Page:The Green Bag (1889–1914), Volume 17.pdf/679

 THE GREEN BAG the two cases which have arisen having terminated with judgments diametrically opposite in effect. It is axiomatic law that a judgment or degree procured by fraud and false evidence will be set aside by the tribunal rendering it, upon the fraud being shown; or its effect annulled by an injunction prohibiting the giving of it effect. It is, therefore, apparent that the- admission of an alien to citizenship may be annulled and canceled by the court in which he was admitted, when his. admis sion has been procured by false testimony or fraud, and it was so held in the United States v. Kornmehle (89 Fed. Rep. 10). But take a slightly different case: As sume that the naturalization had been pro cured by fraud practiced upon the state court when the applicant was admitted. Of course the validity of the citizenship can not be attacked collaterally either in the courts of the same or another state, or in those of the United States; but the question still remains can the United States proceed directly for the cancelation of the naturali zation in the federal courts? That it could not do so successfully in the courts of another state, will hardly be questioned by any one, even though the. allegation of fraudulent procurement should be held to obviate any constitutional objection on the ground of according "full faith and credit to the judg ments and decrees" of the courts of another state. With regard to the attitude of the federal courts there is more doubt. In the United States v. Norsch (42 Fed. Rep. 417), decided by Judge Thayer in the United States Circuit Court for the eastern district of Missouri, it was distinctly laid down that such a proceeding is maintainable, the limi tation being that fraud, and that alone, could afford a sufficient basis for such a pro ceeding, and that it would fail where "the proceeding is merely tantamount to a motion to set the judgment aside for irregularity, or to a writ of error, or to a petition or bill of review. " And the cases of Gaines

t1. Fuentes (92 U. S. 10), and Barrow v. Hunton (99 U. S. 82), were relied on as supporting the conclusion. The same question was again raised a few United States Circuit Court for the eastern district of New York, in the case of the United States v. Gleason (78 Fed. Rep. 396), and an opposite conclusion reached. The reasoning of the latter case appears the more satisfactory. While it is true that in a few cases the judgments and decrees rendered by state courts have been set aside, or their execution enjoined in the federal courts, they have been judgments operating only inter partcs. This would not be true with regard to naturalization. A federal court might compel the surrender of the certificate, which is the evidence of the judgment, but it is difficult to see how that could affect the citizenship established by the judgment, or the record of the state court, and an injunc tion which could only run against further exercise of the rights of citizenship would not affect past acts performed as a citizen. Said Judge Wheeler in the case just cited: "The defendant became a citizen of the state of New York as well as a citizen of the United States. Other citizens became entitled to vote for him for such offices as citizens could hold as well as he became entitled to vote, hold office, hold lands, or do what else citizens can do. Neither the state, nor any citizen of New York or of the United States, is a party to this suit; nor do they hold their right to vote for him, or to have him hold office, under him, and no decree against him could affect their right. An attempt to carry out such a decree would produce great confusion and mischief. Chief Justice Marshall, in Spratt V. Spratt (4 Pet. 392), stated that the incon venience which might arise from holding the judgment conclusive had been pressed upon the court, and added 'but the incon venience might be still greater if the opposite opinion be established.'" The objection suggested in the language
 * years later, before Judge Wheeler, in the