Show from the cincinnati law gazette naturalization jurisdiction of probate court U S circuit court southern district of ohio we have heretofore given the decision of th the e probate court see law gazette vol 2 p ana subsequently the decision of the district court of ohio for hamilton county on the question as to the right of probate courts to issue naturalization paper papers the district court judge swan sw an presiding pres idin g having deci decided ded that the probate court had bad no power to act in such cases tsee see weekly law gazette vol 2 E p below we give the opinion of judge iclean mclean sustaining the jurisdiction of the probate court Al cLEAN J smith a native of bade baden represents that on the twenty seventh day of october 1856 he filed in the probate court in and for himilton ILi Hj milton county ohio the declaration of his intention to become a citizen of the united state states that he has been a resident of the united states for the term of five years now last past and of the state of ohio one year that he is attached to the principles of the constitution tion of the united states and la lei well dis disposer posed posea to the good order and bap hap happiness of the same and be he is ready to comply with all requisites of the act of congress to entitle him to citizenship zen ship and asks for bis his final certificate it t appears that upon the of october 1856 the applicant personally appeared before the judge of probate for the county of hamilton in the seale scale of ohio and stated himself to be a native of baden aged about forty six years bearing allegiance to the grand duke of baden and arid that he be emigrated from havre on the seventeenth day of november 1850 1852 and arrived at new orleans on the twenty fourth day of december of the a seme me year and that hr he intends to reside within the jurisdiction of the united states that lie he makes report of himself for naturalization and declared on oath that it is bona fide his intention to become a citizen of the united states of america and to forever renounce and abjure all allegiance and fidelity to every foreign prince potentate state and sovereignty whatever and particularly to the grand duke of baden which declaration cl was duly signed by the said smith and certified by john 13 judge and by b a deputy J M clark se if at 0 of f the court on the ad of september 1856 J af ca quark 1 fark tark was declared to be appointed deputy clerk of of f the probate court and commenced hia duties as such ruch and that he fie was duly acting as such on the of october 1856 when robe rohe he declaration declara hion lion was made by matthew smith of his intention to become a citizen ot of the united state states in the case of chadic vs chafic charge 2 what wheat the supreme court of 0 the united states says the power of naturalization is exclusive ly in congress Con grems grees but it has been repeat repeatedly ozz oft ro fis sis pis have power to a jurisdiction to be exercised by a State Court by bv the third section of the act of congress of april 1802 it is declared that every court of record in any individual state having com corn mon conlaw law jurisdiction and a seal and clerk or shall be considered a district court 12 and have jurisdiction in matters of naturalization urail by the constitution of ohio art 4 seca sec 7 it is declared there shall be established in each vach county a probate court which shall shail be a court of record open at all times and holden hoiden by one judge 21 ac and by the act pet of march 14 1853 ohio baws certain records are required to be kept by the probate court and a special record in lit each case or matter of all parties returns reports awards and judgments the constitution of the state declares the probate court shall be a court of record it Is not very well perceived how this declaration of can be disregarded there are numerous instances in which this court unquestionably tion ably exercises a common law jurisdiction in certain cases appeals lie flom hom interior tribunals to the court of probate where a jury is called and it is provided in certain cases that a trial before a j jury u in the court of probate ry shall be had in tb the same manner as the trial in civil cases in the court of common pleas and in cases of fraud the court of probate may set aside conveyances when made to defraud creditors it ia is very properly said by the court of appeals of kentucky in morgan vs dudley 15 B Monroe that the act if cf congress which authorizes state courts to admit aliens to become citizens does not as courts of general common law jurisdiction but aa as courts having common law jurisdiction it would be a singular construction of the act of congress to hold bold that the power of naturalization by the probate court cannot be exercised unless its jurisdiction be shown to apply to all questions arising at common law no such rule is sustains stainable ble bie on the contrary if the jurisdiction Is diction exercised by the probate judge be declared to be a common law power inthe constitution tit ution and an A it is in fact an appropriate power r to the object specified there is is io iio room for doubt on the subject bit rit it is said the probate court must have a seal and clerk or the seal I 1 i s provided by law and every probate judge has las power to appoint a deputy clerk or clerks who shall phail take the oath or oaths required and the judge ia is required to take security from them for the faithful performance of the dutie duties s of his deputy or deputies it ia is said in ex parte gregg gre vs curtis court rep 90 that a court of record without any clerk or or other recording officer distinct from the judge is not competent to receive an aliens ailenn preliminary declaration if this be admitted it does not affect the question for the probate judge has authority it y by law to appoint a deputy clerk or clerks who are required to make the records so that there is not only a clerk but a recording officer duly appointed in the case under tinder consideration the objection that the probate Proba teJu ju dge is his hia own clerk and that he cannot discharge the duties of judge and clerk at the same time is an ail e exceedingly cee technical objection and is without substance the law authorizes the judge of probate to appoint one or more deputy clerks the deputy clerk discharges his bis duty under the direction of the judge and is subject to his order in the same way as a clerk of a court ai ap tte the pointed anted in lit the ordinary mode by the judge the duties of the clerk are defined by lawand this being the case of what importance is it whether wb e ther be is the deputy or the principal clerk in either capacity be acts under tinder the probate judge and anti is responsible res on ble bie for forthe the performance for mance of his duties in in ex parte gladwill Glad bill 5 metcalf the court said abit it might he be urged with some plausibility that if the ludge judge is especially vested by law with the clerical authority the court has bag a clerk within the letter berand and equity of the statute but the statute of the state has expressly authorized the judge of probate to appoint one or more deau ties and in the language of the supreme court coutt of massachusetts above cited 1 tile the llie requisition in the act of congress that the court shall have a clerk or means I 1 think not that the court coult shall have an offic officer e r denominated clerk or but a re recording cordin g offic officer ery erg the duty of keeping a true record of its doings and afterward of authenticating them it ha hrs been said that a probate court Is lit a court of ec ecclesiastical ciesla clesla and not common law adi action and is not therefore buch such a court as the act of congress authorizes to naturalize strictly speaking we have hare no ecclesiastical courts in this country such stich courts in english law are held by the kings authority as su preme governor of the church for matters which chiefly concern religion we have probate and other courts which partake somewhat of the nature of ecclesiastical courts aut bui they are regulated by statutory provisions and the principles of the common law it is enough that the constitution of or the state of ohio declares that the court of probate shall be a court of record ll and it is so in fact and in law aa as it tup tip appears pears to me although some of its pow sr are not founded on common law I 1 think that oe probate court has bag jurisdiction under the act of congress to natu naturalize hallie tallie aliens alleno and that the declaration of matthew smith has been made in due form and hat that on complying with the remaining requisitions of 0 he act of congress the final certificate bt ol cit cita may be granted to him |