STUDIES IN CONSTITUTIONAL LAW
A TREATISE ON AMERICAN CITIZENSHIP
OF CITIZENSHIP GENERALLY
We shall therefore proceed to ascertain the origin and define the nature and quality of citizenship enjoyed by individuals who are subject to the jurisdiction of the United States, either as citizens of the United States, or as citizens of some particular component State, Territory, or possession of the United States.
CITIZENSHIP: Definition of Citizenship.
The latest approved definition of the term citizenship is that found in the Standard Dictionary (1898), which describes, it as "the status of a citizen with its rights and privileges." (1) The status of a citizen implies the existence of -
 A political body established to promote the general welfare and collective, as well as individual, rights of those composing it.
 Individuals who have established, or submitted themselves to the dominion of, that political body.(2)
 Such benefit from, or participation in, the administration of that political body by the individuals composing it, that they may be designated as citizens, and not as mere subjects of a despot or an absolute monarch under whom they have no voice in administration.
The same authority above quoted defines a citizen as "a member of a nation or sovereign state, especially a republic; one who owes allegiance to a government and is entitled to protection from it." That definition is broad enough to make every subject a citizen of the government to which he owes allegiance, and from which he receives protection; but the term citizen, as it is commonly understood, implies membership of a political body in which the individual enjoys popular liberty to a greater or less degree.(3) It does not necessarily follow from this definition, that the grade or quality or privileges of citizenship must be identical in all citizens, even in republican governments. In the Roman government, a citizen might or might not be invested with all the civil privileges of the government.(4) In Many cases arising under our system, it has been repeatedly decided that the bestowal Of political Privileges upon an individual is not essential to Constitute him a citizen(5)
Ordinarily the term citizen, applied to the individual unit in any government, implies that he enjoys a greater degree of participation in the affairs of his government than would be implied if he were referred to as a subject.
In a constitutional monarchy like Great Britain, the individual units composing it are referred to indifferently as citizens or as subjects. In an absolute monarchy like Russia, the idea of subjection to the ruler overshadows that of citizenship, and the individual subject is seldom referred to as a citizen, except in diplomatic intercourse between his government and other nations.
In a free democracy like the United States, where there is no sovereign and no subject, the units composing the political body are properly designated as citizens. This subject is discussed in a most interesting way by the Supreme Court of the United States in the case of Minor v. Happersett.(6)
American Citizenship - Its Origin and Kinds.
In the seventeenth and eighteenth centuries, the British government planted or acquired thirteen distinct colonies on the continent of North America, and governed them, prior to July 4, 1776, under the system of English laws as applied by the colonial policy of Great Britain, with George III as a constitutional monarch. Each of these colonies had been founded or acquired separately and at a different time, and each was governed under its own distinct charter or commission. The inhabitants of all the colonies were British citizens or subjects. The several local governments, under which the colonies respectively conducted their domestic affairs, were not independent political societies, of which they might be said to be citizens. While they were inhabitants of their respective colonies, they were citizens of Great Britain, and their local governments were mere dependencies, acting under concessions from the parent government A comparison of the several colonial administrations of these colonies will make plain at once how different were their several domestic administrations. The colonial organization of Massachusetts was altogether different from that of Maryland; that of Virginia altogether different from that of Rhode Island. The charters of the colonial organizations of South Carolina and New York had little resemblance to each other, and so on with all the colonies.
The mother country, while exacting paramount allegiance to herself from all her colonies, had, in her dealings with them, permitted each to indulge its idiosyncrasies in matters of local concern, with so little regard to uniformity of administration, that the thirteen colonies grew up with little of similitude in their charter rights, and little in common in their local forms of government. What they had in common was their British citizenship, and their common grievances against the parent government, which, as they conceived, had deprived them of the right of local self-government. This British citizenship, in common, was the germ of their united action, and afterwards became the foundation of a new citizenship, known as American citizenship, on which all citizenship, whether of the United States, or of the States and Territories and possessions subject to its jurisdiction, now rests. And this brings us to -
The thirteen independent American colonies by a joint Declaration of Independence dated July 4, 1776, asserted their common purpose to maintain that they were free, independent, and sovereign States. That declaration, if it could be successfully maintained, carried with it as a result, that their respective inhabitants were no longer citizens or subjects of Great Britain, but were thenceforth citizens of the States in which they respectively resided. England resisted this contention until September 3, 1783, at which time she entered into a definitive treaty of peace with the representatives of these colonies, recognizing the colonies, name by name, as free, independent, and sovereign States.
After thus gaining their independence, some of the States proceeded to adopt new constitutions forthwith, conforming their government to their changed conditions; while others found their royal charters so well adapted to a free government, that they continued to live under them for many years. The most remarkable instance of this is the State of Rhode Island, which continued to govern itself under the forms of its royal charter until the year 1843. Even then, the attempt to adopt a new constitution resulted in a domestic conflict, familiarly known as Dorr's Rebellion, for a full account of which see the opinion of the Supreme Court in the case of Luther v. Borden.(7)
While the revolutionary struggle lasted, the colonies, calling themselves States, cooperated with each other through the device of a league under the name of the United States, represented by a Continental Congress. The objects for which this league and congress were created, were to assert and prosecute measures in common for attaining the independence of the States. Through this league, they also bound themselves by mutual obligations, not to negotiate for peace, or for any other purpose, with the parent country, save through the appointees of the Continental Congress; and the peace which was finally negotiated was brought about by a treaty entered into on behalf of the United Colonies, by commissioners appointed by the Continental Congress.
But the independence demanded by the colonies and the citizenship recognized by Great Britain were the independence and citizenship of thirteen sovereign and independent States, and not of any one national political body. This could not have been otherwise, for the words "United States," while they were employed in the Declaration of Independence and in the Articles of Confederation under which the revolutionary struggle was conducted, were manifestly used in a plural sense, as expressing the States united, and the compact entered into between the colonies shows, upon its face. that it was not entered into to create a new political body reaching or operating upon the unit of the citizen. All the powers possessed by the confederated government were derived from and to be exercised upon and through the legislatures which created it, representing States and not individuals. Any effort of the federal authority to command or enforce allegiance to it directly from the citizens of those States, save in a few particulars provided for in the Articles of Confederation, would have aroused indignant protests from the States, and would, perhaps, have resulted in a dissolution of the confederacy.
The date insisted upon by the thirteen States, as that at which their inhabitants ceased to be colonial subjects of Great Britain, and became citizens of their respective States, was July 4,1776. The English authorities, on the other hand, fixed September 3, 1783, the date of the definitive treaty acknowledging the independence of the States, as the true date from which to reckon.(8) This question has long since ceased to be of any importance as bearing upon any property rights, and in so far as it relates to whether State citizenship antedated national citizenship, it makes no difference which date is assumed to be correct; for the relations of the States to the federal compact were substantially the same in 1776 as in 1783.
The Declaration of Independence affirmed that the United Colonies ought to be free and independent States. The Articles of Confederation were agreed upon by delegates November 15, 1777. After announcing a name for the confederacy between the States, it proceeded to declare that each State retained "its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled." The Congress was composed of delegates chosen annually, as State legislatures might direct, and the delegates were maintained by the States. In determining questions in the Congress, each State had one vote. The duty of raising their respective quotas of troops was imposed upon the States, and the privilege of naming all officers of or under the rank of colonel. The States undertook to supply all funds to the common treasury, and the taxes for defraying the expenses of the confederacy were to be laid and levied by the state legislature, each State paying her proportion. There was no president or common ruler over the confederacy of States, and the limited federal authority conferred upon Congress by the Articles of Confederation was intrusted to the control and direction of a committee of Congress.
Such was the confederacy existing between the States when Great Britain acknowledged them as independent sovereign States. It requires little argument to demonstrate that a mere agency such as this, operating under a limited authorization and without any power to levy taxes or draft troops, was not a political body entitled to claim that any individual was its citizen, and while State citizenship necessarily followed at once to the inhabitants of the colonies, respectively, upon the acknowledgment of their independence, no citizenship of the United States was recognized or even existed.
The writings of Mr. Hamilton and Mr. Madison, preserved in The Federalist, written long after the acknowledgment of the independence of the colonies, are full of complaints against the Articles of Confederation, on this score. They are appeals for a change from this condition, and urge upon the people to remedy these defects by adopting the proposed constitution and creating the new citizenship. The Constitution of the United States was proposed September 17, 1787, and the operations of the government began under it March 4, 1789. The Federalist papers were written in that interval, urging the adoption of the Constitution by the States. In the fifteenth paper of The Federalist,(9) Mr. Hamilton discusses " the insufficiency of the present confederation to the preservation of the Union," as follows:
"The great and radical vice in the construction of the existing confederation is the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. . . . Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that although in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. If we still adhere to the design of a national government . . . we must extend the authority of the Union to the Persons of the citizens the only proper objects of government."
Again, in the twenty-third paper (10) the same illustrious authority declared:
"If we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America."
The above citations, which are but two of many, are sufficient to demonstrate that under the peculiar organization of the United States, as it was originally formed, the powers or authority of the general government did not extend to individuals, save in a few isolated instances, and that consequently the only real citizenship was that of States. Mr. Hamilton, in both his references to citizens, spoke of them, not as citizens of the United States, but, as citizens of America, doubtless adopting that form of expression as more correct in describing the citizens of the States generally.
Until the ratification of the Constitution of the United States by nine States, it was a nullity. New Hampshire was the ninth State to ratify. The date of its action was June 21, 1788. Virginia and New York ratified the Constitution a few days later, and before the date fixed for commencing the operations of the government. Thus, for the first time, there was such a thing as citizenship of the United States. That citizenship did not extend to North Carolina until January 28, 1790, or to Rhode Island until June 1, 1790, for those States delayed their ratifications until after the operations of the government had begun.
In the United States custom house at New York, one may see a list of the vessels which entered the port of New York during the first year after the Constitution of the United States went into effect, and in that list, entered as vessels arriving from "foreign ports," are several ships from Rhode Island.
Thus we see that, in eleven of the original States, State citizenship antedated Federal citizenship over five years, and in two other States nearly seven years.
Speaking of the interim between the acknowledgment of the independence of the colonies and the adoption of the Constitution, John Fiske, in his History of the United States, says:(11)
"Perhaps the only thing that kept the Union from falling to pieces in 1786 was the Northwestern Territory, which George Rogers Clark had conquered in 1779, and which skilful diplomacy had enabled us to keep when the treaty was drawn in 1782. Virginia claimed this territory and actually held it, but New York, Massachusetts, and Connecticut also had claims upon it. It was the idea of Maryland that such a vast region ought not to be added to any one State, or divided between two or three of the States, but ought to be the common property of the Union. Maryland had refused to ratify the Articles of Confederation until the four States that claimed the Northwestern Territory should yield their claims to the United States. This was done between 1780 and 1786, and thus, for the first time, the United States government was put in possession of valuable property which could be made to yield an income and pay debts. This piece of property was about the first thing in which all the American people were alike interested, after they had won their independence."
In the light of the above historical facts, it is not strange that the discussions, prior to the great Civil War, on the question whether paramount allegiance was due to their State, or to their Nation, by the citizens of the States respectively, led to a difference of opinion on that question between citizens.
Citizenship of the Northwest Territory.
The United States, as constituted under the Articles of Confederation, having come into possession of the large unsettled territory above referred to, by the cession of Great Britain and the subsequent cession of their rights by the several States which laid claim to it the Continental Congress undertook to pass, in 1787, the famous ordinances laying down certain fundamental laws for the government of that territory, and in States which, might thereafter be formed out of that territory. The States of Ohio, Indiana, Illinois, Michigan, and Wisconsin were subsequently erected and admitted into the Union, and those five embrace what was then known as the Northwest Territory.
Of the action of the Continental Congress in assuming to pass these ordinances, Mr. Madison says in the thirty-seventh paper of The Federalist, (12) that in proceeding to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States should be admitted into the confederacy, the Congress acted "without the least color of constitutional authority." The justification for this action stated by him was: "The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits." From this necessity of violating the constitutional authority, he proceeded to argue: "But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed."
Whether the Continental Congress did or did not possess power to enact the ordinances of 1787, the necessity that some one should take steps to that end was manifest to every one, and the action of the Continental Congress was not only acquiesced in by all the States, but the ordinance has come down to posterity as one of the wisest charts of government ever framed. This territory had come into the possession of the United States under the following circumstances:
When the treaty of peace was negotiated between England and the United States, the boundary lying between the English possessions and the country whose independence was acknowledged, was fixed as running through the centres of Lakes Ontario, Erie, Huron, and Superior, and thence westward through the Lake of the Woods to the Mississippi, whereby the vast and rich domain lying in between the Great Lakes and the Ohio and Mississippi rivers became a part of the country acknowledged as independent. Settlers rapidly flocked to that territory, and conditions there called for the organization of some sort of political body for its government. Neither the Federal government, nor the State of Virginia, had been able to discharge their debts to Revolutionary soldiers, and Virginia, before the cession of her territory to the United States, had issued many military land grants in this territory to her soldiers. When the Continental army at Newburg threatened to march upon Philadelphia in the year 1783, because it had not been paid, its violence was allayed by the assurances of General Washington that he would do all in his power to induce the government to make provision for discharging its obligations to the soldiers, in part at least, by military land grants in the Northwest Territory. Pursuant to that pledge, Congress did make large land grants in the Northwest Territory, in that portion now known as Ohio, to Revolutionary soldiers. After the armies were disbanded, large colonies of people from the original States promptly settled in the Ohio territory, under the leadership of Paul Carrington of Virginia, and General Rufus Putnam of Connecticut, and thus it came about that at the time of the passage of this famous ordinance, a considerable and representative body of unorganized people were in occupancy of the Northwest Territory, demanding some form of government and some right of representation.
The ordinance passed by the Continental Congress pursuant to this urgency, announced certain fundamental articles which were to rest upon any and all governments formed in the territory, and declared that the obligation to adopt these fundamental principles should be regarded as a compact between the original States and the people and States in said territory, and that, having been adopted, they should forever remain unalterable, unless by common consent.
It will be noted, that Congress was so doubtful of its own powers, that it made the compact obligatory, not between the United States and the people of this territory, but between the original States and the people.
It is unnecessary to enumerate at length the fundamental principles laid down for the government of the Northwest Territory.(13) The Act provided for the erection of the territory into a district; for a law of descents; and for a form of civil government, under a governor and secretary appointed by Congress. It gave the people of the territory the right to elect a general assembly by popular election. In prescribing the qualifications of a candidate, and of voters, it required that they should have been citizens of one of the United States for a certain time. It gave the territorial legislature the right to elect a delegate to Congress, who was to possess a seat with the right of debate, but no vote. Without going into further details of this government, it is sufficient to say that it was acceptable to the people and a remarkable spectacle of government. For the United States, which had no citizens of its own, undertook to create and erect a government of citizens, and to prescribe , to the minutest detail, their obligations of citizenship. It is inconceivable that the Continental Congress would have made the qualifications of candidates and voters depend on their citizenship of one of the original States, if there had been such a thing at the time as citizenship of the United States. The only reference in the Ordinance of 1787 to "citizens of the United States" is in Article IV. That is manifestly a reference to conditions in future, made with the knowledge that the Constitution was then in process of formation and likely to be adopted, whereby citizens of the United States would come into existence.
Thus we have the second class of American citizenship, to wit, citizenship of the Northwest Territory, both of which classes of citizenship antedated citizenship of the United States.
Citizenship of the United States.
When the Constitution was ratified by nine of the States composing the old confederacy, and not until then, was there an actual and real citizenship of the United States, however much the term may have been theretofore loosely employed. The States ratified the Constitution in the following order:
1. Delaware, December 7,1787;
2. Pennsylvania, December 12, 1787;
3. New Jersey, December 18, 1787;
4. Georgia, January 2,1788;
5. Connecticut, January 9, 1788;
6. Massachusetts, February 6, 1788;
7. Maryland, April 28,1788;
8. South Carolina, May 23, 1788;
9. New Hampshire, June 21,1788.
The Constitution provides, Article VII, that the ratification of the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. The Constitution became an established form of government June 21, 1788, in nine States, and the remaining States, Virginia, New York, North Carolina, and Rhode Island, when they ratified it, came into a government already established. This attitude of Virginia and New York was a technical rather than an actual delay, for Virginia ratified the Constitution June 26, 1788, and New York July 26, 1788, and the operations of the government under the new Constitution did not begin until March 4, 1789.
The radical changes in the form of the federal compact altered the status of the people subject to its jurisdiction, so that, whereas they had theretofore been only citizens of the States, they now became also citizens of the United States.(14) The first of these organic changes was the provision of Article VI, Clause 2, of the Constitution, which declared the laws of the United States made pursuant thereto, and all treaties made under its authority, to be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
In the next place, the government created by the Constitution was clothed with ample powers, independent of the States, to maintain itself, and to reach, command, direct, and, if need be, to punish, every individual subject to its jurisdiction.
Without going into an enumeration of those powers, it is sufficient to say that the government created by the Constitution became a government with citizens of its own, and was no longer a mere government over States.
Yet radical as was this change in the nature and constitution of the federal government, the new citizenship is referred to only three times in the entire instrument, as it was originally framed, and then only incidentally. The first reference is in Article 1, Section 2, Paragraph 2. In describing the qualifications of a member of the House of Representatives, one of the qualifications was declared to be, that be should have been "seven years a citizen of the United States." The second reference is in Article 1, Section 3, Clause 3, which makes one of the qualifications of a senator, that he should have been "nine years a citizen of the United States." The third reference is in Article II, Section 1, Clause 5, which enacted that "no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President."
If these requirements had been literally conformed to, there could have been no election for representatives to Congress for seven years after the adoption of the Constitution, and no one would have been eligible as a senator for nine years thereafter. The language employed by the convention was less careful than that which had been used by Congress in July of the same year, in framing the ordinance for the government of the Northwest Territory. Congress had made the qualification rest upon citizenship of "one of the United States,, " and this was doubtless the intent of the convention which framed the Constitution, for it cannot have meant anything else.
The silence of the Constitution and its failure to define the meaning of the word citizen, either by way of inclusion or exclusion, has been the subject of much judicial comment.(16) Perhaps the best expression concerning it is that of the Supreme Court of the United States, when it declares:
"In this respect, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution." (17)
In the famous case of Dred Scott v. Sandford,(18) it was said that the words "'people of the United States " and "citizens" are synonymous terms; that they "describe the political body which, according to our republican institutions, forms the sovereignty which holds the power and conducts the government through its representatives."
Sundry opinions of the attorney-generals of the United States are to the same effect. In one of these, rendered in 1862, it is said:
"The Constitution of the United States does not declare who are and who are not citizens, nor does it attempt to describe the constituent elements of citizenship; it leaves that quality where it found it, resting on the fact of home birth and upon the laws of the several States." (19)
It was not difficult to ascertain, on the principles above announced, who were citizens of the United States under the original Constitution. The citizens of Vermont and Kentucky, when those States were admitted, assumed their relations to the Union as naturally as did those of any of the original States. So, also, the citizens of the region now constituting five great States erected in the Northwest Territory became citizens of the United States the instant the Constitution was adopted.(20)
By the Constitution, power was given Congress (Article IV, Section 3, Clause 2) to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Under this power, the process of governing the Territories and organizing them into States was simplified.(21)
By easy transition the territory acquired from France' known as the Louisiana Territory, and the, Florida cession from Spain, and the territory acquired from Mexico by conquest, were first governed territorially. Under these territorial governments the inhabitants made their first attornment as citizens of the United States to the Federal authority, and when the States created from this territory were organized and admitted, they assumed their obligations of dual citizenship to State and Nation, of a nature and a quality identical with that of citizens of the old States.
Besides these citizens, who became such in a body, a vast number of citizens of the United States were created under the powers of naturalization conferred upon Congress by the Constitution.
Among the first powers conferred upon Congress by Article 1, Section 8, Clause 4, was "to establish a uniform rule of naturalization." (22)
Laws were passed, and the naturalized citizens admitted under these laws distributed themselves among the several State or Territorial communities of which they became members. But it did not follow as a necessary, consequence that a naturalized citizen of the United States became also a citizen of any State or Territory.
The original Constitution remained unchanged concerning citizenship, from 1789 until July 28, 1868, when the Fourteenth Amendment to the Constitution was adopted. Before entering into a discussion of the effect upon citizenship, and the manner of enforcement, of that amendment, a brief historical statement is necessary.
Even prior to the adoption of the Constitution, sectional jealousies existed between the States. The basis of representation in the national Congress was a fruitful source of controversy between them. The population of the northern colonies was almost exclusively white and free, whereas that of the southern colonies consisted, to a large extent, of black slaves. The extent to which this black population was to be considered in arranging a basis of representation gave rise to many of the controversies between the sections, at the outset.
The basis of representation in Congress fixed by the Constitution, Article 1, Section 2, Clause 3, apportioned representatives among the several States according to their respective numbers, which were to be determined by adding to the whole number of free persons, three-fifths of all other persons, exclusive of Indians not taxed.
The Constitution conferred power on Congress to dispose of and make all needful rules and regulations respecting the territory, or other property, belonging to the United States.(23) It likewise conferred upon Congress the power to admit new States into the Union.(24)
The Constitution contained a provision that no person held to service or labor in one State, under the laws thereof, escaping into another State, should in consequence of any law or regulation therein be discharged from such service or labor, but that he should be delivered up on claim of such party to whom such service or labor might be due.(25)
The relative strength of the sections North and, South was altogether different at that time from what it is at present; even the white population of the southern States, in which slavery existed, as compared with that of the northern States, where slavery did not exist was proportionately larger than it is at present, and on the basis set forth above the northern States were jealous of the preponderance of representation given to the southern States. It was argued by those opposed to the Constitution in the North, that it placed the northern States, especially the small ones, at the mercy of the southern States, in the Union. It was this argument, no doubt, that made Rhode Island reluctant to become a member of the Union. On the other hand, the southern States realized that the population of the North was growing much more rapidly than that of the South, and that it was spreading into the Territories and would demand that those Territories be formed into new States and admitted into the Union as free States. It was argued by those opposed to the Union in the South, that such a result was inevitable; that in a short time the slaveholding States would be dominated by the free States of the North and West, and that they, by, the control thus gained in Congress over the Territories and concerning the admission of free States, would put the slave States at the mercy of the free States in federal affairs. It was doubtless by arguments like this, that North Carolina was restrained so long from becoming a member of the Union.
The Constitution contained no definite expression upon the right of the States to withdraw from the Union if they became dissatisfied. in spite of many attempts to have that right defined, the convention refused to do so.
These conditions gave rise from the outset to such antagonism between the sections, that it was found impossible to procure the assent of Congress to the admission of new States, except in couplets, one with and one without slavery. This method of admitting States began with the States of Vermont and Kentucky, and continued until the controversies over the regulation of slavery in the Territories, the returning of fugitive slaves, and the right of States to secede, culminating in an attempt in the year 1861, on the part of the slave States, to withdraw from the Union, and a consequent civil war, in which the northern States were triumphant.
While the controversy over slavery was at its height, a case was decided by the Supreme Court of the United States, in which the status of the negro race, under the Constitution, was defined. The decision was rendered in the year 1857, and the question involved was deemed to be of such importance that the opinions delivered occupied two hundred and forty pages of the volume in which they appear. The points relating to citizenship decided by the Supreme Court, in an opinion of great power delivered by Chief Justice Taney, were: "A free negro of the African race whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States....When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or Citizens.' Consequently the special rights and immunities guaranteed to citizens do not apply to them.... The only two clauses in the Constitution which point to this race treat them 88 persons whom it was morally lawful to deal in as articles of property and to hold as slaves."
This finally adjudged status of the negro race continued to be the law of the land until it was changed by the following events.
In December, 1862, the war between the United States and the States which had attempted to secede from the Union, having then been flagrant for nearly two years, with its result still in doubt, the President of the United States issued a proclamation conditionally emancipating all the slaves in the States whose armed forces were opposed to those of the United States. By subsequent proclamations, this conditional emancipation of the slaves was made absolute. The President did not claim to justify this proclamation by any express warrant of the Constitution, but it was claimed by him to be a war measure, legitimate as a means of weakening and injuring an enemy in arms. We need not therefore consider it further as a measure of law. It was emphatically a measure of the war.
In April, 1865, the armies of the United States conquered the armies of the States which attempted to secede, and those States, with their people, were at the mercy of the conqueror, subject to such terms as it saw fit to impose. In anticipation of this victory, the Congress of the United States, February 1, 1865, proposed to the legislatures of the several States an amendment, known as Article XIII, in addition to, and amendment of, the Constitution of the United States, in the words and figures following:
" ARTICLE XIII.
"SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." "
December 18, 1865, the secretary of state proclaimed that twenty-seven of the thirty-six State's had, by their legislatures, ratified this amendment. This included ratification by the legislatures of the States of Virginia, Louisiana, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, and Georgia, all of which States had attempted to secede, and were completely within the control of the Federal military power at the date of their alleged ratification of this amendment. It bas since been claimed that they were under duress at the time of their alleged ratifications, but the Supreme Court of the United States, in the case of White v. Hart,(27) considered and disposed of this plea of duress, as it related to the State of Georgia, in a way so effectual that it need not be further referred to.(28)
The negro having thus been emancipated by the power of war, and his status changed from that of a slave to a freeman, it was proposed, for reasons satisfactory to the dominant party, to alter his civil and political status as it had been defined by the case of Dred Scott v. Sandford. Accordingly, the Congress of the United States, on January 16, 1866, proposed to the legislatures of the several States the following amendment to the Constitution:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."(29)
The amendment contains three other sections, but none of them refer to citizenship.
July 21, 1868, by a joint resolution of Congress, the Fourteenth Amendment was declared to have been adopted. Not only did it work a revolution in the citizenship of the negro race, but its effect upon United States citizenship, upon the citizenship of States, upon the status of every class of people in the United States, and upon the relations between the United States and the States, has given rise to more discussion, and been the subject of more decisions, than any other part of the Federal Constitution.(30) The Supreme Court of the United States alone has, in a period of thirty-five years, rendered about three hundred decisions on questions arising upon this amendment.
To discuss those decisions; at length is impossible within the limits of any one volume. Many of them relate to laws abridging the privileges and immunities of citizens; many to what constitutes due process of law; many to the denial of the equal protection of the laws. A few, defining the reasons which led to the adoption of the amendment, and the effects of the amendment upon the rights of citizens, will suffice in this chapter, while orders will be considered when we come to discuss the method by which this defined citizenship may be acquired or protected.
In the Slaughter-House Cases (31) which were the first to arise under this amendment and in which opinions of unsurpassed ability were rendered, it is said:
"This clause declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States."
And in the case of U.S. v. Wong Kim Ark,(32) it is again said:
"The Fourteenth Amendment of the Constitution, in the declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,' contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."
"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, 'All persons born in the United States,' by the addition, land subject to the jurisdiction thereof,' would appear to have been to exclude by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases - children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state - both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."
Qualified Citizenship in Territorial and Acquired Possessions.
Recent events, the result of which was not foreseen, have created an entirely new and unprecedented citizenship in the United States. It is the limited and rudimentary citizenship of the inhabitants of our newly acquired territory in Alaska, Porto Rico, the Philippine and the Ladrone Islands, and in Hawaii. The status of those citizens is the result of changed conditions in the territory which they inhabit. The oldest of these possessions is Alaska, purchased by the United States from Russia, and governed as a Territory. The latest expression of the Supreme Court of the United States, defining the status of Alaskan citizenship, is in an opinion delivered April 10, 1905.(33)
In April, 1898, the United States declared war against the Kingdom of Spain, in a quarrel between the two nations concerning the government by Spain of the island of Cuba, a Spanish possession. In May, 1898, the naval forces of the United States invaded the Philippine Islands, another Spanish possession, soon followed by the land forces of the United States. In July, 1898, the military forces of the United States invaded the island of Porto Rico, another Spanish possession. By a protocol dated August 12,1898,(34) hostilities were suspended between the United States and Spain, upon the understanding that Spain would cede to the United States; the island of Porto Rico, and other islands under Spanish sovereignty in the West Indies, also an island in the Ladrones to be selected by the United States.
By a treaty dated December 10, 1898,(35) Spain actually ceded to the United States the island of Porto Rico, and the other islands under Spanish sovereignty in the West Indies, and the island of Guam in the Ladrone group, and by the same treaty she ceded to the United States the archipelago known as the Philippine Islands, by boundaries. Provision was made in the treaty for the protection of Spanish subjects, natives of the peninsula residing in the ceded territory, for the protection of the religion of the inhabitants of the territories ceded, and for the protection of certain civil rights. By a treaty dated November 7,1900,(36) Spain ceded all islands belonging to the Philippine archipelago, lying outside the lines described in the prior treaty, particularly the islands of Sulu and Sibitu.
By a protocol dated March 29, 1900,(37) the period fixed by the former treaty for Spanish subjects to declare their intention to retain their Spanish nationality was extended six months.
Thus, within a year from the outbreak of the war with Spain, the United States acquired all the above named islands, with many millions of inhabitants, and undertook by Article IX of the Treaty of December 10, 1898, that "the civil rights and political status of the native inhabitants of the territories ceded to the United States shall be determined by the Congress."
While these events were transpiring the Republic of Hawaii, whose government extended over a group of islands in the Pacific, known as the Hawaiian Islands, formally signified its consent, in the manner provided by its constitution, to cede absolutely and without reservation to the United States of America, all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands or their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, government, or crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining. This proposition was presented to the Congress of the United States, and accepted July 7, 1898, by a joint resolution, (38) which provided that "said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America."
It was further provided that "until Congress shall provide for the government of such islands all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons, and shall be exercised in such manner, as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned." The municipal legislation of the Hawaiian Islands, subject to certain limitations, was to remain in force until the Congress of the United States should otherwise determine. The United States government assumed the debts of the islands, not to exceed $4,000,000. As act was passed forbidding the immigration of Chinese. The President was required to appoint five commissioners to recommend to Congress such legislation concerning the Hawaiian Islands as they should deem necessary or proper.(39)
Thus it will be seen, that in the year 1898 the United States gained an immense accession of citizenship in territory lying far beyond its original confines, inhabited by people altogether different from those who had constituted its citizens theretofore. It will also be seen, both in the joint resolution accepting sovereignty over the Hawaiian Islands, and in the treaty accepting the cession of the Spanish possessions, that the United States assumed complete authority to govern all the newly acquired territory.
Let us now consider what government it has, up to the present time, provided for these several possessions, an examination essential to an understanding of the grade and quality of citizenship which their inhabitants enjoy.
HAWAII -- ITS GOVERNMENT
Congress, by an Act approved April 30, 1900, (40) passed an Act to provide a government for the Territory of Hawaii. In Chapter I, Section 4, of that Act it was set forth that all persons who were citizens of the Republic of Hawaii on August 12, 1898, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii; and all citizens of the United States residing there on or since August 12, 1898, and all citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year, shall be citizens of the Territory of Hawaii. The fifth section declared that the Constitution and laws of the United States, except such as are locally inapplicable, shall have the same force and effect in the Territory as elsewhere in the United States, with certain specific exceptions.
The Act provides for a legislature composed of a senate and a house of representatives, for general elections, and that all legislative proceedings shall be conducted in the English language. It confers a large degree of legislative power upon the legislature, and extends a broad franchise to all inhabitants who are citizens of the United States and have resided in the Territory not less than a year, twenty-one years old, registered, and able to speak, read, and write the English or the Hawaiian language. It provides, however, for the appointment by the President of the United States of a governor, secretary, chief justice and justices of the Supreme Court, and judges of the circuit courts; and that the governor shall nominate, and, by and with the advice and consent of the senate of the Territory appoint, an attorney-general, treasurer, commissioner of public lands, commissioner of agriculture and forestry, superintendent of public works, superintendent of public instruction, auditor, and other officers; but all the officers appointed under the Act are to be citizens of the Territory. By the terms of the Act, Section 85, the delegate to the House of Representatives of the United. States, to serve during each Congress, shall be elected by the voters qualified to vote for members of the house of representatives of the legislature; such delegate shall possess the qualifications necessary for membership of the Senate of the legislature of Hawaii. Every delegate shall have a seat in the United States House of Representatives, with the right of debate but not of voting.
From the foregoing recital of the Constitution and government of Hawaii, it will be seen that the government organized in that Territory is very similar in its general characteristics to that organized in the Northwest Territory by the Ordinance of 1787.
Congress proceeded April 12, 1900, to enact a civil government for the island of Porto Rico and adjacent islands.(41) The Act provides that all inhabitants continuing to reside in Porto Rico, who were Spanish subjects on the 11th day of April, 1899, and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United States, and they, together with such citizens of the United States as may reside in Porto Rico, shall constitute a body politic under the name of The People of Porto Rico, with governmental powers as conferred in the Act. By Section 14, the statutory laws of the United States not locally inapplicable, except as otherwise provided, and except the internal-revenue laws, are to have the same force and effect in Porto Rico as in the United States. Section 16 provides that all judicial process shall run in the name of the United States, to wit, the President of the United States, and that all penal prosecutions in the local courts shall be conducted in the name and under the authority of the people of Porto Rico, and that all officials authorized by the Act shall take an oath to support the Constitution of the United States and the laws of Porto Rico.
The legislative authority provided by the Act was empowered to amend, alter, modify, or repeal any law or ordinance, civil or criminal. Congress, however, retained the right in the President to appoint a governor and other executive officers and members of an executive council. The legislative body consists of the executive council and the house of delegates, and is known as the Legislative Assembly of Porto Rico; the house of delegates comprises thirty-five members elected biennially by the qualified voters from the seven districts into which the island is divided. All citizens of Porto Rico, bona fide residents for a year, and possessed of other qualifications under the laws and military orders, are allowed to vote. The legislative authority extends to all matters of a legislative character not locally inapplicable, including the power to create, consolidate, and reorganize the municipalities, and to amend, alter, modify, or repeal all laws and ordinances of Porto Rico, not inconsistent with the provisions of the bill. A judicial power is created, but the judges are appointed by the President of the United States, and Porto Rico is made a judicial district for the purposes of Federal jurisdiction, with appeal to the Supreme Court of the United States. The writ of habeas corpus is extended to the Territory, and a commission was appointed to compile and revise the laws of Porto Rico and report a permanent plan of government within a year.
By acts passed in 1902, a cadet at West Point and a midshipman at Annapolis are authorized from the Territory of Porto Rico,(42) and citizens of Porto Rico are made eligible for enlistment in the Porto Rico regiment, with the right to order them outside the service of the island.
By a proclamation dated July 25,1901, the President declared that the civil government of Porto Rico had been organized in accordance with the provisions of the Act of Congress.(43)
From the foregoing, it will be seen that the government of Porto Rico is even more like that provided for the Northwest Territory, than the government of Hawaii, as the legislative body of Porto Rico consists of an executive council appointed by the President to act in conjunction with the house of delegates; but the acknowledgment that the inhabitants of Porto Rico are citizens of the United States is expressly withheld in the declaration of the Act of Congress of April 12, l900, Section 7, which says that all inhabitants continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in Porto Rico, and their children born subsequent thereto, should be deemed and held to be citizens of Porto Ricoa and as such entitled to the protection of the United States, and they, together with such citizens of the United States as may reside in Porto Rico, shall constitute a body politic under the name of The People of Porto Rico.
No special provision of law seems to have been enacted concerning the inhabitants of the island of Guam, or defining the status of their citizenship.
THE PHILIPPINE ISLANDS
The Philippine Islands occupy an immense space upon the map. Their inhabitants consist of a vast number of tribes, varying in intelligence and civilization. By an Act of Congress passed March 2, 1901, the President of the United States was authorized to establish a temporary civil government over the Philippine Islands,(44) in the following language:
"All military, civil, and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the treaties concluded at Paris on the 10th day of December, 1898, and at Washington on the 7th day of November, 1900, shall, until otherwise provided by Congress, be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property, and religion," etc.
Pursuant to the powers vested in him, the President of the United States created a civil commission, which has, from that time until the present, continued to administer the affairs of the Philippine Islands.
By an Act passed July 1, 1902, Congress(45) approved and ratified and confirmed the action of the President in creating the Philippine Commission, and in authorizing the commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Philippine Commission dated April 7, 1900; in creating the offices of civil governor and vice-governor of the Philippine Islands, and authorizing said civil governor and vice-governor to exercise the powers of government to the extent and in the manner and form set forth in the executive order dated June 21,1901, and in establishing four executive departments of government in the islands, as set forth in the Act of the Philippine Commission.
It is necessary to go into the details of the organization of that commission. It is sufficient to say that it was organized for the purpose of securing to the inhabitants of the Philippine Islands a stable and safe government by the United States until such time as its people shall be deemed capable of a larger degree of self-government.
Congress by the Act of July 1, 1902, Section 5,(46) provided a series of safeguards for the protection of life and liberty of the inhabitants of the Philippines. The rights guaranteed by that section are those set forth in the Declaration of Independence, modified by the condition of the inhabitants. Among those rights are, the guarantee that no person shall be deprived of life, liberty or property, without due process of law; the right of the criminal to be heard by himself and counsel and to demand the nature and cause of the accusation; the guarantee that no person shall be twice put in jeopardy for the same offense or be compelled to testify against himself; the right to bail; that no law shall be passed impairing the obligation of contracts; that there shall be no imprisonment for debt; that the writ of habeas corpus shall not be suspended; that no ex post facto law or bill of attainder shall be passed; in fact, all the civil rights guaranteed by the Constitution of the United States.
Section 4 (47) of the Act declares that all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the llth day of April, 1899, and then resided in said islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States. It expressly fails to declare that they shall be deemed citizens of the United States.
Section 6(48) provides for a census.
Section 7 (49) provides for a general election two years after the completion of the census, on certain conditions, to choose delegates to a popular assembly, and that after such assembly shall have convened and organized, the legislative power theretofore conferred on the Philippine Commission in all that part of the islands not inhabited by Moros and non-Christian tribes should be vested in a legislature consisting of two houses, the Philippine Commission and the Philippine Assembly. The qualification of electors shall be the same as now provided by law in the case of electors in municipal elections. The act contains sundry other provisions looking to an enjoyment of the rights of citizenship for the inhabitants of the islands.
By the same Act a Bureau of Insular Affairs of the War Department is created. The business assigned to that bureau embraces all matters relating to the civil government in the island possessions of the United States, subject to the jurisdiction of the War Department.
Under the foregoing acts, a most thorough and efficient government has been provided for the Philippine Islands. There is little doubt that the inhabitants of Hawaii, Porto Rico, and the Philippines are better governed than they were before, and with the humane and gentle tyranny to which the inhabitants of the Philippines are subjected by the United States, they are doubtless being stimulated to a degree of intelligent conception of our ideals of liberty and self-government, and to a standard of civilization much higher than they ever heretofore conceived.
Citizenship in Our Insular Possessions.
These ends may be invoked to justify the means employed, but four facts concerning the inhabitants of Porto Rico, the Philippines, and Guam remain undisputed, as follows:
1. That the United States commands their allegiance.
2. That they never did voluntarily assume that allegiance.
3. That the qualified citizenship, the restricted liberty, and the limited right of self-government which they Possess, are of a nature far inferior to those enjoyed by the inhabitants of the continent of North America who are subject to the jurisdiction of the United States.
4. That both the qualified citizenship conferred upon them and the form of government imposed upon them are different from any citizenship or government that was contemplated by the framers of the Constitution of the United States, when it was proposed and adopted. As a legal proposition, there can be little doubt of the power of the United States to acquire all these possessions, and of the obligation resting upon it to govern them wisely and judiciously after acquiring them. The Supreme Court of the United States has had occasion to consider and define the status of these lands. A careful study of the case of DeLima v. Bidwell,(50) and the group of cases in the same volume collectively designated as the "insular tariff cases," is recommended to the student who is particularly interested in this subject The arguments and the decisions rendered place the reader in full possession of the facts and circumstances under which these possessions were acquired, the status of the people as regards the United States, the nature of the governments under which their affairs are administered, and the constitutional provisions, civil and military, relied upon to justify and sustain the United States in the government it has established. Not the least surprising result of such a study will be the discovery of a great divergence of opinion among the learned and able lawyers who compose the Supreme Court of the United States, concerning the ground on which the right of the United States to govern these people rests, and the status of their inhabitants as citizens of the government of the United States. By far the ablest and most concise statement of the law, justifying the acquisition of these islands and sustaining the authority of Congress to define and determine the status of their inhabitants, is found in the concurring opinion of Mr. Justice Gray, in the case of Downes v. Bidwell.(51) The power granted to the United States to make war and make treaties, unquestionably involved the right to acquire these territories by conquest, and the power to govern them seems to be a necessary incident of the power to acquire them.(52) The semi-barbarous inhabitants of the Philippines, at least, have everything to gain and nothing to lose, from the protection and qualified citizenship accorded to them by the American Republic, but the wisdom of assumption by the United States of this class of guardianship over outlying territory has given rise to much debate. The territorial government heretofore exercised by the United States over national territory contiguous to the States was a temporary government. It was only intended to last and only lasted, until the new settlers, flowing from the States into the organized Territories, attained such numbers and other requisites as justified their organization into new States. In such cases the transition from the territorial condition into Statehood was easy, rapid, and sure. The difference in the nature and quality of the citizenship between inhabitants of Territories and those of States was only a difference in name, and State citizenship only brought with it a few added political rights. But there can be no such progressive development and rapid growth to independence of Federal supervision in these insular acquisitions. Possession of them involves the necessary strengthening of our naval power, and an increased danger of foreign complications. Their inhabitants are of an alien stock which has never comprehended our ideals of government, or had any conception of the principles of republican liberty or democratic self-rule, such as we have understood and practiced. If they are ever able to comprehend them, it will only be after generations, if not centuries, of paternal rule and educate on to elevate them to our standard. It is doubtful if they will ever assimilate to our institutions and whether they will not always need a strong government. It is questionable whether the injury to our home government from the ill effects on its simplicity resulting from this practice of strong government upon our alien subjects will not be greater than any benefit. which we are likely to bestow on them. These are the arguments which have arisen against the inauguration of this new insular policy and the adoption of this surprising new citizenship. In a treatise like this, it is sufficient to state the argument without attempting to draw conclusions. What these insular governments may some day become, the future alone will disclose. At present, they are substantially citizens without a voice in their government, and subjects without a king. They are free, provided they conform to the standard of right and wrong fixed for them by a well-meaning and benevolent despot, fixed from a viewpoint altogether different from their own. The United States had its birth in the protest of Henry against the dictation of foreign rulers. Summing up and denouncing the usurpations of King George, he said: "If this be treason, make the most of it." The nation which sprung into being upon this issue has now become the foreign ruler of an alien people by conquest. It has assumed to revolutionize their mode of existence, mental, moral, physical, and political. In its determination to bear the torch of liberty to the remotest people of the earth, it has marched among them, planted its standard, proclaimed its rule, and answered their every protest with the announcement, "This is liberty, and you must make the most of it." History will record the success or failure of the experiment. This completes the enumeration of the different kinds of citizenship existing under our system of government.
FOOTNOTES TO CHAPTER I.
(1) See also Webster's Dictionary; Century Dictionary; 6 Am. and Eng. Encyc. of Law (2d ed.) 15; Abrigo v. State, (1890) 29 Tex. App. 149.
(2) "Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights." U.S. v. Cruikshank, (1875) 92 U.S. 542.
(3) For the purpose of designating by a title the person and the relation he bears to the nation, the words `subject,' `inhabitant,' and `citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. 'Citizen' is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States." Minor v. Happersett, (1874) 21 Wall. U.S. 162.
"The word in never used of the people in a monarchy, since it Involves an idea not enjoyed by subjects, to wit: the inherent right to partake in the government- The republics of the Old World were cities, and the word citizen has been usually in human history only applied to inhabitants of cities. As, (4) (1849) 7 How. (U. S.) 1.
however, states have in modern times arisen, and republics have been established, in which the word subjects could not be properly applied, the people of those republics, have been called citizens, for the simple and obvious reason that their relation to the state was such an was the relation of citizens to the city. They were a part of its sovereignty - they were entitled to its privileges, its rights, immunities and franchises. White v. Clements, (1896) 39 Ga. 232.
(5) Thomasson v. State, (1960) 15 Ind. 449; Amy v. Smith, (1822) 1 Litt. (Ky.) 332.
(6) 6 Am. & Eng. Enc-ye. of Law, 15 and cases cited; Minor v. Happersett, (1874) 21 Wall. U.S. 162; Lyons v. Cunningham, (1884) 66 Cal. 42; Blanck iv. pausch, (1885) 113 111. 60; Laurent v. State, (1863) 1 Kan. 313; Opinion of Justices, 44 Me. 507; Pomeroy's Municipal Law, pt. 11, c. 2, p. 425; Dred Scott 9. Sandford, (1856) 19 How. U.S. 422; U.S. v. Morris. (1903) 125 Fed. Rep. 325; Dorsey v. Brigham, (I898) 177 111. 258,69Am.St.Rep.232; Gougar v. Timberlake, (1897) 148 Ind. 41, 62 Am. St. Rep. 489.
(7) (1849) 7 How. U.S. 1.
(8) Inglis v. Sailor's Snug Harbour, (1830) 3 Pet. (U. S.) 121.
(9) The Federalist (Lodge, 1892), p. 86.
(10) The Federalist (Lodge, 1892), p. 137.
(11) Edition 1900.
(12) Lodge, 1902, p.231.
(13) See the text of ordinance in Vol. 8, Federal Statutes, Annotated, p. 17.
(14) Every person, and every clan and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body." Dred Scott v. Sandford, (1856) 19 How. (U. S.) 406.
(15) "Whoever...was one of the people of either of these States when the Constitution of the United States was adopted, become ipso facto a citizen- a member of the nation created by its adoption. He was one of the people associating together to form the nation, and was, consequently, one of Its original citizens. And to this there has never been a doubt. Disputes have arisen as to whether or not certain persona or certain classes of persons were part of the people at the time, but never as to their citizenship It they were." Minor v. Happersett, (1874) 21 Wall. (U. S.) 162.
(16) Prior to the 14th article of amendment to the Federal Constitution no definition of the term "citizenship" was to be found in the Constitution, nor had any attempt been made to define it by Act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals.- Slaughter House Cases, (1872) 16 Wall. (U. S.) 72.
(17) U.S. v. Wong Kim Ark, (I 897) 169 U. S. 654.
"The term 'citizen' was used In the Constitution as a word, the meaning of which was already established and well understood. And the Constitution itself contains a direct recognition of the subsisting common-law principle, in the section which defines the qualification of the President: 'No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.' etc. The only standard which then existed of a natural born citizen was the rule of the common law, and no different standard has been adopted since." Lynch v. Clarke, (1844) 1 Sandf. Ch. (N. Y.) 656.
"The term 'citizen,' as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase had entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a subject of the king , is now a citizen of the state."' State v. Manuel, (1838) 4 Dev. & B. L. (N. Car.) 26, quoted U.S. v. Rhodes, (1866) 1 Abb. U.S. 39. 27 Fed. Cas. No. 16,151.
(18) Dred Scott v. Sandford, (1856) 19 How. (U. S.) 393.
(19) Citizenship, (1862) 10 0p. Atty.Gen. 382.
(20) Admission on an equal footing with the original States, In all respects whatever, Involves equality of constitutional right and power, which cannot afterwards he controlled, and it also involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State with the consent of Congress. Boyd v. Thayer, (1891) 143 U. S. 143.
(21) McCulloch v. Maryland. (1819) 4 Wheat U.S. 316; American Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511; U.S. v. Gratiot, (1840) 14 Pet. U.S. 526; U. S. v. Rogers, (1846) 4 How. U. S. 667; Crone V. Harrison, (1853) 16 How. U.S. 164; U.S. v. Coxe. (1855) 18 How. U.S. 100; Gibson v. Chouteau, (1871) 13 Wall. U.S. 92; Clinton v. Englebrecht, (1871) 13 Wall. U.S. 434; Beals 9. New Mexico, (1872) 16 Wall. U.S. 535.
"The Constitution of the United States (article four, section three) provides, 'that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory, or other property, belonging to the United States.' The term territory, as here used, in merely descriptive of one kind of property; and is equivalent to the word lands. And Congress has the same power over it and over any other property belonging to the United States; and this power is vested In Congress without limitation; and has been considered the foundation upon which the territorial governments rest." U.S. v. Gratiot, (1840) 14 Pet. U.S. 537.
The Constitution empowers Congress "to make all needful rules and regulations. respecting the territory or other property belonging to the United States; and perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." Per Chief Justice Marshall in American Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511. To the same effect, Sere v. Pitot, (1810) 6 Cranch U.S. 332.
(22) Gassies v. Ballon, (1832) 6Pet. U.S. 761; Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Minneapolis v. Reum, (C.C.A. 1893) 56 Fed. Rep. 580. See also the notes on the Constitution dealing with this subject in Vol. 8, Federal Statutes, Annotated, p. 579.
"The Constitution declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States....It made all alike, citizens of the newly organized nation, and in this respect a homogeneous people. And the very necessity for such a provision to bring all upon a common platform, exhibited in the strongest light the absolute need of guarding against different and discordant rules for establishing the right of citizenship in future. We therefore find that one of the first powers conferred upon Congress was "to establish an uniform rule of naturalization throughout the United States." Lynch v. Clarke, (1844) 1 Sandf. Ch. (N. Y.) 841, 64?.
(23) Const, Art. IV, Sec. 3, Cl. 2; M'Culloch v. Maryland, (1819) 4 Wheat U.S. 316; American Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511; U. S. v. Gratist, (1840) 14 Pet. U.S 526; U. S. v. Rogers, (1846) 4 How. U.S. 56T; Cross v. Harrison, (1853) 16 How. U.S. 164; U.S. v. Coxe, (1855) 18 How. U.S. 100; Gibson v. Chouteau, (1871) 13 Wall. U.S. 92; Clinton v. Englebrecht, (1871) 13 Wall. U.S. 434; Beall v. New Mexico. (1872) 16 Wall. U.S. 535; Davis v. Beason, (1890) 133 U.S. 333; Wisconsin Cent. R. Co. v. Price County, (1890) 133 U. S. 496; Cope v. Cope, (1891 ) 137 U.S. 682; Church of Jesus Christ v. U.S., (1890) 136 U.S. 1; Dooley v. U.S., (1901) 192 U.S. 222; Downes v. Biowell, (1901) 182 U.S. 244; Dooley v. U.S., (1901) 183 U.S. 151.
(24) Const., Art. IV, Sec. 3, Cl. 1; American Ins. Co. v. 354 Bales Cotton, (1828) 1 Pet. U.S. 511; Pollard v. Hagan, (1945) 3 How. U.S. 212; Crosis v. Harrison, (1853) 16 How. U.S. 164.
(25) Const., Art. IV, Sec. 2, Cl. 3; Prigg v. Pennsylvania, (1842) 16 Pet. U.S. 539; Jones v. Van Zandt, (1847) 5 How. U.S. 215; Strader v. Graham, (1850) 10 How. U.S. 82; Moore v. Illinois, (1852) 14 How. U.S. 13; Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Ableman v. Booth, (1858) 21 How. U.S. 516; Callan v. Wilson, (1888) 127 U.S. 540; Nashville, etc-, R. Co. v. Alabama, (1888) 128 U.S. 96.
"Historically,, it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership In their slaves, as property, in every State in the Union Into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot not be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrine and principles prevalent in the non-slaveholding States, by preventing them from inter-medling with, or obstructing. or abolishing the rights of the owners of slaves? Prigg. v. Pennsylvania, (1842) 16Pet. (U.S. 611.
(26) White iv. Hart, (1871) 13 Wall. U.S. 646; Osborn v. Nicholson, (1871) 13 Wall. U.S. 654; Slaughter-House Cases. (1872) 16 Wall. U.S. 36; Strander v. West Virginia, (1879) 100 U.S. 303; Exp. Virginia, (1879) 100 U.S. 339; Civil Rights Case, (1883) 109 U.S. 3; Plesey v. Ferguson, (1896) 163 U.S. 537; Robertson 9. Baldwin, (1897) 165 U.S. 275.
"When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. . . . The proclamation of President Lincoln expressed an accomplished fact and to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of t@e Executive, both of which might have been questioned in aftertimes, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that instrument." Slaughter-House Cases, (1872) 16 Wall. U.S. 68.
(27) 13 Wall. 646.
(28) The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same. White v. Hart, (1871) 13 Wall. U.S. 651.
(29) Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such in extent that their freedom was of little value, while they had the protection which they had received from their former owners from motives both of interest and humanity.... These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union of the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies Slaughter-House Cases, (1872) I6 Wall. U.S. 70.
(30) See the exhaustive collection of authorities in Vol. 9, Federal Statutes, Annotated.
(31) Slaughter House Cases, (1872) 16Wall. U.S. 73; to same effect see Elk v. Wilkins, (1884) 112 U.S.101; U.S. v. WongKim Ark, (1898) 169 U.S. 676.
(32) U.S. v. Wong Kim Ark, (1898) 169 U.S. 682.
(33) Rassmussen v. U.S. (1905) 107 U. S. 516 U. S. Stat. at L., Vol. 30. p. 1742.
(34) U.S. Stat. at Large, Vol. 30, p.1742.
(35) See U.S. Stat. at Large, Vol. 30, p. 1755, 7 Fed. Stat. Annot. 814.
(36) U.S. Stat. at Large, Vol. 31, p. 1842, 7 Fed. Stat. Annot. 819.
(37) U.S. Stat. at Large, Vol. 31. p. 1882, 7 Fed. Stat. Annot. 818.
(38) U.S. Stat. at Large, Vol. 30, p. 750, 3 Fed. Stat. Annot. 183.
(39) See title "Hawaiian Islands," in Vol. 3, Fed. Stat. Annot. 181.
(40) U.S. Stat. at Large, Vol. 31, p. 141, 3 Fed. Stat. Annot. 186.
(41) U.S. Stat. at Large,Vol. 31, p. 77, etc., 5 Fed. Stat. Annot.761.
(42) U.S. Stat. at large. Vol. 32. Part 1. p. 1011, 1198, 934.
(43) U.S. Stat. at large, Vol. 32 Part 2, p. 183.
(44) U. S. Stat. at large, Vol. 31, p. 910, 5 Fed. Stat. Annot. 711.
(45) U.S. Stat. at Large, Vol. 32, Part 1, p. 691, 5 Fed. Stat. Annot. 718.
(46) 5 Fed. Stat. Annot.719.
(47) 5 Fed. Stat. Annot.719.
(48) 5 Fed. Stat. Annot. 720.
(49) 5 Fed. Stat. Annot.720.
(50) (1901) 182 U.S. 1.
(51) (1901) 182 U.S. 345.
(52) Sere v. Pitot, (1910) 6 Cranch U.S. 332; American Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511; Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Stewart V. Kahn, (1870) II.
(53)I. U.S. 5O7; Shivley v. Bowlby, (1894) 152U.S. 48; Delima v. Bidwell, (1901) 182 U.S. 196; Downes v. Bidwell, (1901) U.S. 250; U.S. v. Nelson, (1886) 29 Fed. Rep. 2024, (1887) Fed. Rep. 115; Gardiner v. Miller, (1874) 47 Cal. 575; Franklin v. U.S. (1867) 1 Colo. 38.