable degree, the extraordinary increase of the population of the territory.

The sights which foreigners acquired before 1085, in migrating into the territory, were that of purchasing and holding land, and consequently establishing themselves thereon.

It does not appear that they were under any disqualification, express or implied, from holding my office in the territory government. The contrary is to be presumed; for their eligibility (after a certain period) to seats in the legislative council, had been declared. That body was to becom-posed of thirteen of the most fit and discreet persons of the territory, chosen among those holding real estate therein, and who shall have resided one

In 1805, to those rights were added:

1. That of voting for members of the house of representatives, after a residence of two years.

2. That of being eligible as a representative, after three,

S. And as a member of the legislative council-Ordinance of 1787.

They were not disqualified from holding any office.

It is true some real property was required, to exercise those rights; but the same property qualification was indispensible to the inhabitants on the ceded territory residing there at the session.

So that, as to the rights of a territorial citizen, inhabitants arrived since the cession, wereon aper-fect equality with those who were residents at the session.

Persons, endowed by the laws of the territory and of the union, with such extensive, such valuable rights, could not be considered on the footing of aliens, in any sense of the word. They had acquired civil rights, of which they could not be wantonly deprived, without aviolation of some of the most sacred principles of political justice, as wellas of mthtl obligation. They might emphatically call that country their own, in which they were permitted to exercise such rights-rights for which some of them had paid a valuable consideration.

Those who have served the territory in the legislature, or accepted offices, have in many instances, forfeited their civil rights and become aliens in the country from which they migrated. La qua-lité de Français, that is to say, French citizenship, shall be lost 1. By naturalisation acquired in a foreign country: 2. By the acceptance of public functions, unauthorised by the emperor, conferred by a foreign governments. 3. By every establishment in a foreign country, without the intention of returning. Napoleon code, livre 1, chap. 2, sect. 1, art. 17.

Surely, he, who thus engaged in the service of his adopted country, did it in a confidence, which the American. government had excited, and consequently was bound not to disappointwan-tonly, that its protection should not be withdrawn without cause; that it should not betray him, by sending him back, a stranger in the whole world, liable to be taken and delivered to the very sovereign whose resentment he had excited, by an attempt to throw off his allegiance.

If an individual, who thus forfeited his rights in his native country, is not, by the late change of government, a citizen of the state of Louisiana, he is an alien to all intents and purposes whatever. When he finds him thus thrown away, an outcast upon the world, he may well address congress thus: “ You have declared me an “ alien. On a war breaking out with my former “ country, you will consider me as an alien “ enemy. If ever the same law are enacted as “ were passed in 1798 (4 Laws U. S. 143) I may “ be shipped away. I settled in one of your ter- “ ritories, in which your laws offered me a domi- “ cil, the right of holding land, elective franchise, eli- “ gibility to every office capacity to exercise legisla- “ tive functions: brilliant prerogatives from which “ my dazzled mind could not by any possibility “ separate the quality of a citizen. I have taken a “ wife, children are born to me. These are citi- “ zens. Shall I take them with me out of the “ only country, in which they have any right, and “ wander with them, outcast and forlorn, till I “ find an hospitable nation, from whose genero- “ sity we may obtain, what we vainly claimed from “ your justice. Or shall I part from them and “ with the civil rights, of which I am dispoiled, “ lose those of a husband and a father?

“ It is true I cannot turn to any part of your “ statutes in which the citizenship of the United “ States was expressly promised to me. But “ The obligation of promises, says archdeacon “ Paley, depends upon the expectations, which “ we knowingly and voluntarily excited; conse- “ quently any action or conduct towards another “ which we are sensible excites expectations in " him, is as much a promise and creats as strict “ an obligation, as the most express assurances. “ Taking, for instance, a kinsman's child, and “ educating him for the heir of a large fortune, as “ much obligee us to place him in that profession, “ or to leave him such a fortune, as of we had giv- “ en him a promise to do so, under our hands and “ seals. Paley's Ph. 99, 100.

“ Now, if nations are bound by moral obliga- “ tions, receiving a foreigner, allowing him to pur- “ chase land, bestowing on him to exercise legis- " passing laws to authorise him to exercise legis- “ lative functions, that is to say, the sovereign “ power of the country, naturally excite expecta- “ tions, which cannot be wantonly disappointed, “ without a flagrant breach of faith. The expec- “ tation which your conduct excited in me was, “ that I should never be reduced to the condition “ of an alien, without some fault on me.”

V. The Court recognizes the principle that the act to enable the people of the territory of Orleans to form aconstitution, &c. ought to have a liberal construction, and that, without the utmost necessity, no part of it ought to be so interpreted so as to destroy acquired rights. In ordinary affairs, the benignity of the law, says lord Bacon, is such that when, to preserve the principles and grounds of the law, it deprives a man of his remedy, it will rather put him a better degree and condition than in a worse, nam quod remedio destituitur, ipsa ratione valet, si causa absit. Bacon's Elem. c. 9. If a man shall not lose his remedy without his fault, shall he be presumed to lose his right? The presumption, then, must be, that congress, in establishing a government, which necessarily must have deprived certain individuals of their civil rights, would be inclined to give them better-rather raise them to the high situation of a citizen of the United States, than to degrade them to the degree and condition of an alien.

On the best view of the case, we are of opinion that the reference to the treaty, and the distinction made, in favour of the inhabitants, who were here at the cession, in the sole instance of owning vessels of the United States, are not sufficient circumstances, from which we may imply the intention of congress to exclude from the rights of a citizen of the state of Louisiana, any person actually and bontifide an inhabitant of that part of the territory of Orleans, described in the act, at the time of its passage.

The consequence of this opinion, on the present case, is, that the applicant must be considered as a citizen of the state of Louisiana, and as such is entitled to all the rights and priviledges of a citizen of the United States.  