Walther v. Rabolt
OTTO WALTHER v. LEOPOLD RABOLT
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Summary
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Opinion of the Court
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By the Court, Sawyer, J.:
The evidence is sufficient to justify the finding that the defendant is an alien. (Jackson v. Wright, 4 John.,79.)
The only other question is, whether an alien is eligible to the office of County Treasurer. It may be said, generally,that the right to vote and of eligibility to office, are political, and in some sense correlative rights. At common law an alien had no recognized political rights. He was permitted to enjoy certain civil rights, but even these were hedged in by many restrictions and limitations. The English common and statutory law was very chary of extending political privileges to those who were alien born; so much so, that when an alien was naturalized by Act of Parliament, a proviso was appended excluding him from holding office—a consequence which would otherwise follow as a matter of course from the naturalization. Indeed, so important was this exclusion considered, that there was a statute expressly prohibiting the'introduction into Parliament of any bill for the. naturalization of an alien unless it contained such a proviso. When it was considered advisable to grant this great boon—the capacity to hold office—as a matter of especial favor to some distinguished foreigner about to be naturalized, it was accomplished in this wise: An Act was first passed, repealing, as to the party designed to be thus honored, the clause of the statute inhibiting the introduction of a proper bill for the purpose; and an Act was then passed without exceptions. Thus, then, it appears that neither a denizen at common law, nor a naturalized citizen under the general statutory law of England can hold office. A fortiori, an alien cannot. (Rex v. De Mierre, 7 Burr. 2,788; 1 Bac. Abgt., Let. B., p. 200 and note; 1 Black. Com. 374.) And such we understand to be the common law in force in the other States in respect to aliens, where not in any particular modified by constitutional or statutory provisions. And such we also understand the law to be with reference to political rights in all civilized countries.' (Cushing’s Law. Legis. Ass., Secs. 24, 32, 56; Yattel’s Law of N. 1, Chap. 19, Sec. 214; 2 *189 Kent’s Com. 84; Bouv. Law Dic., title “Alien;” Dorst v. Beecker, 6 John. 332 ; Searcy v. Grow, 15 Cal. 117 .) We know of no constitutional or statutory modification of the common law in this State as to the political rights of aliens. But the question is so well discussed under the second head in respondent’s brief that, without repeating the argument, upon the reasons there stated and authorities cited, in addition to what has already been said, we hold the defendant to be ineligible.
It follows that the judgment must be affirmed, and it is so ordered.
Concurrence
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Sanderson, J., concurring:
“All political power is inherent in the people,” (Art. I, Sec. 2, of the Constitution,) and those who are not of the people can have no share in it. The people are such as are born upon the soil, by whom and for whom in the first place the Government was ordained, and such persons of foreign birth as may elect to assume the obligations of a citizen by complying with the laws of naturalization as enacted by Congress. If they desire to secure political rights they must cease to be aliens and become citizens in the mode there prescribed. Until then they can neither vote nor hold office; they can neither choose nor be chosen, for that is to exercise political power, and they are not of the people, who alone may exercise it. In the nature of things this must be so, and cannot be otherwise, except by force of some positive law. None such exists. By Section 17 of Article I of the Constitution, foreigners who were then or might' thereafter become bona fide residents of the State, are vested with the civil rights of native born citizens as to the possession, enjoyment and inheritance of property; but neither there nor elsewhere are they clothed with a share of the political power which is inherent in the people, or allowed upon any terms other than those of allegiance to participate in the management of public affairs.
I concur in the judgment.
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