OPINION OF THE COURT BY
WILDER, J.
(Hartwell, J., dissenting.)
Defendant was indicted for murder by a grand jury composed of sixteen members at the August, 1905, term of the-circuit court of the fourth circuit. He filed a plea in abatement, to the effect that eight of the members of the grand jury were aliens and therefore ineligible and incompetent to act. It appeared that some time between June 14, 1900, and August 1,. 1905, each of said eight grand jurors being entitled to be naturalized applied for a judgment of naturalization to the circuit-court of the fourth circuit, and upon such applications being considered the court pronounced upon each of the applicants a judgment of naturalization.
The following reserved questions were certified to this court £
1. Had the circuit court of the fourth circuit of the Territory of Hawaii between June 14, 1900, and August 1, 1905,. jurisdiction to pronounce judgments of naturalization upon the-eight aliens whose names are set forth in defendant’s amended plea in abatement?
[296]*2962. Was the grand jury empaneled and sworn for the August, •1905, term of the circuit court of the fourth circuit comprising sixteen members, eight of whom were naturalized as aforesaid, a legal body under the laws of this Territory .and competent to find a legal indictment against the defendant ?
3. Shall the defendant be held to answer the indictment thus found by said grand jury?
The main question for decision is whether under the naturalization laws of the United States and the Organic Act of this Territory the circuit courts of this Territory have power to naturalize.
Section 2165 of the revised statutes of the United States provides that aliens may be naturalized by a circuit or district court of the United States, a district or supreme court of a territory, or a court of record of any state having common law jurisdiction and a seal and clerk.
Section 81 of the Organic Act of this Territory provides as follows: “That the judicial power of the Territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. And until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force except as herein otherwise provided.”
Section 86 of the same act provides, among other things, as follows: “That there shall be established in said Territory •a district court to consist of one judge, who shall reside therein and be called the district judge. * * * Said court shall have, in •addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizable in a circuit ■court of the United States, and shall proceed therein in the -same manner as a circuit court. * * * The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several states shall govern [297]*297in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii.”
Prior to its annexation to the United States the Republic of Hawaii had a fully organized government, including a judicial system, consisting of courts of original and appellate jurisdiction, whose powers were defined by the constitltion and statutes of the republic.
The relations between the federal courts and the courts of this Territory are similar to those between federal courts and state courts. Equitable Life Assurance Society v. Brown, 187 U. S. 308; Ex parte Wilder’s S. S. Co., 183 U. S. 545; Hind v. Wilder’s S. S. Co., 13 Haw. 174. As was said in the last case cited congress “organized the courts and distributed their jurisdiction in this Territory as it has done in no other territory — namely, on the lines of federal and state courts in the several states.” Page 182. On page 183 the reason for this was suggested as follows: “The fact that this Territory is so far removed from the mainland is ample to explain why congress intended to make the judgments of our supreme court final except in cases in which a federal question was involved, and to permit such cases to be taken up only as they would be taken up from a state court, that is, by a writ of error from the supreme court of the United States.” That reason was approved in Equitable Life Assurance Society v. Brown, supra, at page 551, as follows: “Congress may have considered that, owing to the great distance of the Territory of Hawaii from the continent, the appellate jurisdiction over that territory should extend only, as in the case of the several states, to judgments against a right claimed under the constitution, laws or treaties of the United States.” But whatever the reasons were, the effect was as stated.
Congress not having established within this Territory the ordinary territorial courts, and having provided a system similar to that in the several states, it follows that the jurisdiction to naturalize in this Territory should be and is the same as in a state, namely, by a court of record having common law juris[298]*298diction and a seal and clerk. Each of our circuit courts is a court of record having common law jurisdiction and a seal and clerk. That this was the intention of congress we have no doubt, when it is considered that congress established in this Territory a district court of the United States, the same as is established in every state of the union, and which has, of course, power to naturalize.
The privilege of becoming an American citizen is a great one, but the number of courts with jurisdiction to naturalize should not be limited unless congress expressly or by necessary intendment so provides. The tendency of congressional legislation on the subject has been to enlarge rather than to diminish the number of courts which could naturalize. See Ex parte Cregg, 2 Curt. 98. The very reason for investing congress with power to establish a uniform rule of naturalization was to guard against a too narrow instead of a too liberal mode of conferring citizenship. Collet v. Collet, 2 Dall. 294. The statute intends naturalization certificates to issue from courts of record. Spratt v. Spratt; 4 Pet. 393, 408. See also Mutual Benefit Life Insurance Company v. Tisdale, 91 U. S. 245. All courts look with favor on proceedings to admit aliens to citizenship. McCarthy v. Marsh, 5 N. Y. 284. See also Ex parte Butterworth, 1 Woodb. & M. 223.
There is also considerable force in the argument that the courts in this Territory having practically the same jurisdiction as the ordinary territorial district courts, namely, the district court of the United States and the circuit courts of the Territory, have the power to naturalize. In Ex parte Lathrop, 118 U. S. 113
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OPINION OF THE COURT BY
WILDER, J.
(Hartwell, J., dissenting.)
Defendant was indicted for murder by a grand jury composed of sixteen members at the August, 1905, term of the-circuit court of the fourth circuit. He filed a plea in abatement, to the effect that eight of the members of the grand jury were aliens and therefore ineligible and incompetent to act. It appeared that some time between June 14, 1900, and August 1,. 1905, each of said eight grand jurors being entitled to be naturalized applied for a judgment of naturalization to the circuit-court of the fourth circuit, and upon such applications being considered the court pronounced upon each of the applicants a judgment of naturalization.
The following reserved questions were certified to this court £
1. Had the circuit court of the fourth circuit of the Territory of Hawaii between June 14, 1900, and August 1, 1905,. jurisdiction to pronounce judgments of naturalization upon the-eight aliens whose names are set forth in defendant’s amended plea in abatement?
[296]*2962. Was the grand jury empaneled and sworn for the August, •1905, term of the circuit court of the fourth circuit comprising sixteen members, eight of whom were naturalized as aforesaid, a legal body under the laws of this Territory .and competent to find a legal indictment against the defendant ?
3. Shall the defendant be held to answer the indictment thus found by said grand jury?
The main question for decision is whether under the naturalization laws of the United States and the Organic Act of this Territory the circuit courts of this Territory have power to naturalize.
Section 2165 of the revised statutes of the United States provides that aliens may be naturalized by a circuit or district court of the United States, a district or supreme court of a territory, or a court of record of any state having common law jurisdiction and a seal and clerk.
Section 81 of the Organic Act of this Territory provides as follows: “That the judicial power of the Territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. And until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force except as herein otherwise provided.”
Section 86 of the same act provides, among other things, as follows: “That there shall be established in said Territory •a district court to consist of one judge, who shall reside therein and be called the district judge. * * * Said court shall have, in •addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizable in a circuit ■court of the United States, and shall proceed therein in the -same manner as a circuit court. * * * The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several states shall govern [297]*297in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii.”
Prior to its annexation to the United States the Republic of Hawaii had a fully organized government, including a judicial system, consisting of courts of original and appellate jurisdiction, whose powers were defined by the constitltion and statutes of the republic.
The relations between the federal courts and the courts of this Territory are similar to those between federal courts and state courts. Equitable Life Assurance Society v. Brown, 187 U. S. 308; Ex parte Wilder’s S. S. Co., 183 U. S. 545; Hind v. Wilder’s S. S. Co., 13 Haw. 174. As was said in the last case cited congress “organized the courts and distributed their jurisdiction in this Territory as it has done in no other territory — namely, on the lines of federal and state courts in the several states.” Page 182. On page 183 the reason for this was suggested as follows: “The fact that this Territory is so far removed from the mainland is ample to explain why congress intended to make the judgments of our supreme court final except in cases in which a federal question was involved, and to permit such cases to be taken up only as they would be taken up from a state court, that is, by a writ of error from the supreme court of the United States.” That reason was approved in Equitable Life Assurance Society v. Brown, supra, at page 551, as follows: “Congress may have considered that, owing to the great distance of the Territory of Hawaii from the continent, the appellate jurisdiction over that territory should extend only, as in the case of the several states, to judgments against a right claimed under the constitution, laws or treaties of the United States.” But whatever the reasons were, the effect was as stated.
Congress not having established within this Territory the ordinary territorial courts, and having provided a system similar to that in the several states, it follows that the jurisdiction to naturalize in this Territory should be and is the same as in a state, namely, by a court of record having common law juris[298]*298diction and a seal and clerk. Each of our circuit courts is a court of record having common law jurisdiction and a seal and clerk. That this was the intention of congress we have no doubt, when it is considered that congress established in this Territory a district court of the United States, the same as is established in every state of the union, and which has, of course, power to naturalize.
The privilege of becoming an American citizen is a great one, but the number of courts with jurisdiction to naturalize should not be limited unless congress expressly or by necessary intendment so provides. The tendency of congressional legislation on the subject has been to enlarge rather than to diminish the number of courts which could naturalize. See Ex parte Cregg, 2 Curt. 98. The very reason for investing congress with power to establish a uniform rule of naturalization was to guard against a too narrow instead of a too liberal mode of conferring citizenship. Collet v. Collet, 2 Dall. 294. The statute intends naturalization certificates to issue from courts of record. Spratt v. Spratt; 4 Pet. 393, 408. See also Mutual Benefit Life Insurance Company v. Tisdale, 91 U. S. 245. All courts look with favor on proceedings to admit aliens to citizenship. McCarthy v. Marsh, 5 N. Y. 284. See also Ex parte Butterworth, 1 Woodb. & M. 223.
There is also considerable force in the argument that the courts in this Territory having practically the same jurisdiction as the ordinary territorial district courts, namely, the district court of the United States and the circuit courts of the Territory, have the power to naturalize. In Ex parte Lathrop, 118 U. S. 113, the legislature of the Territory of Arizona created and established a county court with concurrent jurisdiction with the district courts, the provision in the organic law of Arizona being that the “judicial power of Arizona shall be vested in a supreme court and such inferior courts as the legislative council may by law prescribe.” The power of naturalization was expressly given to this county court. It was held this court [299]*299was an inferior court and that its jurisdiction could be made concurrent with that of every other court inferior to the supreme court. No comment was made upon this express power of naturalization. But, in view of the conclusion reached that any court of record in this Territory having common law jurisdiction and a seal and clerk has power to naturalize, it is unnecessary to say whether our circuit courts are territorial district courts within the meaning of the naturalization statute.
M. F. Prosser, Deputy Attorney General, for the Territory,
Carl 8. Smith for defendant.
Defendant further contends that, even if the circuit court had jurisdiction to naturalize, still the grand jury was improperly constituted, because it does not appear that the eight members of the grand jury in question were naturalized before they were drawn to serve and that they might have been naturalized after having heen selected. But the burden is on the defendant to show that they were aliens at the time they were drawn, and, as he has not done that, the presumption is that they were citizens at that time.
Each of the three reserved questions is answered in the affirmative.