Bacon, J.
The only questions which arise on this certiorari are, first, whether the County Court of Lewis county had power to naturalize the alien on whose applica[371]*371cation the perjury was alleged to have been committed; second, whether the courts of this state have jurisdiction to punish for a violation of what is claimed to be a law of the United States; or, in other words, whether the offence charged was not an offence against the laws of the United States and not the laws of New-York.
On the first point, I entertain no doubt that the County Court has jurisdiction to naturalize aliens. The act of Congress adopts every state court as its agent, to do this service, that is a court of record, and has a common law jurisdiction, and a seal and clerk.
The County Court possesses all these powers and functions. If it has common law jurisdicton, that is sufficient.
It has such exclusive jurisdiction in the common law action of trespass, commenced in a Justice Court, when title to land comes in question; and although this tribunal is shorn of much of its power by the constitution of 1846 and the decision of the Court of Appeals under it, I believe it is not yet divested of this power, not to speak of others which savor of common law.
The second objection, it seems to me, does not arise in this case. No such objection was taken, on the trial, and no motion to quash the indictment was made on that ground. The only defect of jurisdiction alleged was the want of power in the County Court to naturalize. If the objection can be entertained, I am sorry to say that I fear that it must prevail, and a case of gross criminality will go “unwhipped of j ustice.” ■
The County Court acted as the agent of the government, and was, pro hac vice, a tribunal of the United States; and in United States v. Lathrop (17 John., 4) the Supreme Court of this state held that a state court has no jurisdiction of criminal offences against the United States. The offence being committed in a court of the United States was an offence which could only properly be charged, as is said by Platt, J., in his dissenting opinion, “as an offence commit[372]*372ted against the" state, a sovereign whose courts sit in judgment on the offender” The cases cited by the counsel of the people do not uphold the doctrine put forth in the point made by him, but apply to quite a different state of facts.
• I repeat that I regret to come to this conclusion, and shall be quite willing to yield my impressions to my brethren, -if they come to a different result.
As at present advised, my opinion is that the conviction must be reversed.
Pratt, J.
An important question in this case (although not absolutely necessary to be considered) is raised upon the part of the defendant in regard to the jurisdiction of the state courts to try him for the crime charged against him in this judgment. The question to be considered is,’ whether the offence charged is one against the laws of the United States, or one against the laws of the state.
There, are many crimes made punishable by the laws of the United States which are also made punishable by the laws of the state. In such cases it has been held that the state courts have jurisdiction of the crime. Forging the coin of the United States is an example of this class. As the constitution of the United States gives to congress an exclusive power to coin money and to regulate the value of the same, it would seem to follow- that congress is vested with the power to’ make laws to prevent its being counterfeited. But this would not necessarily take away the power from the state to make the crime also punishable under its laws. And, when the crime is thus made punishable by state laws, it follows as a matter of course that the state courts have jurisdiction to enforce those laws (8 Metc., 313 ; 9 Ohio, 133; 1 Doug., 267; 2 Const. R. S. C., 77; Curt. Com. on the Const., § 133.)
Théfe is another class of cases in which the state courts had jurisdiction'before the adoption of the federal constitution, such as crimes punishable at common law. Though [373]*373such crimes are brought under the cognizance of the federal courts by the constitution of the United States and the legislation of congress, yet, unless such jurisdiction is made exclusive by the terms of the constitution, or by the acts of congress, the state courts have concurrent jurisdiction to try them. (8 Metc., 313; 12 How., 284; Curt. Com., § 121.)
There is still another class' of cases where congress has attempted to vest in state courts jurisdiction of matters arising under the laws of congress. Interesting questions ‘have arisen in cases of this kind, and there is a great conflict of judicial authority whether jurisdiction in the federal courts is not necessarily exclusive in such cases. The preponderance of authority, at least in the state courts, seems to be against the power of congress to confer such jurisdiction, especially when the remedy necessarily involves proceedings either by action or by indictment. (1 Wheat., 336; 5 id., 49 ; Serg. Const. L., ch. 27; 17 John, 15 ; Virg. Cas., 321; 7 Conn., 239.)
There is another class of cases in which duties, judicial in in their nature, have been conferred in special cases upon state magistrates and courts, which it has been held that they are not bound to discharge, but may or may not discharge them at their own option, such as the arrest and examination of persons charged with crime, the arrest of fugitives from service under the act of 1793, and various other cases not necessary to enumerate. (Prigg v. Commonwealth, 16 Peters, 531.) The naturalizafcionlaws confer powers upon state courts of substantially the same character; and, without attempting to examine the question in regard to the power of the federal government to confer such jurisdiction upon state courts and magistrates, it seems to me quite clear that, in entertaining such proceedings, they are exclusively under the laws of the United States and should be deemed, quoad hoc, courts of the United States. The crime, therefore, with which the prisoner was charged in the indictment was, in my opinion, [374]*374a crime against the laws and sovereignty of the United States, and not against the laws and sovereignty of the state.
First. The subject of naturalization is exclusively within the jurisdiction of congress. The constitution confers upon congress the power to eastblish a uniform rule of naturalization, and, having passed laws establishing such rule, the states are excluded from interfering in any manner with the subject. (2 Wheat., 269; 2 Dal., 370; 3 Wash. C. C. R., 313; 5 Wheat., 49; 1 Kent, 426.
Second. The state courts, in entertaining these proceedings, are acting directly under the laws of the United States, and form a portion of the judicial agency of the federal government for carrying these laws into effect. They exercise in these proceedings no common law powers, but simply follow the express directions of the act of congress. (2 U. S. Stat. at Large,
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Bacon, J.
The only questions which arise on this certiorari are, first, whether the County Court of Lewis county had power to naturalize the alien on whose applica[371]*371cation the perjury was alleged to have been committed; second, whether the courts of this state have jurisdiction to punish for a violation of what is claimed to be a law of the United States; or, in other words, whether the offence charged was not an offence against the laws of the United States and not the laws of New-York.
On the first point, I entertain no doubt that the County Court has jurisdiction to naturalize aliens. The act of Congress adopts every state court as its agent, to do this service, that is a court of record, and has a common law jurisdiction, and a seal and clerk.
The County Court possesses all these powers and functions. If it has common law jurisdicton, that is sufficient.
It has such exclusive jurisdiction in the common law action of trespass, commenced in a Justice Court, when title to land comes in question; and although this tribunal is shorn of much of its power by the constitution of 1846 and the decision of the Court of Appeals under it, I believe it is not yet divested of this power, not to speak of others which savor of common law.
The second objection, it seems to me, does not arise in this case. No such objection was taken, on the trial, and no motion to quash the indictment was made on that ground. The only defect of jurisdiction alleged was the want of power in the County Court to naturalize. If the objection can be entertained, I am sorry to say that I fear that it must prevail, and a case of gross criminality will go “unwhipped of j ustice.” ■
The County Court acted as the agent of the government, and was, pro hac vice, a tribunal of the United States; and in United States v. Lathrop (17 John., 4) the Supreme Court of this state held that a state court has no jurisdiction of criminal offences against the United States. The offence being committed in a court of the United States was an offence which could only properly be charged, as is said by Platt, J., in his dissenting opinion, “as an offence commit[372]*372ted against the" state, a sovereign whose courts sit in judgment on the offender” The cases cited by the counsel of the people do not uphold the doctrine put forth in the point made by him, but apply to quite a different state of facts.
• I repeat that I regret to come to this conclusion, and shall be quite willing to yield my impressions to my brethren, -if they come to a different result.
As at present advised, my opinion is that the conviction must be reversed.
Pratt, J.
An important question in this case (although not absolutely necessary to be considered) is raised upon the part of the defendant in regard to the jurisdiction of the state courts to try him for the crime charged against him in this judgment. The question to be considered is,’ whether the offence charged is one against the laws of the United States, or one against the laws of the state.
There, are many crimes made punishable by the laws of the United States which are also made punishable by the laws of the state. In such cases it has been held that the state courts have jurisdiction of the crime. Forging the coin of the United States is an example of this class. As the constitution of the United States gives to congress an exclusive power to coin money and to regulate the value of the same, it would seem to follow- that congress is vested with the power to’ make laws to prevent its being counterfeited. But this would not necessarily take away the power from the state to make the crime also punishable under its laws. And, when the crime is thus made punishable by state laws, it follows as a matter of course that the state courts have jurisdiction to enforce those laws (8 Metc., 313 ; 9 Ohio, 133; 1 Doug., 267; 2 Const. R. S. C., 77; Curt. Com. on the Const., § 133.)
Théfe is another class of cases in which the state courts had jurisdiction'before the adoption of the federal constitution, such as crimes punishable at common law. Though [373]*373such crimes are brought under the cognizance of the federal courts by the constitution of the United States and the legislation of congress, yet, unless such jurisdiction is made exclusive by the terms of the constitution, or by the acts of congress, the state courts have concurrent jurisdiction to try them. (8 Metc., 313; 12 How., 284; Curt. Com., § 121.)
There is still another class' of cases where congress has attempted to vest in state courts jurisdiction of matters arising under the laws of congress. Interesting questions ‘have arisen in cases of this kind, and there is a great conflict of judicial authority whether jurisdiction in the federal courts is not necessarily exclusive in such cases. The preponderance of authority, at least in the state courts, seems to be against the power of congress to confer such jurisdiction, especially when the remedy necessarily involves proceedings either by action or by indictment. (1 Wheat., 336; 5 id., 49 ; Serg. Const. L., ch. 27; 17 John, 15 ; Virg. Cas., 321; 7 Conn., 239.)
There is another class of cases in which duties, judicial in in their nature, have been conferred in special cases upon state magistrates and courts, which it has been held that they are not bound to discharge, but may or may not discharge them at their own option, such as the arrest and examination of persons charged with crime, the arrest of fugitives from service under the act of 1793, and various other cases not necessary to enumerate. (Prigg v. Commonwealth, 16 Peters, 531.) The naturalizafcionlaws confer powers upon state courts of substantially the same character; and, without attempting to examine the question in regard to the power of the federal government to confer such jurisdiction upon state courts and magistrates, it seems to me quite clear that, in entertaining such proceedings, they are exclusively under the laws of the United States and should be deemed, quoad hoc, courts of the United States. The crime, therefore, with which the prisoner was charged in the indictment was, in my opinion, [374]*374a crime against the laws and sovereignty of the United States, and not against the laws and sovereignty of the state.
First. The subject of naturalization is exclusively within the jurisdiction of congress. The constitution confers upon congress the power to eastblish a uniform rule of naturalization, and, having passed laws establishing such rule, the states are excluded from interfering in any manner with the subject. (2 Wheat., 269; 2 Dal., 370; 3 Wash. C. C. R., 313; 5 Wheat., 49; 1 Kent, 426.
Second. The state courts, in entertaining these proceedings, are acting directly under the laws of the United States, and form a portion of the judicial agency of the federal government for carrying these laws into effect. They exercise in these proceedings no common law powers, but simply follow the express directions of the act of congress. (2 U. S. Stat. at Large, 154.) They should be deemed, therefore, as acting, in such proceedings, as courts of the United States; and such I presume would be the undoubted construction of the acts of magistrates in the examination of persons accused of crime, under the laws of the United States, or fugitives from service under the act of 1793 ; and yet there is no reason why the same rule should not apply to naturalization proceedings.
Third. These proceedings, being under the laws of the United States, and part of the necessary judicial agency provided by those laws for canying them into effect, it would seem to follow that false swearing, by a person giving material testimony in those proceedings, must necessarily constitute an offence against tho laws of the United States, and, if so, he must be punishable under the laws of the United States.
' The prohibitions against perjury, in the statutes of our state, manifestly contemplate perjury in the state courts, or in proceedihgs before magistrates under the state laws, and not under the laws of another state. In The State v. Adams (4 Blackf., 146) it was held “that if an affidavit [375]*375be made under an act of congress, relative to the sale of public lands, and the party making it commit perjury, he may be punished under the act of congress prohibiting the offence, but the courts of the state had no jurisdiction.” The statute of Indiana provides that “ any person who willfully, corruptly and falsely makes an affidavit, &c., should be deemed guilty of perjury.” (Rev. Code 1831, p 186.) This provision is quite as general as the provisions of our statute against the commission of perjury, yet the court in that case held that it was not an offence against the laws of that state.
It will be seen that perjury is made an offence by the laws of the United States, and that there is no reservation of jurisdiction in the state courts of that offence. ■ It is provided by the act of 1790 (ch. 9) that “If any person shall willfully and corruptly commit peijury, on his or her oath or affirmation, in any suit or controversy, matter or cause, depending in any of the courts of the United States, or in any'deposition taken pursuant to the laws of the United States, every person offending shall suffer,” &c. By act of September 24, 1789 (ch. 20), exclusive jurisdiction is given to the Circuit Courts of the United States “ of all crimes and offences cognizable under the laws of the United States, except when the act otherwise provides or the laws of the United States shall otherwise direct.” I have found no statute of the United States conferring jurisdiction upon the state courts to punish for the crime of p.eijury, under the laws of Congress; although, by subsequent acts, this exclusive jurisdiction has been taken away in regard to some other crimes.
If I am right, therefore, in the position that the court, in these proceedings, is to be deemed a court of the United States, there can be no doubt but that the exclusive jurisdiction of the crime charged in the indictment in this case was in the federal courts, and that the Lewis County Oyer and Terminer had no jurisdiction of it.
[376]*376But, independent of the question of jurisdiction, I think the conviction should be reversed. The laws of Congress require the application to be made to the court, and the proof of five years’ previous residence must be taken in open court. It must also be common law evidence, taken by the oral examination of the witness. Previously prepared affidavits are not competent. Such was the construction given to the act hy this court in 7 Hill (137), and 18 Barb. (444). In this case there was no proof that any application was made to the court at all, or that the witness was ever sworn in open court, or that the court, in any manner, passed upon the matter. No presumption can be raised in favor of the regularity of the proceedings' until it be proved that such proceedings were pending before the court.' Until jurisdiction is shown, the presumptions are all the other way. It was therefore necessary to prove, in the first place, the pendency of the proceedings before that court. Before that was done there could be no presumption that the witness was examined orally, and his testimony afterwards put in the form of affidavits. Affidavits found on file were clearly not competent to prove the pendency of such- proceedings, especially as there is no law requiring the examination to be taken in writing and filed; and, until the pendency of the proceedings is proved, the certificate of the clerk to these unauthorized affidavits does not prove anything. It is all in the nature of hearsay testimony.
The minutes of the court should have been produced, showing the pendency of the proceedings and the actual oral examination of the witness, before it was competent to show that his testimony was false.
. I think, therefore, that the exception to the introduction of the affidavit was well taken, and the conviction, for this reason, should be reversed.
Conviction reversed.