oe iret Ri Mt RATE ee y | t ns Wnt sat meh ee ee f al as Bieter tacts iti lane i Gs siete Reais) ASI inate Us ania neat ges Piast ae TE Higa itens if Mea i “| f Hehe Atte ON awe ee PTR it aie cite De erates Nie rea takacecsgia te bia penne Caan “ i yh vee x Cornell Gaw School Library Treatise on citizenship, by birth and A TREATISE ON CITIZENSHIP. “Every human being who has rights and duties is citizen or foreigner.’ Austin: Jurisprudence. “Every country that is liberal of naturalization is fit for empire.’ Bacon: Essay on the True Greatness of States. “Naturalization is an important appendage of the sovereignty and indepen- dence of every nation.’? — Anon. TREATISE ON CITIZENSHIP, BY BIRTH AND BY NATURALIZATION, WITH REFERENCE TO THE LAW OF NATIONS, ROMAN CIVIL LAW, LAW OF THE UNITED STATES OF AMERICA, AND THE LAW OF FRANCE; INCLUDING PROVISIONS IN THE FEDERAL CONSTITUTION, AND IN THE SEVERAL STATE CONSTITUTIONS, IN RESPECT OF CITIZENSHIP ; TOGETHER WITH DECISIONS THEREON OF THE FEDERAL AND STATE COURTS. BY ALEXANDER PORTER MORSE, OF WASHINGTON, D.C. BOSTON: LITTLE, BROWN, AND COMPANY. 1881. U4 a ¢ Copyright, 1881, By ALEXANDER Porter Morse. “All rights reserved. KE 4700 MP University Prxss: JouN WILSON AND Son, CAMBRIDGE. TO THE RIGHT HONORABLE SIR ROBERT PHILLIMORE, D.C.L., WHOSE ACCOMPLISHMENTS AS JYRIST AND SCHOLAR HAVE LONG BEEN RECOGNIZED, soas a AND WHOSE MORE RECENT LABORS IN THE FIELD OF . International Hurisprudence HAVE ADVOCATED THE POLICY AND ILLUSTRATED THE WISDOM OF THE SYSTEM THAT TEACHES THAT ‘‘ THERE SHOULD BE A HARMONY AND NOT A CONFLICT OF LAWS,”’ This WHork is Respectfully Wedicater. Wasuineron, D.C., June, 1880. PREFACE. It has been observed in substance, by an author who made some impression on his age, that upon all great sub- jects much always remains to be said. If this observation be founded in truth, —as the writer believes it to be, —and it be conceded that the subject herein treated is within the description mentioned, it would appear to be unnecessary to make apology for offering the reader a contribution to the law and literature of citizenship. That citizenship is a great ques- tion, in the most liberal meaning of the expression, will not, it is presumed, be denied. It is also a many-sided question. The term involves the idea of rights and duties, of sacred obligations and cherished prerogatives. Its present consid- eration has reference to the relations between individuals, as well as to the responsibilities of a state towards its own citi- zens and towards the citizens of other states. It will appear in the progress of this discussion why the terms “citizen ” and “citizenship” have been employed in preference to other expressions which designate national character and national- ity. The plan and general scope of the work will be readily understood on reference to the full title. The division of the subject adopted seemed natural; and the comparative and historical method of investigation, which has been pur- sued, is at once convenient and instructive. It signifies very little, for example, to say that naturalized citizens are enti- tled to, and should receive, the same protection to persons and property that is accorded to native citizens in like sit- viii PREFACE. uations and circumstances, until we learn who are native cit- izens, and what their customary rights are. It has been the object and the effort of the writer to quote the best expres- sions on the subject of authoritative writers, and to group conveniently the decisions in leading cases as determined by courts and commissions. It is believed that this work will possess an interest for every intelligent citizen; and it may not, perhaps, be too much to expect that it will be found of value to the statesman, the lawyer, and the scholar. Duties as well as rights attach to the character of citizen; and it would be of advantage alike to the individual and to the state if this fact were more generally kept in mind. Evidences are not wanting to prove that great interest is felt at home and abroad in the subject herein discussed. Among others may be mentioned the frequent consideration of citizenship in contemporaneous publications; discussions by authors and jurists in Europe and America at international conferences of the representative minds of all nations; diplo- matic correspondence, and the multiplication of treaties be- tween states defining more clearly the rights of citizens, and regulating the intercourse between the citizens of different states. The reports of proceedings of at least two interna- tional associations, organized to bring about the reform and advancement of the Law of Nations, show how much pro- gress has already been made in the direction of disseminating sound views and wholesome information on topics of immedi- ate concern. And the recent labors of an American jurist constitute strong evidence of the feasibility of a systematic and philosophic code of laws for the government and observ- ance of all nations. In the United States, citizenship is a burning question. It has been the origin of, or an important factor in, some of the gravest controversies carried on with foreign states; and the dual citizenship, — citizenship of the states and citizenship of the United States, — which exists under our form of govern- ment, has proven a fruitful source of domestic agitation. In referring to this dual citizenship, allusion has herein been made 1 Field, International Code. 9 PREFACE, 1X to some considerations, the elaboration of which was scarcely within the scope of the present work. In the United States citizenship alone does not —as seems to be too generally be- lieved — entitle to suffrage. But citizenship is intimately connected with suffrage; and the exercise of the elective franchise may be considered, prima facie, evidence of citizen- ship ; usually it does not exist without it. The late Presi- dent of the United States, whose tragic death has just now shocked the whole community and aroused deep sympathy throughout the civilized world, earnestly invited the atten- tion of Congress and the people to the prevalence of igno- rance and illiteracy among voters under the present suffrage system.1 Various schemes have been from time to time pro- posed with a view to abolish or to mitigate the most alarm- ing features that are incident to our existing system. These evils have already become well-nigh intolerable; and their existence is a constant threat to the peace and prosperity of the country. Although the doctrine of the right of expatriation was bit- terly assailed in other times and by certain states, it has been formally abandoned; and the right of an individual, “who owes no debt, and is not guilty of any crime,” to leave the place of his birth, and to adopt another citizenship or national character, is now conceded by all civilized states. The exer- cise of this right is described by Continental writers as le droit d’option. This liberty, which is now accorded to every free man of age to make choice of a country for himself, has been referred to as a characteristic of the civilization of modern times; and it has been pointed out that ‘“ the argument against double nationality, and in support of the modern doctrine of allegiance, is based on the theory of natu- ral freedom.” There is, happily, then, no longer any ques- tion either as to the right of expatriation, or as to the effects of naturalization, when the fact of naturalization has been once conceded. On these points the nations are in substan- tial accord. The difficulty always is to ascertain what should constitute the conclusive evidence of a change of national ! Garfield, Inaugural Address, 4th March, 1881. x PREFACE. character; and a majority of the controversies between states have turned upon this issue. “In modern days, in civilized days, men’s choice deter- mines nearly all they do. But in early times that choice determined scarcely anything. The guiding rule was the law of status. Everybody was born to a place in the com- munity: in that place he had to stay; in that place he found certain duties which he had to fulfil, and which were all he needed to think of. The net of custom caught men in dis- tinct spots, and kept each where he stood.” ! “ The natural right of every free person, who owes no debt and is not guilty of any crime, to leave the country of his birth, in good faith and for an honest purpose, — the privi- lege of throwing off his natural allegiance and of substituting another allegiance in its place, —is incontestible.” ? While conceding the great services rendered to mankind by other peoples, in the declaration and propagation of these principles of free will and free action for the individual man, it may be claimed, without reproach of national boasting, that the action and efforts of statesmen of the United States of America have contributed largely to bring about this most desirable result. Citizenship is a term now generally employed to describe the political relationship which exists between an individual and the sovereign state to which he owes allegiance. It is either natural or acquired. ‘According to the municipal system of most countries,” says Ashton,? “there are two gen- eral criteria of nationality by birth, or of natural citizenship. They are the place of birth and the nationality of the parents. Under the laws of some countries both are invoked to deter- mine who are to be regarded as natural members of the body politic. . . . Every state, in addition to the sovereign power of determining the conditions upon which natural citizenship shall supervene, exercises the right of conferring citizenship 1 Bagehot, Physics and Politics. ® Black, Opinions of Attorneys-General, U. S., Vol. VIII. p. 139. 8 Arg. in De Leon v. Mexico, before United States and Mexican Commis- sion, Washington, D. C. PREFACE. xi upon those to whom it does not naturally belong ; in other words, the right of naturalizing foreigners or aliens.” National character as incident to birth in a particular lo- ‘cality was the creature of feudal times and of military vas- salage, and was described as the jus soli ; national character as the result of parentage was the rule adopted by freer peoples and more enlightened communities, and was desig- nated jus sanguinis.} The whole body of the inhabitants of a country enjoying the protection of its laws, including the young who are still under the legal age, and the very old, who have passed the time of action, and all others under any species of disa- bility, are, in a certain wide and general sense, citizens ; but the full and complete definition of a citizen is confined to those who participate in the governing power, either by themselves or their representatives. The rights, duties, ob- ligations, and privileges of each class of the inhabitants are different in different states, and depend on the laws and constitution of each.” A citizen, in the largest sense, is any native or naturalized person who is entitled to full protection in the exercise and enjoyment of the so-called private rights? The natural- born or native is one who is born in the country, of citizen parents.* “ Of all the elements which compose a man’s status, viewed as a subject of law, nationality is the first and most important. By a man’s nationality is meant that political relationship which exists between him and the sovereign state to which he owes allegiance; and this relationship is fixed in different countries by varying rules and principles.” 5 The origin of the right which one nation has to adopt as its own claim, and to demand indemnity from another nation for 1 Stoicesco, Etude sur la Naturalisation, Paris, 1876, p. 286. 2 Aristotle, Politics, Book III., C. S. 2 and 3; Political Pamphlets, Expa- triation and Allegiance, Congressional Library, Washington, D. C. 3 Walsh »v. Lallande, 25 Louisiana Annual, p. 189. 4 Vattel, Droit des Gens, 1, i. c. xix. sect. 212. Ed. Paris, 1863. 5 Foote, Private International Jurisprudence, p. 1. Xi PREFACE. the injury done to an individual, is that the individual, being a member of the body politic and a representative pro tanto of his nation, the latter receives an injury whenever the person or property of such individual suffers wrong or injustice. “ The rights of a state partly respect the collective capacity of the state, its government or representatives, and partly the individuals of which it is composed; and therefore a state may be injured in two ways: either directly, by a violation of the rights affecting its collective capacity; or indirectly, by a violation of the rights of the individual, to whom it owes pro- tection in return for his allegiance.”’! “A state,” according to Grotius, “is a complete or self- sufficient body of free persons, united together for the common benefit to enjoy peaceably their own rights, and to do right to foreigners.” This expression of the raison d’étre of a state is as wise as it is terse; it contains all the elements of which political wisdom and morality are composed. It should be graven upon the seal of every state, and it deserves to be borne in constant mind by all statesmen. In the current number of a monthly review? attention is called to certain anomalies in the naturalization laws of the United States. Some positions of the writer of the article are well taken. It is matter for criticism, as has been suggested in the text, that the laws should fail to prescribe the form of proof of so solemn and important a transaction as the natural- ization of an alien. Public record should be made of all acts of naturalization; and copies should be preserved in the archives of the Department of State of the United States, of easy access for reference by home and foreign governments. The intimation that the naturalization of aliens by state courts is irregular or questionable is not so well founded as it seems to be at first impression. In naturalizing aliens, the state courts act, guoad hoe, as courts of the United States. It is as a matter of accommodation and convenience that the machinery and instrumentality of state courts are employed 1 Phillimore, Int. Law, 10. 2 The International Review, “‘ Naturalization,” September, 1881. PREFACE. xiii in preserving the evidences of naturalization proceedings; and there is no reason to believe that the administration of the law by federal courts would be any more rigid or regular. The failure of existing law to make provision for the public registration of every act of naturalization before some author- ity of the United States is, however, a serious omission. It is the law itself, as well as the administration of the law, which needs amendment. The objection to a recent act of Con- gress] is that it falls short of the purpose intended. It pro- vides a penalty for fraudulent practices in naturalization proceedings, but it fails to make provision for the vacation and forfeiture of certificates of naturalization fraudulently ob- tained. Proof of the national character is frequently required ; and it is the interest of all concerned that the record of all cases, where national character is the result of judicial action or legislative enactment, should be as simple and, of course, as public as possible. Every one will admit “ the importance to every individual of being able to prove his nationality. Rights the dearest to man may depend upon it. The capa- city of inheritance and transmittal of property, the legality of marriage, the status of children, the right to vote, and eligi- bility to office may be determined by it.” 2 The causes and conditions in several foreign States, which, in great measure, account for the recent heavy immigration to the United States, are still existent: while the induce- ments which influence and attract population are practically undiminished, if not exhaustless. There are no present indi- cations, at least, that either of the operating motives above referred to, which usually induce large masses of human beings to abandon old habitations in search of homes, will change or disappear in the near future. It may, therefore, be confidently expected that the additions to our population will be proportionately augmented during coming years. In view of the fact that these people seek the United States for the purpose of establishing themselves and of acquiring American citizenship, it would seem to be the office of wise 1 July 14, 1870. 2 International Review, “ Naturalization,” September, 1881. xiv PREFACE. statesmanship to facilitate their admission and to provide for their incorporation into the body politic as speedily as may be prudent. At the same time, it is important that the laws in respect to naturalization should be made precise and uniform, and that the administration of the law should be surrounded with all practicable safeguards against fraud and corruption. There are closely related questions of some gravity which are pressing. The negro question — so far, at least, as politi- cal status is concerned — has been finally disposed of. But the Indian problem and the Chinese question remain, Shall the American Indian ‘not in tribal relations” be clothed with civil rights and political privileges? Shall we ostracize or nat- uralize the Chinaman? Shall suffrage be extended to women? A small portion of the matter which occurs in that part of the following pages where naturalization is discussed has already been published in The American Law Register for October and November, 1879; the original has, however, been submitted to revision and correction, and is incorporated herein by the courtesy of the publishers. Several leading cases, together with many expressions of judicial opinion on the questions now discussed, are published herein for the first time in the English version. Important and controlling decisions on “ Eligibility and Title to Office in the United States and in the several States of the Union ;” the provisions of the Civil Code of France, in reference to the “ Enjoyment and Loss of Civil Rights,” and the reply of M. Treitt, legal adviser at Paris to the Brit- ish Embassy, to the question; ‘‘ What constitute the disa- bilities to which resident aliens in France are subject ac- cording to the law of that country?” will be found in the Appendix. As this book is going through the press, an instructive and interesting decision’ has been rendered by the Supreme s ' The Baltimore & Ohio Railroad Company v. Munroe Tunkhouser, Ad- ministrator, etc., U. 8. Sup. Ct. No. 788, Oct. Term. 1881. PREFACE. xV Court of the United States, on the question of the citizen- ship of corporations, in relation to their right to sue and liability to suit within the field of their corporate operations, but beyond the jurisdiction of their original charter or creation. The thanks of the writer are tendered to Mr. ROBERT Desty of San Francisco, and to Mr. E. E. TREFFRy of Cam- bridge, Mass., for valuable and material aid. A. P. M. Wasurneton, D. C., November, 1881. TABLE OF CONTENTS. PART I. §1. Introductory. —§2. Definitions, axioms, etc. What constitutes a state. —§§ 3, 4. Powers of the state and rights of citizens. — §§ 5-7, 10-18. Citizenship by birth, parentage, and domicile. — §§ 8, 9, 13. Allegiance. §§ 14, 15. Roman citizenship. —§ 16. Nationality. — § 17. International law. — §§ 18-24. Citizenship in United States. — § 25. Change of national character. —§ 26. Who is a citizen. — § 27. Right of election. — § 28. Priv- ileges of citizenship conferred by act of Congress. PART IL §§ 29, 44-46. Change of national character by naturalization. —§ 30. Natural- ization under Roman law. — §§ 31-83, 39. International law. — § 34. Ex- patriation in France. — §§ 35, 36. Personal, real, and mixed statutes. — §§ 37, 38. Loss of citizenship by naturalization. —§ 40. Naturalization in Spain. — §§ 48, 51, 79-81, 84. Indemnity for injury to citizens. — §§ 47, 48. Allegiance. — §§ 49, 50. Distinction between personal and property rights. — §§ 61-54, 74. Cases of denial of naturalization by country of origin. —§ 55. Jus avocandi. — §§ 56-59, 62-64. Validity and effect of certificate of naturalization. — § 60. Loss of naturalization certificate. — § 61. Cockburn on: naturalization. — §§ 65-73. Domicile. — §§ 75, 76. Dual nationality. —§ 77. Naturalization in Great Britain and France. — § 78. Incipient naturalization. — §§ 82, 83. Expatriation. — § 85. Nat- uralization in United States. PART III. §§ 86-88. Citizenship by naturalization in United States.—§§ 89, 90. Defi- nitions. —§§ 91, 92, 97, 98. Proof of naturalization. — §§ 92, 93. How naturalization acquired. — §§ 94, 95, 99. Collective naturalization. — §§ 96, 180. Status of Indians. —§ 99. Droit @aubaine. Naturalization in France. — §§ 100-108, 105, 109, 114, 115. Effect of marriage on nationality. §§ 103-105. Nationality of minors. — §§ 110-118. Naturalization by an- nexation. —§§ 116-126. Naturalization in France. — §§ 127, 128. Allegi- ance. — §§ 129, 130. Double nationality. b XVill § 181. TABLE OF CONTENTS. PART IV. Definitions of “ citizens.” — § 182. Political rights of United States citizens. Definition of “ constitution.” — § 188. Personal rights of United States citizens. — §§ 1384, 185. Expatriation. — §§ 136, 205. Protection. — § 1387. Sources of citizenship. Dual citizenship in United States. — §§ 137, 138, 143-145. Dual citizenship, continued. — §§ 189-141, 1438-151, 156-161, 164-169. Relations of the state and federal powers. — §§ 142, -162, 163. Right of suffrage in United States. Census figures and immigration re- turns. — §§ 148-147. State powers over the right of suffrage. — §§ 145-147. Rights of citizenship. — §§ 152, 158. Citizenship of corporations. — § 154. Privileges and immunities of citizens of each state in the several states. — §§ 155, 199. Allegiance. — §§ 170-172. The future of the United States, and the dangers threatening it.—§§ 173, 174. Powers of the Senate. — §§ 175, 197, 198. Naturalization. — §§ 176, 177. Status of mar- ried women. — § 178. Case before Alabama Claims Commissioners. — § 179. Expatriation. Residence.— § 180. Naturalization treaty between Great Britain and United States. — §§ 181, 182. Proof of naturalization. §§ 183, 200. Residence. —§ 184. Liability of naturalized American citi- zens to military duty in country of origin. — § 185. Immigration returns. ‘The Chinese question. — §§ 186-188. Fraud in naturalization. — §§ 189, § 207. 190. The Chinese question. — § 191-195. Effect of naturalization certifi- cate. — § 196. Expatriation. — §§ 199, 203. Status of children. — § 204. “ Citizenship ” defined. — § 206. Property rights of aliens. PART V. Desty’s digest of decisions under United States constitutional provision in regard to citizenship. — § 208. Claims against the United States. — § 209. International tribunals, or mixed commissions, under treaty stip- ulations for the settlement of claims. PART VI. Provisions in the constitutions of the several states of the union in respect of citizenship: § 210. Alabama.—§ 211. Arkansas. — § 212. California. — § 213. Colorado. — § 214. Connecticut.—§ 215. Delaware. —§ 216. Florida. —§ 217. Georgia. — § 218. Illinois. — § 219. Indiana. — § 220. Towa. — § 221. Kansas. — § 222. Kentucky. — § 223. Louisiana. — § 224. Maine. — § 225. Maryland. — § 226. Massachusetts. — § 227. Michigan. —§ 228. Minnesota. — § 229. Mississippi. — § 230. Missouri. — § 231. Nebraska. — § 282. Nevada. — § 233. New Hampshire. — § 284. New Jersey. — § 235. New York. — § 236. North Carolina. — § 237. Ohio. — § 238. Oregon. — § 239. Pennsylvania. — § 240. Rhode Island. — § 241. South Carolina. — § 242. Tennessee. —§ 248. Texas. — § 244. Vermont. — § 245. Virginia. — § 246. West Virginia. — § 247. Wis- consin. TABLE OF* CONTENTS. Xix PART VII. § 248. Naturalization. Jurisdiction. Qualifications. — § 249. Rights of citizen- ship. — § 250. Civil Rights act. Fourteenth Amendment. — § 251. Spe- cial class legislation. Equal protection of the laws. — § 252. Rights of colored persons. — § 258. Naturalization. Unconstitutional fishery laws of California. APPENDIX. A. Eligibility and title to office in the United States and the several states of the union. Citizenship by birth. Citizenship by naturalization. Citi- zenship through husband or parent. State citizenship —its existence. State citizen qualified for senator. B. Translation of provisions of Code Napoleon. On the enjoyment of civil rights. On the forfeiture of civil rights. Naturalization of Frenchmen abroad. Naturalization of aliens in France. Communication from M. Treitt, legal adviser at Paris to the British Embassy. PREFACE 95 kos Ho% @ wo Ro wR ew Re we we ee ee CONTENTS 66 6 eS ew OW Rw ee ek ee eee we Bl TaspLe or CASES . 2 «© © © © @ te eo he oe ee ee xxi INDEX. 4% 6 os ee a SH OH HH ee we a ee 88S TABLE OF CASES. A. Abbott’s Case (Senate Rep. No. 58, 42d Cong. 2d Sess.) Abington v. North Bridgewater (23 Pick. 170) Ackler v. Hickman (60 Ala. 568) Ab Chong v. United States, /n re Pac. Coast Law Jour. 12th June, 1880) (2 Fed. Rep. 783) 297 Ah Fong, In re (8 Sawyer, 144) 230, 252, 258 Ah Fook, Ex parte (49 Cal. 402) 252, 254 Ah Kow v. Nunan (5 Sawyer, 552) 294 Ah Yup, an re (5 Sawyer, C. Ct. 15 227, 230, 292 (6 Cent. L. J. 387) 292 Alibert’s Case (before a court-mar- tial at Marseilles) 316, 317 American Ins. Co. v. Carter (1 Pet. 129 542) Amy v. Smith (1 Litt. 326) Anderson v. Baker (23 Md. 581) 174, 175 299 Anderson and Thompson’s Case Mixed Com. Mex.-Am. Claims) 84, 85, 48, 115 Angarica’s Case (Com. Am.-Span. Claims) 44 Ann Green, The (1 Gall. 274) 803 Anonymous (7 Hill, 137) 280 Anthony v. Halderman (7 Kan. 50) 175 Attorneys-General, Opinions of : L7 218 IV. 147) 125 (VIL 746) 215 (VII. 749) 6 (VIIL. 125) 63 (VIIL. 139) x., 65, 300 (VIII. 157) 122 (VIII. 411) 245 (IX. 62 42, 300 (IX. 63 84 (IX. 351 121 (IX. 856 65, 801 (IX. 859) 101, 304 | 258 | 297 | 270, 305. | Attorneys-General, Opinions of: Kk. 382) 243 f XII. 20) 114, 228, 241 XIII. 89) 43 (XIII. 91) 300 XIII. 128) 301 XIII. 376) 230 XIIL 397), 129, 300. XIV. 295) 129, 300 XIV. 402) 301 XIV. 509) 231 XV. 17} 105 B. Bailey’s Case (Clark & H. 411) 808 Baltimore & Ohio R. R. Cor vw. Tunkhouser (U. S. Supt. Ct. No. 788, Oct. Term, 1881) xiv. Bank of Augusta v. Earle (18 Pet. 519 1 Bank of the United States v. De- veaux (5 Cranch, 61) 190 v Elgntens Bank (9 Wheat. 90 190 Banks v. Walker (3. Barb. Ch. 438) 280, 281 Barclay, Jn re (Mixed Com. Br.- Am. Claims 84, 101, 217 Bartemeyer v. Iowa (18 Wall. 129) 192, 2. 50 Barton’s Case (Mixed Com. Brit.- Am. Claims) 216, 217 Bauffremont-Bibesco Case (L’In- dépendence Belge, Jan. 10, 1880) 88-92 Beardstown v. City of Virginia (76 Hl, 34 266 v. Virginia (81 Ill. 541) 804 Beavin’s Case (33 N. H. 89) 278 Belding v. State (25 Ark. 315). 259 Biddle v. Richard (Clark & H. 407) 215, 299 Biencourt’s Case (Mixed Com Mex.-Am. Claims) 139, 217 , Bollerman v. Blake (24 Hun, 188) 283 Xxil Bourland v. Hildreth (26 Cal. 161) 306 Boynton v. Loring (2d Sess. 46th 66 Cong.) Bradwell v. State (16 Wall. 1380) 178, 192, 250 Brand’s Case (Mixed Com. Brit.- Am. Claims) 216 Brent v. Armfield (4 Cranch, C. Ct. 579) 304 Brigham v. Cabot (8 Dall. 383) 800 Brown’s Case (6 Ct. of Cl. 172) 188 Brown v. Shilling (9 Md. 74) 278 Burgen, In re (2 Hughes, C. Ct. 513 251 Burkett v. McCarty (10 Bush, 760) 270 Burnham v. Rangeley (1 Woodb. & M.7 . 7) 803, 304 Burns v. State (48 Ala. 195) 249 Burton v. Burton (1 Keyes, 359) 144 Butler v. Farnsworth (4 Wash. C. Ct. 101) 304 Butterworth’s Case (1 Woodb. & M. 323 ; 296 Buzzi’s Case (Com. Am.-Span. Claims) 98, 105, 222, 223 Bye, Re (2 Daly, 525) 8, 280, 282 C. Calais v. Marshfield (30 Me. 520) 55, 193, 269, 271 Calderwood’s Case (Mixed Com. Brit.-Am. Claims) 216,217 Calvin’s Case (Rep. 5) 158 (11 St. Tr. 70) 126 Campbell v. Gordon (6 Cranch, 176 120, 215, 301 v. Jordan (Hempst. 534) 259 v. Morris (8 Harr. & M. 554) 192 v. Wallace (12 N. H. 362) 278 Carroll v. Carroll (16 How. U. 8. 287) 201, 208 Case v. Clarke (5 Mason, 70) 303, 304 Catlett oe apouls Ins. Co. (1 Paine, ) 304 Catlin v. Gladding (4 Mason, 308) 304 Chapman v. Toy Long (4 Sawyer, C. Ct. 28 280 Cherokee Tobacco (11 Wall. 616) 162 Christern, Re (43 N. Y. Super. Ct. 528) 87, 117, 231, 282 Chy Fung v. San Francisco (92 U.S. 275 230 Cincinnati Mut. Health Assurance Co. v. Rosenthal (55 Ill. 85) 266 Citizens of Texas (13 Op. Att.-Gen. 397) 129, 300 City of Lexington v. Milton (12 B. Mon. 218) 270 TABLE OF CASES. Civil Rights Bill (1 Hughes, 541) 296 Clark’s Application (1 Abb. Pr. 90; 10 How. Pr. 246) 280 Clark, In re (18 Barb. 444) 215, 280 v. Mitchell (64 Mo. 564) 252 v. People (26 Wend. 612) 269 Clarke, Ex parte (100 U. 8.399) 178, 202 v. Washington Territory (1 Wash. T. 68 304 Clement’s Case (1 Bart. 266) 299 Coleman, Jn re (15 Blatchf. 406) 87, 231 Collector, The v. Day (11 Wall. 118 30, 186, 187 Comegys v. Vasse (1 Pet. 212) 256 Commonwealth v. André (8 Pick. 224) 275 v. Baxter (35 Pa. St. 263) 299 v. Clary (8 Mass. 92) 189 v. Dennison (24 How. 66) 306 v. Kimball (24 Pick. 359) 249 v. Lee (1 Brews. 273) 285 v. Milton (12 B. Mon. 218) 270 v. Sheriff (1 Brews. 183) 285 v. Towles (5 Leigh, 743) 303 Conard v. Nicoll (4 Pet. 295) 232 Conner, Zn re (39 Cal. 98) 292 e. Elliott (18 How. 591) 192, 249, 302 Conolly v. Taylor (2 Pet. 556) 259 Consequa v. Fanning (3 Johns. Ch. 587 Contested Election of 1868 (2 Brews. Pa. 130) 285 Conway’s (Countess of) Case (2 Knapp, P. C. 387) 217 Conway, Re, (17 Wis. 259) 34, 48, 181 Cooper v. Galbraith (3 Wash. C. Ct. 546) 304 v. Savannah (4 Ga. 68) 265 Corfield v. Coryell (4 Wash C. Ct. 371 191, 302 Cory v. Carter (48 Ind. 327) 253, 268 Crandall v. Nevada (6 Wall. 36) 177 v. State (10 Conn. 340) 192 Crawford v. Wilson (4 Barb. 504) 99 Cregg, Exp. (2 Curtis, 98) 292 Cronise v. Cronise (54 Pa. St. 255) 305 Crookenden v. Fuller (29L, J. P. & M. 1 141 Crowell v. Lambert (10 Minn. 869) 299 Cully v. Baltimore & Ohio R. R. (1 Hughes, 586) 248, 249, ea 802 Cummings’s Petition (41 N. H. 270) 278 D. Dainese v. Hale (91 U. S. 18) 113 Dale v. Irwin (78 Ill. 170) 301 TABLE OF CASES. Dauphin’s Case (6 Ct. of Cl. 221) 126 Davidson v. New Orleans (96 U. 8. 97 197, 252 Davis v. Hall (1 Nott & M. 292) 286 De Cuir v. Benson (27 La. An.1) 251 De Leon v. Mexico (Mixed Com. Mex.-Am. Claims) x., 236 Delgado’s Case (Com. Am.-Span. Claims) 44, 78, 141, 222 Desty’s Case (before the California Legislature) 81-84 Dillard v. Webb (55 Ala. 468) 250 Doe v. Jones (4 T. R. 800) 126 Dolphin v. Robins (7 H. L. Cas. 890) 144 Dominguez’s Case (Com. Am.- Span. Claims) 44, 61, 78, 120, 123, 141, 222 Donovan »v. Pitcher (53 Ala. 411) 302 Don Pacifico’s Case 109, 112 Dorman v. State (34 Ala. 216) 805 Draper v. Johnson (Clark & H. 702) 802 Dred Scott v. Sandford (19 How. 893) 40, 169, 174, 248, 302, 805 Ducat v. Chicago (48 Ill. 172) 266 Duffy v. Hobson (40 Cal. 240) 253 Dupuy v. Wurtz (53 N. Y. 556) 99 E. Earl’s Case (Clark & H. 314) 298 Ellis v. State (42 Ala. 525) 253 Ennis v. Smith (14 How. 401) 304 Ernst’s Case (9 Op. Att.-Gen. 351) 121 Evans v. earsnpors (4 McLean, 574 04 v. Payne (30 La. Ann. 502) 99 Everett v. Herrin (46 Me. 357) 272 Ewing v. Blight (3 Wall. Jr. 134) 303 F. Fanning v. Consequa (17 Johns. 511) 279 Finlay’s Case 111 Fischera’s Case (9 Ct. of Cl. 254) 126 Fish v. Stoughton (2 Johns. Cas. 407 280 Fisk v. Chicago, Rock Island, & Pacific R. R. Co. (8 Abb. Pr. wn. 8. 4538; 653 Barb. 472) 280 Ford v. State (53 Ala. 150) 253 Foreman v. Baldwin (24 Ill. 299) 193 Forgey v. Sutliff (5 Cow. 713) 280 Foss v. Crisp (20 Pick. 121) 274 Fouke v. Fleming (13 Md. 392) 273 Fox v. Southack (12 Mass. 148) 275 Francis v. Ocean Ins. Co. (6 Cow - XXiil Francis, The (8 Cranch, 335) 804 (1 Gall. 614) 100 Frasher v. State (3 Tex. App. 263) 248, 249, 250, 251, 302, 306 Frendschaft, The (3 Wheat.14) 304 G. Gates v. Neal (23 Pick. 308) 199 General Armstrong, Brig of War (Ct. of Cl. 1855) 157 Gillespie v. Palmer 290 Gladhill’s Petition (8 Met. 168) 292 Goetscheus _v. Matthewson (58 Barb. 152) 281 (40 How. N. Y. Pr. 97) 281 (61 N. Y¥. 420) 281 Gordon v. United States (Court of Commissioners of Ala- bama Claims) 202 Granby v. Amherst (7 Mass. 1) 304 Green v. Steamboat City of Bridge- ton (9 Cent. L. J. 206) 296 Griffin Ex parte (Chase, Dec. 364) 305 Re (25 Tex. Supp. 623) 305 Guier v. O’Daniel (1 Binn. 349) 95 H. Hadley v. Gutridge (58 Ind. 809) 299 Hagan v. Dudley (10 L. R. 371) 215 Haldane & Eckford (L. R. 8 Eq. 631 : 100 ) Hammond ». Herrick (Clark & H. 297) 298 Handy v. Clark (4 Houst. 16) 264 Haney v. Marshall (9 Md. 194) 273 Harbaugh v Cicott (8 Mich. 241) 99 Harold, Re, (2 Penn. L. J. 119) 271 Harris v. Firth (4 Cranch, C. Ct. 710) 304 v. John (6 J. J. Marsh. 257) 270 Harrison v. Hadley (2 Dill. 229) 258 Hartt v. Harvey (382 Barb. 55) 298 Hatch v. Chicago, Rock Island, & Pacific R. R. Co. (53 Barb. a 472) Hauenstein v. Lynham (100 U. S. 483 244, 257 Hawley, Ex parte (1 Daly, 581) 280, 281 Hayes v. Hayes (74 Ill. 312) 304 Hedgman v. Board (26 Mich. 51) 248 Heeney v. Brooklyn Benevolent Society (33 Barb. 360) 280 Heirn v. Bridault (8 George, 37 Miss. 209) 276 Heney v. Brooklyn Benevolent Society (89 N. Y. 333) 280, 282 XXIV Ho Ah Kowv. Nunan (8 Reporter, 195) 294 25 Int. Rev. Rec. 312) TABLE OF CASES. Kellogg v. se of Winnebago are s. 97 294 | Kelly v. Oat (7 Wall. 496), 48, ius 18 Am. Law Reg. x. 8.676) 294 301 20 Alb. L. J. 260), 294 | Kennard v. Louisiana (92 U. 8, 480) 250, (5 Sawyer, 552) 294 252, 306, 307: (13 West. Jur. 409) 294 | Kentucky Election (2 Bart. 329) 298 Hobbs, Ex parte (1 Woods, C. Ct. Kerr v, Trego (47 Pa. St. 296) 299. 542 248, 249 | Kilbourn v. Thompson (103 U. 8. Holt v. Holt (59 Me. 464) 271 168) 295, 296, Hoyer’s Case 121 | Kilmor v. Bennett (8 Met. 199) 99 Hoyt vw. Thompson (1 Seld. 340) 30] King v. Ware (53. lowa, 97) 269. Huber v. Reily (53 Pa. St. 112) 806 | Kinney, Ez parte (8 Hughes, 9) 292, Huidmann’s Appeal (85 Pa, St. 295, 466 804 In re (7 Reporter, 712) 292 Hunt v, Richards (4 Kan. 549), 269 | Knowles, Ax parte (4 Am. L. R. 598 215 (5 Cal. 800) 215 L Koszta’s Case 68-70, 108, 244 Indian Chief, The (3 Rob. 12) 33 Inglis v. Sailor’ s Snug Harbour (3 Pet. 101) 158, 238, 283, 269, 800 Inhabitants of Oldtown v. Inhabi- tants of Bangor (58 Me. 353) © Insurance Co. v. Francis (11 Wall. 210 190 v. New Orleans (1 Woods, C. Ct. 85) 24 J. Jackson v. Beach (1 Johns. Cas. 399 28 v Gooden (20 Johns. 188) 280 v, Green (7 Wend. 333) v. Skeels (19 Johns. 205) 279 Jansen v. Cath. Magdalena (Bee, 11) 800, 301 Jennison v. Hapgood (10 Pick.77) 3804 Johnson v. Falconer (2 Paine, 602) an 3 v. Twenty-one Bales (2 Paine, 601 (Van Ness, 1) Jones v. League (18 How. 76) v. McMasters (20 How. 8) v. Minogue (29 Ark. 637) Judges, Opinion of (82 Conn. 565) Judson v. Corcoran (17 How. 612) Justices, Opinions of (44 Me. 506) (44 Me. 595) (68 Me. 589) (7 Mass. 528) 30 303, 304 304 300 259 263 256 271 271 272 274 K. Karrahoo v. Adams (1 Dill. C. Ct. 344) 238 271, 272 ¢ | Lister v. Wright (2 Hill, 320) 280. 4 | Louisville v. Baird (15 B. Mon. 257) L. Lanz v. Randall (4 Dillon, C. Ct. 425) Latham v. Clark (25 Ark. 574) Laurent v. State (1 Kan. 315) Lemmon v. People (20 N. Y¥. 562 181 259 269 192 reg. 1880) 144 Lestapies v. Ingraham (5 Pa. St. ao} 32 Levy’s Case (14 Op. Att.- Gen. 509) 231 Lexington, City of v. Milton (12 B. Mon. 218) 270 280. 248, 249 (7 304 7 | Leonard v. Grant (U. 8. Cir. Live-Stock, etc. Assoc. v. Crescent City (1 Abb. U. S. 897) eee v. Md. Ins. Co. Cranch, 506) Llano’s Case (2, Papers on Natu- ralization and Expatria- tion, 1308) 72, 78, 122 Lonas v. State (8 Heisk. 287) 249, Louisville, Cincinnati, etc. R.R. Co. v. Leston (2 How. U. cS 497) 190, Ludlam v. Ludlam (26 N. Y. abe) woe (31 Barb. 486) Luhrs v. Eimer (80 N. Y. 171) Lynch v. Clarke (1 Sandf. Ch. 685) 270! 280 283 18 M. McCarthy v. Marsh (5 N. Y. 263) (1 Seld. 263) McCarty v. Deming (4 Lans. 440) 280. 215 280 TABLE OF CASES. Metornn ie re (5 Sawyer, C. Ct. McCready v. Virginia (94 U. S. | 391 191, 250} McCullough v. Maryland (4 Wh i U.S. 403 eat. ; 187, 196) McKay v. Campbell (2 Sawyer, C. -Ct. 118) 237, 288, 247, 248, 800, 808 McKenzie v. Murphy (24 Ark. 155) 258, 259 (2 Abb. U. S. 120) 175 McKinney v. Saviego (18 How. 235 800 McMillen v. Anderson (95 U. 8. 87) 252 Maley’s Cases (3 Cranch, U. S. 458 308 Marbury v. Madison (1 Cranch, U.S. 188 Marrot v. Spain (Com. Am.-Span. Claims Marshall v. Donovan (10 Bush, 681) 258 Martin’s Case (Mixed Com. Mex. Am. Claims) 86, 128, 217 Martin v. Hunter (4 Munf. 1) 306 (1 Wheat. 304) 306 Matthew v. Rae (8 Cranch, C. Ct. 699 302 Milborne Port Election Case (1 Doug. El. Cas. 148) Miller’s Application (U. S.C. Ct. . N.Y. July, 1879) 227, 230 Miller v. Reinhart (18 Ga. 239) 265 Minor v. Happersett (21 Wall. 162) 124, 174, 248, 249, 250, 301 Mirzan’s Case 111 Mitchel’s Case 78, 74 Mitchell v. United States (21 Wall. 3 353) v. Wells (8 George, 37 Miss. 209) 298 276 Molyneux’s Case (Mixed Com. Brit.-Am. Claims) 216, 217 Molyneux v. Seymour (30 Ga. 440) 265 Monroe v. Collins (17 Ohio St. 665) 284 Monstery’s Case (Mixed Com. Mex. Am. Claims 36 Moorhouse v. Lord (10 H. L. Cas 272 98, 158. Morrison’s Application (22 How. N. Y. Pr. 99), 280 Moulton v. Reid (54 Ala. 320) 299 Moy Sam’s Case (Chicago, before Moran, J., March, 1881) 227 Mumford’s Case (Clark & H. 316) 298 Munn ». Illinois (94 U.S. 118) 197, 251, 254, 294 v. People (69 Ill. 80) 249, 251, 254 Munro v. Merchant (26 Barb. 383) 18, 280, 281 Murray v. Charming Betsy, The (2 Cranch, 64) 303 130 | XXV Murray v. Hoboken, ete. Co. (18 How. 280) 252 v. M’Carty (2 Munf. 398) 192 N. Neal v. Delaware (108 U. S. 370) 193 Nereide, The (9 Cranch, 358) 804 Newman, Fx parte (2 Gall. 11) 296 New York v. Miln (11 Pet. 102) 249 North Berwick Election Case (2 Doug. El. Cas. 450) 298 North Bridgewater Election Case (Cush. El. Cas. 264) 299 North Carolina v. Manuel (4 Dev. & B. 20) 247, 303 O. ‘O’Bryan’s Case (Mixed Com. Brit. Am. Claims) 216, 217 Ocean Ins. Co. v. Francis (2 Wend. 64 279 Ohio, etc. R. R. Co. v. Wheeler (1 Black, 286) 190 Oldtown, Inhabitants of v. Inhabi- tants of Bangor (58 Me. 353) 271, 272 Opinions of Attorneys-General : Ts 7 218 (IV. 147) 125 (VII. 746) 215 (VII. 749) 6 (VIII. 125) 63 VIII. 189) x., 65, 300 VIIL 157) 122 VIII. 411) 245 (IX. 62) 42, 800 (IX. 68) 84 (IX. 351 121 = 856 65, 801 IX. 359 62 (X. 382) 28 (XIT. 20) 114, 228, 241 (XIII. 89) 43 (XIII. 91) 300 XIII. 128) 301 XIII. 376) 230 (XIII. 397) 129, 300 (XIV. 295) - 129, 300 (XIV. 402) 301 (XIV. 509) 231 XV. 17 105 Opinions of Ju ges (82 Conn. 565) 263 Opinions of Justices (44 Me. 506) 271 (44 Me. 595) 271 (68 Me. 589) 272 (7 Mass. 523) 274 XXVi Orange, etc. R.R. Co. v. City Coun- cilof Alexandria (17 Gratt. 176) 189 PP ee v. Mayor, ete. (14 Ga. . Shty of Boston (1 307 ; Spenser, Jn re (5 Sawyer, 195) 292 Thitpe “on Ve to) BR. RB. Co. 249 Spinney, Ex parte (10 Nev. 323) 250, Tousigts Case . 69 251 Sprague ». Houghton (31. 877) 174] “TPAWAY 7.5. 0. BAe Ee Be Coe v. Litherberry (4 McLean, 442) 305/«qyent” The 16 Spratt v. Spratt (4 Pet. 406) 120, 215 | Trimble’s Case (38 Md. 468) 99 Stark v. Chesapeake Ins. Co. (7 Cranch, C. Ct. 420 State v. Adams (45 Iowa, 99) ov. Beackmo (6 Blackf. 488) v. Brown (10 Ark. 78) v. Churchill (15 Minn. 455) = 299 v. Cloksey (5 Sneed, 482) 287 v. Covington (29 Ohio St. 102) ie 805 . Dubuclet (5 Reporter, 201) 298 215 269 268 259 uv v. Fosdick (21 La. An. 484) — 192 v. Gibson (36 Ind. 389) 249, 250 v. Governor (1 Dutch. 331) 299 v. McCann (21 Ohio St. 198) aa 2 v. Manuel (4 Dev. & B. 20) 164, 283 v. Medbury (8 R. I. 188) 192 v. Mims (26 Minn. 183) 276 v. Murray (28 Wis. 96) 298, 209 v. Paper (1 Brews. 263) 285 v. Penney (10 Ark. 621) 215, 258 v. Primrose (7 Smith, Cond. Rep. 260) 258 v. Roosa (11 Ohio St. 27) 284 - v. Sherwood (15 Minn. 221) 299 v. Symonds (57 Me. 148) 272 v. Whittemore (50 N. H. 245) 292 v. Wright (10 Heisk. 237) 298 Steinkauler’s Case (15 Op. Att.- Gen. 17) 105 Stephens’s Case (4 Gray, 559) 278 Stern’s (Hose) Case (13 Op. Att.- Gen. 376) 230 Stewart, Re (7 Rob. N. Y. 635) 280, 281 Stone v. Sargent (Mass. Sup. Ct. Am. Law Reg. Jan. 1881, p. 24) 2 Trotter ». Dobbs (9 George, 88 Miss. 198) 276 Turner, Hx parte (Chase, Dec. 157) 250 In re (1 Abb. U. 8.84) 248, 250, 300 U. Udny v. Udny (1 H. L. Se. 441) 158 United States v. Acorn, The (2 Abb. U. S. 443) 87, 231, 232 v. Anthony (11 Blatchf. 200) 188, 49, 250, 306 v. Arredondo (6 Pet. 729) 232 v. Canter (2 Bond, C. Ct. 889) 180 v. Crosby (1 Hughes, C. Ct. 448) 180, 250, 298, 296 v. Cruikshank (3 Cent. L. J. 29: 192 5) (92 U. S. 542) 124, 174, 178, 192, 202, 248, 249, 250, 251, 258, 302 (1 Woods, ©. Ct. 308) 248, 249, 250, 251, 253, 302 v. Elm (23 Int. Rev. Rec. 419) 247, 248, 300 Gordon (5 Blatchf. 18) 300 Hall (3 Chic. Leg. N. 260) 249 (18 Int. Rev. Rec. 181) 249 Jackson (3 Sawyer, C. Ct. 59) 230, 258 v. Newcomer (22 Int. Rev. Rec. 115) . Penelope, The (2 Pet. Adm. si 438) . Power (14 Blatchf. 228) 281, 292 s$ © e e XXVII1 United States v. Reese (92 U. S. _ 214 174, 180 v. Rhodes (1 Abb. U.S. 28) 196, 247, 300, 3038 (1 Am. L. T. Rep. 22) 299 _ _v. Ritchie (17 How. 538) 129 United States Bank v. Deveaux (5 Cranch, 61) 1 v. Planters’ Bank (9 Wheat. 904) 1 V. Van Horne’s Lessee v. Dorrance (2 Dall. 309) 306 Van Valkenburg v. Brown (43 Cal. 43) 175, 248, 249, 250, 261, 262 Vaux v. Nesbitt (1 McCord, Ch. ‘ 28 870) Venus, The (8 Cranch, 258) _—_33, 308 Virginia, Ex parte (100 U. S. 389) 178, : 198, 200, 202 v. Rives (100 U.S. 313) 178, 193, 202 Voorhees v. Bank of the United States (10 Pet. 193) 232 Votes for Ineligible Candidates (Cush. El. Cas. 497) 299° W. Walker, Re (1 Nat. Bank. Reg. Rep. 386) 304 Walker v. Sauvinet (92 U. S. 90) 250, 252 v. Walker (1 Mo. App. 404) 308 0 | Wehlitz, Zn re (16 Wis. 463) 90 | Wells’s Petition (17 Alb. L. J. 111) 298 TABLE OF CASES. | Walsh v. Lallande (25 La. An. 189) xi. Ward v. Flood (48 Cal. 36) 249, 258 v. Maryland (12 Wall. 418) or Ware v. Hylton (8 Dall. 199) 245 Warren Manuf. Co. v. tna Ins. Co. (2 Paine, 501) 189 174 Wesche’s Case (Mixed Com. Mex.- Am. Claims) 36, 61, 1384 West'v. United States, In re (State Dept. Washington) 202 v. West (8 Paige, 433) 280 White v. Brown (1 Wall. Jr. 217) rer 303 303 275 303 Wiggin, Ex parte (1 Bankr. Reg. 90 (1 Nat. Bank. Reg. Rep. 386) Wilbur v. Tobey (16 Pick. 177) Wildes v. Parker (3 Sum. 593) Wilkinson v. Leland (2 Pet. 661) 305 Williams v. Byrne (Hempst. 472) 259 Woodward v. Roane (23 Ark. 528) 259 Wynn v. Morris (16 Ark. 414) 259 Y. Young v. Peck (21 Wend. 389) 280 Z. Zeiter’s Case (decided by French court at Wissembourg) ona A TREATISE ON CITIZENSHIP. PART I. § 1. Tue authors of the Pandects treated of the individual with reference to several different relations.1 It is particularly in his relation to the state that I propose to consider the individual in this discussion. But this con- sideration, in its progress, will make necessary some reference to the relations of states to states. The first and controlling principle in respect to the latter is the natural and indestruc- tible equality of states. A recognition of this principle is universal in the polity of modern states; and, in one sphere of intellectual exertion, it finds expression in the axiom, “ On the field of diplomacy Switzerland and Russia meet as equals.” A philosophic author calls it “the supreme principle of modern international law.” 2 “‘ The polity of the ancients was founded upon the inequality of nations. Up to this date modern polity has been a com- bination of ancient maxims and principles of Christianity.” ® § 2. There are certain constituent elements and proper- ties which are involved in the idea of a state; and these are 1 « Jurists,” says Phillimore, “considered man in a threefold view, —as an animal, i.e. a sensitive creature; as a Jeing endowed with reason (parti- ceps rationis); and as a member of a particular society. Hence the divisions of law to which he was subject, —1. Jus naturale; 2. Jus gentium; 3. Jus civile.” — Private Law among the Romans. 2 Lerminier, Philosophie du Droit, Vol. I. ch. 2. 8 1b, 1 2 A TREATISE ON CITIZENSHIP. held to be essential to its constitution and existence. These are people, territory, law, government, order, sovereignty, inde- pendence, autonomy, and stability. Not every assemblage of men, in whatsoever manner con- gregated, constitutes a body politic; but a mass of persons associated by agreement as to rights and by community of interest ! “A multitude of men,” says Wolff,? “ associating together in a political society, is called a people, or a nation; a multi- ‘tude of men, therefore, associating for any other purpose than that of political society, is not a nation. Nations or states are bodies politic, communities of men who procure their safety and their well-being by combining their forces.’ A nation is a people permanently occupying a definite ter- ritory, having a common government peculiar to themselves, for the administration of justice and the preservation of inter- nal order, and capable of maintaining relations with all other governments. The wos of the Greeks (a singular noun from zrodds, many), the populus (same root) or civitas or respublica, of the Romans, the nation, state, body politic, or commonwealth of modern times, is a body of human beings united in one common society for internal peace and order and for external protection® “The vinculum juris is essential and a community of benefits.” ® A state is a community of persons living within certain limits of territory, under a permanent organization, which aims to secure the prevalence of justice by self-imposed law.7 1 Cicero, De Resp., I. 25. 2 Jus Gentium. 8 Vattel, Droit des Gens, p. 85, Paris, ed. 1835. * Field, Int. Code, 2d ed. p. 2. 5 John Randolph Tucker, in paper read before the Social Science Associa- tion, September 6, 1877, at Saratoga, New York. 5 Jb. 7 Woolsey, Int. Law, p. 49. A TREATISE ON CITIZENSHIP. 3 “ The state,” says Johnston, “is all this and more.” “The foregoing definitions by three eminent American jurists,” says a contemporaneous writer, “approach the subject- matter from their respective points of views, — Field, from that of international law, Tucker, from that of juris- prudence, Woolsey, from a theory of rights. After the definitions of these vigorous and lucid thinkers, coinciding so nearly with the present writer, it is with much diffidence that a new definition is offered. An earnest desire for philosophical exactness must be his apology.” ? The author of “A Theory of the State” contributes this definition: ‘*A state is a separate community of human beings, associated in natural and jural relations, dwelling in its own proper territory, under an organized civil gov- ernment, self-existent, autonomous, and sovereign.”? The writer continues, ‘‘ The first conception in this definition of the state looks to the persons who compose it. They are the members of the body politic. Collectively they are the people, which term includes every individual belong- ing to the state, and is sometimes used to express the idea of the state. This ‘cetus multitudinis’ is, however, from the nature of things, incapable of giving expression to its will, except through an organ sanctioned by prescription and general consent. It is chaotic, inarticulate, and inopera- tive, except through the intermediation of the body of its citizens.” ‘*Under the present custom of Europe,” says a recent author,? “the possession of some territory is essential to the idea of a state; and within that territory each state has— except as to sovereign princes, their ambassadors and their forces — absolute jurisdiction. But the national character goes beyond the territory, and gives rise to a distinct sta- 1 William Preston Johnston, A Theory of the State, not yet published. 3 Ib. : 8 Hearn, Aryan Household, pp. 379, 380. 4 A TREATISE ON CITIZENSHIP. tus. . . . But as between nations, nationality does not admit of degrees.” *‘ Had Don Pacifico,” says Sir Alexander Cockburn (“ Na- tionality”), “‘ been naturalized at Gibraltar instead of having been born there, he would not have been the less entitled to British protection.” “ A civilized community presupposes a government of law. If that government be a republic, its citizens are the sole sources,” } § 3. Among other attributes of sovereignty on the part of the state is the right to determine the conditions and qualifications which shall entitle individuals generally within her territory or under her jurisdiction to national protection. Within narrower limits the state exercises the further right to say who shall be deemed ‘‘ citizens” or “ subjects,” with reference to the enjoyment of certain privileges and immuni- ties, not extended to the masses of the population. These latter, however, — under many systems of government consti- tuting a large majority of the populace,—are entitled to national protection, in return for the allegiance which they yield the state. The first class is composed of the individuals in the com- munity who are invested by the actual government with full political privileges, as well as civil rights; while the second class comprises those who enjoy civil rights only. Among political privileges may be enumerated the privilege to vote and to hold office ; among civil rights, is the right to protec- tion and security to person and property, under the funda- mental law of the society of which individuals happen to be members. It will be seen that the enjoyment of the highest ‘and most valuable prerogatives of a citizen are practically much qual- ified and restricted. They are under the control of, and are 1 Antislavery Examiner, A TREATISE ON CITIZENSHIP. 5 regulated by the actual law which represents the sovereign power of the state; whereas the enjoyment of the custom- ary rights which pertain to the masses of the population are practically unqualified and unrestricted. In addition to protection to life, liberty, and property, the class which exercises political privileges in a community par- ticipates in the governing power either by themselves or their representatives. The class which enjoys civil rights is equally entitled to complete protection to life, liberty, and property; but the individuals composing it cannot exercise political privileges under any claim founded simply upon the possession of civil rights. “Nothing is more difficult,” said Calhoun,! “than the definition or description of so complex an idea as a citizen ; and hence, all arguments resting on one definition in such cases almost necessarily lead to uncertainty and doubt. But though we may not be able to say with precision what a citi- zen is, we may say, with the utmost certainty, what he is not. He is not an alien. ‘Alien’ and ‘citizen’ are correlative terms, and stand in contradistinction to each other. They, of course, cannot co-exist. They are, in fact, so opposite in their nature that we conceive of the one but in contradis- tinction to the other.” “In the United States,’”’ says Lawrence,? “it is incorrect to suppose that alien, as opposed to ettizen, implies foreigner as respects the country. Indians are the subjects of the United States, and therefore are not, in mere right of home birth, citizens of the United States. . . . This distinction be- tween citizens proper, that is, the constituent members of the political sovereignty, and subjects of that sovereignty, who are not therefore citizens, is recognized in the best author- ities of the public law. (See Puffendorf, “ De Jure Nature,” Lib. VII. cap. 23). For the same reason, a slave, it is clear, 1 Ina speech in the Senate of the United States, April 2, 1836. 2 Ed. Wheaton’s Int. Law, p. 899. 6 A TREATISE ON CITIZENSHIP. cannot be a citizen.” — Opinions of Attorneys-General, Vol. VII. p. 749. “ Citizenship, in its narrow sense, confers the imprescript- ible right to speak for the community, to act as its authori- tative exponent. It is the true voice of the people (vox popult), and is ascertained by the general consent, as mani- fested in the fundamental law and in the history of the com- monwealth. It varies in different countries, and in the same country at different epochs. It may be recognized by the written law or merely by usage and tradition. In England it is vested in the body of freeholders; in the United States and France, in the adult male citizens. In constitutional govern- ments it utters itself through the suffrage ; in others, through the power of public opinion. But the state exists by virtue of the people who compose it. No people, no state. Hence it ought to be for the people.” 4 § 4. It is a doctrine of international law that each state warrants, or is presumed to warrant, full and complete protec- tion to the life, liberty, and property of all the individuals within her jurisdiction. This protection the state is pre- sumed to extend to alien friends, resident or commorant within her territory, as well as to her own citizens or sub- jects. The extent or character of this protection may not, however, be measured out to alien friends, as it may be to citizen or subject; for as it is her concern alone, it is competent for the state to deny to her own citizen or subject protection; she may not, however, refuse protection to an alien friend within her jurisdiction, except at her peril. And it is, in part, the province of international law to see that full and complete protection is extended to alien friends within foreign jurisdictions. Whenever a state fails to give alien friends this protection, she is usually held to accountability by the state of which the alien is citizen or subject; and it 1 Wm. Preston Johnston, A Theory of the State, not published. A TREATISE ON CITIZENSHIP. 7 is the privilege of each state to determine what individuals possess the national character, and what individuals, irrespec- tive of this character, shall be entitled to her protection, as well as to decide how far, under the circumstances of each case, this insistance shall be carried.? § 5. In the law of nations, “citizen” is a term applicable to every member of the civil society, every individual who belongs to the nation. This character is acquired in various ways, according to the laws of each state. In many states birth is sufficient to confer it; so that the child of an alien is a citizen from the fact of having been born within the territorial limits and the jurisdiction? In other states parentage suffices, and the child of a citizen,® although he may never have placed his foot on the soil of his fathers, is likewise a citizen.* 1 Phillimore, Int. Law, Part V. ch. 1; Grotius, Lib. II. cap. 25, sect. 9, 11; Vattel, Lib. II. cap. 6, sect. 7. The case of Koszta, which is discussed more fully hereafter in the text (supra, p. 1), affords an apt illustration of the distinction pointed out. For it may be admitted, for the sake of argument, that although Koszta did not possess, at the time of his apprehension, the full and complete rights of American citizenship or American nationality, he was nevertheless, under the circumstances, justified in demanding, and was entitled to receive, the national protection of the United States. To secure Koszta’s arrest, the territory of Turkey was invaded by Austria; and it was no doubt primarily the duty of Turkey to protect him while on her soil; but the sovereign being unable to afford this protection, authorities. of the United States, who happened to be present, intervened; and the ground of interference by the United States, as stated in the despatches of Mr. Marcy, was the inability or refusal of the Turkish sovereign to shield from violence an individual who was entitled to American protection, 2 Jt is so in England and in the United States [but the births must be “ within the jurisdiction”). It was so formerly in Spain; but the rule now is that he is a citizen of Spain who is born in Spanish dominion, of father or mother, or at least of a father, who was born or has established a domicile in the kingdom of Spain. 3 The legitimate child follows the status of the father ; the illegitimate child takes the status of the mother. 4 It isso in England (Stat. 4 Geo, II. ch. 21). It is the father, not the 8 A TREATISE ON CITIZENSHIP. Elsewhere, domicile, that is, a peculiar character of estab- lishment, or a certain number of years of continuous residence, from which is inferred the intention to remain permanently, adapts or fits aliens to obtain citizenship (habilita @ los extrangéros para obtener la ciudadanid); and in nearly all states the sovereign is accustomed to concede citizenship, on compliance with certain conditions, as a privilege to aliens. [ Bello, “ Derecho de Gentes,” Paris, 1864, pp. 73, 74.] Every human being has a fixed domicile, which originally is the place where his parents lived at the time of his birth, or if that place is not known, the place of which he has the earliest recollection, or, beyond his recollection, where he was first seen and known -by others; and that continues to be his domicile until he acquires another. It was said by a court of New York that residence or domicile is more a question of fact than of law, and depends less upon the application of any general rules than upon a consideration of the circumstances of the particular case, it being usually the result of voluntary action.} The dominion of a state operates as well upon aliens as upon citizens, but in a different way. Dominion over the former follows the limits of the territory: the state cannot give laws or orders to individuals who are not members of the civil society, except when they are within its territories.” Under the laws of Great Britain and the United States, the impressment of an individual with the character of citizen, or member of the civil society into which he is born, is not, however, exclusive.® mother, who transmits the character of subject of England by birth to the child born in a foreign country. In France, by art. 10, Civil Code, the father or the mother. In Spain, according to Law 7, czted, the same rule is followed as in England, provided the father has not contracted a domicile out of Spain. ' In Matter of Thomas Bye, 2 Daly, 525, New York C. P. Sp. T., 1869. Wait’s N. Y. Digest Reports, Vol. IV. p. 303. ° Pando, Elementos de Derecho Internacional, pp. 140, 141. 825 Edw. III. Stat, 2; 7 Anne, c.5; 4 Geo. IT. 21; 13 Geo. III. cap. 21. United States Revised Statutes, sect. 1993, 1995, p. 351. A TREATISE ON CITIZENSHIP. 9 There are two classes of persons who by the law of Great Britain are deemed to be natural-born British subjects: 1. Those who are such from the fact of their having been born within the dominion of the British Crown. 2. Those who, though born out of the dominion of the British Crown, are by various general acts of Parliament declared to be natural-born British subjects. By an act of Congress, passed Feb. 10, 1855, it is provided that ‘* Persons heretofore born, or here- after to be born, out of the limits of the jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the rights of citizen- ship shall not descend to persons whose fathers never resided in the United States.” There was no authoritative definition of the phrase, “ citi- zen of the United States,” until the promulgation of a com- paratively recent act of Congress, which is usually referred to as the Civil Rights Bill Every Frenchman born of a Frenchman in a foreign coun- try isa Frenchman? As to children born in France, they were under the code French if their fathers were French, aliens if their fathers were aliens, but with a right in the latter case to claim French citizenship on making a declara- tion and fixing their domicile in France. An exception has been introduced, however, by a law passed in 1851, by which, if the alien father were also born in France, the child is deemed French, but is at liberty to claim the status of an alien on attaining twenty-one years of age. The Prussian law of 1842 declares that “ every legitimate child of a Prussian subject is, by birth, a Prussian subject, even though born in a foreign country.” 114U.S. Statutes at Large, p. 27, sect.1; U. 8S. Rev. Statutes, sect. 1992, p. 8351; 16 Wall. (U. 8.) Rep. p. 36. 2 Code Napoleon (Art. 10). 10 A TREATISE ON CITIZENSHIP. In Italy, the child of a citizen is a citizen. When the father is unknown, the child of a citizen-mother is a citizen. When the mother has lost her citizenship before the birth of the child, the dispositions of appropriate articles of the code become applicable. If even the mother is unknown, a child born in the kingdom is a citizen. The child of an alien who has maintained his domicile within the kingdom uninterrupt- edly for ten years is considered a citizen; residence for commercial purposes is not sufficient to constitute domicile. The child may, however, elect to be considered an alien on making the declaration prescribed in Article 5. When the alien has not maintained his domicile in the kingdom for ten years, the child is considered an alien; but the dispositions of the first two paragraphs of Article 6 are applicable to the case.? “« Of these two tests of nationality — the place of birth and the nationality of the father — neither is at present adopted without qualification by British, French, or American law. The laws of these countries exhibit, in fact, different combi- nations of the two, Great Britain and the United States laying chief stress on the place of birth, while in France the father’s. nationality determines, though not absolutely and in all cases, that of the child; and this latter theory has found acceptance among other European nations.” 2 «« Aristotle defines a citizen to be one who is a partner in the legislative and judicial power, who shares in the honors of the state, while he who has no part in them is a mere so- journer and alien. Aédyerar padiota Toditns 6 peTéyov TAY TLILOV ... WOTEP LETOLKOS Yap ETTLV OTH Ti@Y mI pweTéxwv.” — Aristotle de Respub. Lib. III. cap. 5 D.2 In some of the Gre- 1 Revised Code of Italy. 2 Report of a Commission appointed by the Queen of Great Britain for inquiring into the Laws of Naturalization and Allegiance ; — Papers on Expa- triation, Naturalization, and Change of Allegiance: Washington, 1873. 8 «Fyrom this it is clear that there are many sorts of citizens, and that he who shares the honors of the state may be called a complete citizen. Thus Achil- A TREATISE ON CITIZENSHIP. 11 cian states particular privileges were granted to aliens, such as the right of marriage, the right of acquiring landed property, immunity from the tax imposed on resident aliens. The class which possessed these combined privileges was called ico- teheis. They were a favored class at Athens, who enjoyed all civic rights except those of a political nature. They bore the same burdens as the citizens, and could plead in the courts, or transact business with the people, without the intervention of a mpoordrys (patron). According to Niebuhr, the rights referred to, which were generally expressed by the word icorodrela (equality of civic rights), were the result of relations entered into by treaty between two per- fectly equal and independent cities, mutually securing to their citizens all those privileges which a resident alien could exercise not at all, or only through the mediation of a guar- dian. The privileges enjoyed by a freeman of a city, in virtue of its isopolity, were also conferred on individuals in uncon- nected states by the relation of mpofevla. The mpdfevas enjoyed special privileges, which were greater than those of the icorede/s. They bore the same burdens as the citizens, but were not put on the list of citizens nor enrolled as mem- bers of a djpos or didn. Such persons enjoyed the same rights and privileges as the ico7oXirns.1_ But these did not extend to the assembly of the people (‘‘ History of Rome,” Vol. I. p.38) ; nor were they citizens, according to Aristotle’s definition, recurring to which “ we find the essential proper- ties of Athenian citizenship to have consisted in the share possessed by every citizen in the legislature, in the election les, in Homer, complains of Agamemnon’s treating him ‘like some unhon- ored stranger’; for he who shares not in the honors of a state is, as it were, a stranger; and whenever such a thing as this is concealed, it is for the sake of deceiving the inhabitants.” — Aristotle, Book III. ch. 5, translation of Ed- ward Walford, London, 1853. 1 Ajuos (rAjG0s), — the commons, the people, the free citizens of Athens. od}. — a union according to local habitation, like English hundred or county. péroixot, —a general class of aliens at Athens corresponding to that of the pere- grint at Rome. 12 A TREATISE ON CITIZENSHIP. of magistrates, in the Soxiuacla (enrolment or muster), and in the courts of justice.” —Smira, Dictionary of Greek and Roman Antiquities, p. 289.1 § 6. “He, and he only, is a citizen,” says Aristotle, “ who enjoys a due share in the government of that community of which he is a member.” “He is justly a citizen,” says the same authority, ‘“‘ who is created such by the act of the com- monwealth.” Among the ancients, birth of itself never fixed political station, or conferred the privileges of a citizen. Both the Athenians and the Romans acted wisely and liberally on the subjects of naturalization and allegiance.” There was a time, when, under the influence of feudal ideas, nationality was determined exclusively by the place of birth, ure sol. But it was not so anciently ; for under the laws of the Athenians, as among the Romans, the child fol- lowed the nationality of its parents, and it was the tie of blood —Jjus sanguinis — which determined nationality. ® The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage.* § 7. Under view of the law of nations, natives, or natural- born citizens, are those born in the country, of parents who are citizens. The country of the father is that of the children. When children come to the age of discretion,5 when they attain their majority, or when they are in any other way emancipated, as in the case of a woman marrying, who, as 1 Lawrence, Naturalization and Expatriation, Appendix to Wheaton, p. 892. 2 Naturalization and Allegiance (Miscellaneous Pamphlets, Congressional Library, Washington). 8 Stoicesco, Etude sur la Naturalisation, Paris, 1876, p. 286. 4 Vattel, sect. 216-220. 5 Vattel, Book I. p. 101. ® Foelix, Droit Int. Privé, N. Y., pp. 56, 57, ed. 1866. A TREATISE ON CITIZENSHIP. 13 the result of marriage, is no longer sub potestate parentis, — they may abandon the society into which they were born, and acquire a different national character. It is necessary that a person be born of a father who is a citizen of the country ; for, if he is born of a foreigner, it will be only the place of his birth, and not his country.1 The legal presumption in favor of the nationality of birth, or the domicile of origin, continues until proof of change.? “ The nationality and the domicile of origin are preserved as long as the child is a minor; for during this period, he has not, legally speaking, any will. But as soon as, agreeably to the law of the domicile of origin, the child attains the age of majority, he is free to change his nationality and to choose another domicile. There is a legal presumption in favor of the preservation of the original nationality, or the domicile of his origin, up to the time of proof of a change.” 3 § 8. “ There is,” says McLeod, “something in the idea of native country which is intimately connected with the doc- trine of allegiance. It is not, however, the spot of earth, upon which the child is born that connects him with the national society, but the relation of the child’s parents to that society. In the ordinary concerns of life, there is no need of such minute distinctions; and the majority of men are possessed of too little discrimination to be able to under- stand it. Even statesmen are not always wise; and design- ing men find it for their interest to keep up a confusion of ideas upon important subjects. In the present discussion, nevertheless, it is necessary that I distinctly state to you the true bond which connects the child with the body politic. It is not the inanimate matter of a piece of land, but the moral relations of his parentage. Let a child be born within the walls of a church, this does not make him a church-member ; 1 Vattel, Book I. p. 101. 2 Foelix, Liv. I. p. 57, ed. 1866. 3 Ib. pp. 56, 57. 14 A TREATISE ON CITIZENSHIP. but if the parent or parents be in connection with the church, so is the offspring.” } “If we judge of the country of a man by any other rule than that where his permanent residence is fixed, and to which he politically belongs by his own will, and the enjoyment of the privileges of citizenship, we must establish a principle which will be partial and capricious: (1) one age and nation, judg- ing by its ideas and prejudices, will say a man belongs to that country where his ancestors resided; (2) another, where he himself was born; another (8) where his parents were; and another (4) again where they resided and lived at the time of his birth ; others (5) again will dispute and contend as to whether he belongs to that country in which his father or his mother may have resided or been born, etc.” ? “ Residence produces an attachment. Education cherishes affection for the scenes of early life; but only moral relations lay the foundation for moral obligation. It is the enjoyment of the privileges of society that lays the foundation for obedi- ence to its authority. It follows from this, that, protection being the end of civil government, the sovereign has no other claim upon the allegiance of the subject than what arises from the protection which he affords. As is the protection which I ask and receive, so is the fealty which I owe. If I ask none, I am under no allegiance ; if I receive none, I have nothing to return. It is the very essence of despotism to claim author- ity over me without an equivalent.” ° § 9. ‘* When we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in prefer- ence to every other state, that he is bound to serve with ut- 1 Political Pamphlets, — Expatriation and Allegiance,—Congressional Li-. brary, Washington, D. C. 2 Naturalization and Allegiance, Miscellaneous Pamphlets, Vol. IV. p. 20, Congressional Library, Washington, D. C. 3 Tb. A TREATISE ON CITIZENSHIP. 15 most efforts.” — Vattel, Book I. ch. xi. sect. 122. “There is no obligation,” said an American author in 1815,! “ from the social compact upon man to continue in allegiance to the government under which he was born.” And this is, in sub- stance, the language of Vattel. After stating that there was great diversity and much con- fusion of opinion as to the nature and obligations of allegiance, the executive branch of the United States Government many years ago insisted that the sounder and more prevalent doc- trine was that which denied the claim of perpetual allegiance and conceded the right of expatriation? § 10. The language of Vattel® is: “ By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular ; for it is not naturally the place of birth that gives rights, but extraction. Children born at sea, out of the country, in the armies of the state, in the house of its ministers at a foreign court, are reputed native citizens. Every man, born free, may examine whether it be convenient for him to join in the society for which he was destined by his birth. If he finds that it will be of no advan- tage to him to remain in it, he is at liberty to leave it.” These and similar expositions of public or international law, by civilians and publicists generally, are only confirma- tory, and constitute developments of the doctrine jus san- guinis, which prevailed among the ancient free republics, preceding the feudal doctrine jus sol, which had its existence and recognition in a governmental system based upon feudal tenures and military vassalage. The influence of the wiser principles and more liberal ideas of the early republics is felt, and is apparent to-day in the legislation and practices of modern European states and of America. 1 « (Euvres, edition 162], Du Droit d’ Aubaine, Part I. ch. i. n. 1. A TREATISE ON CITIZENSHIP. 135 “ Collective naturalization extends at the same time to the husband and the wife, to the father and the children. We have seen that this naturalization results immediately from operation of the law or from political acts; the one and the other at once govern all the inhabitants or subjects of the territory.” ‘The individual naturalization of the husband carries with it that of the wife; the wife passes with him under the em- pire of the new country chosen by the husband. This is the result of the intimate tie which unites the spouses, sanctioned by all legislations, and thus passed into a principle of inter- national law. So that whenever an alien in France obtains naturalization, his wife acquires at the same time, and by law, the French character, without the necessity of any declaration or other act on her part.” “ The doctrine of Foelix,” says Demangeat, “ according to which the wife always and necessarily has the same nation- ality as the husband, seems to present this advantage, — that it would prevent serious difficulties and embarrassing conflicts between the personal statutes of the two spouses. But I think, with MM. Delvincourt, Duranton, Demante, and Va- lette, that this doctrine ought to be rejected (repoussée) as iniquitous and as contrary to the spirit or intention (a pensée) of our legislature. In fact, besides the discussion of Article 214 of the Code Napoleon in council of state, M. Regnauld de St. Jean d’Angély says, ‘ that beyond question the husband has not the right to make his wife an alien, but that nevertheless he ought not to be obliged to separate him- self from her whenever his business carries him beyond French territory.’ In the session of the sixth thermidor, year IX, this was the way in which the First Consul expressed him- self: ‘There is a great difference between a Frenchwoman who marries an alien and a Frenchwoman who, having mar- ried a Frenchman, follows her husband when he expatriates himself: the first, by her marriage, has renounced her civil rights, the other only loses them to do her duty.’”’ 136 A TREATISE ON CITIZENSHIP. Further, the difficulties resulting from conflict between the law of the husband and the law of the wife do not necessarily present themselves as the consequence of the doctrine which I uphold. In fact, although the husband may not deprive the wife of her nationality, he may, on the other hand, de- prive her of her domicile ; the married woman, except in case of separation (séparation de corps), has no other domicile than that of her husbandt Then, if it be conceded that the personal statute depends on domicile and not on nationality, the result will be that the spouses, although not members of the same nation, will be subject to the same per- sonal statute. Article 8, of the Code Napoleon, presents nothing to the contrary of this view, for it supposes a French- man resident but not domiciled in a foreign country.” Every man born and domiciled in France, of twenty-one years.of age; every alien of twenty-one years of age, who, being domiciled in France for the period of one year, and who lives by his labor, or acquires property, or marries a French- woman, or adopts a child, or supports an old man; finally, every alien who shall be deemed by the corps législatif to have deserved well of mankind, is admitted to the exercise of the rights of citizen of France.® After the Constitution of 1793, an alien, in order to become a French citizen, had to begin by a declaration of his intention to establish himself in France. The notice to the council of state (conseil d’état), which was provided for by the Constitution, was never inserted in the Bulletin of Laws (Bulletin des Lois) ; it had not, indeed, legislative authorization. Moreover, it was admitted at the chancellor’s office (@ la chanceellerie) that the point of de- parture of the ten years of residence or time of probation * Code Napoleon, art. 108. * See, M. de Savigny, tome VIII. sect. 363. (Foelix, Vol. I. pp. 93, 94, note by Demangeat.) | 3 Constitution of 1798, art. 4. * Tit. xi, art. 10. A TREATISE ON CITIZENSHIP. 137 (stage) was not necessarily the authorization to an alien to establish his domicile in France. A valuable and interesting history of the civil status of aliens in France under ancient and modern law, up to the year 1842, will be found elsewhere.? In the last chapter the author discusses particularly the status of an alien natu- ralized; of an alien permitted by the king to establish a domicile in France; of an alien with whose country France has concluded a treaty; and the status of ex-Frenchmen. The existing law of France in respect to an alien naturalized is stated with fulness by a contemporary author.’ § 100. While marriage does not have any effect upon the citizenship or nationality of the husband,‘ it is usually said it operates a change in the status of the wife, — provided, of course, her original citizenship or nationality be different from that of her husband. Under these circumstances, at the moment of marriage the woman loses her citizenship or nationality, and is covered with that of her husband; and this citizenship or nationality thus acquired generally con- tinues during the existence of the marriage union. To this effect appear to be the laws of several modern states.5 The law of France recognizes a special method of naturali- zation peculiar to women, and resulting from marriage.® A full discussion of the marriage contract at common law and the marriage contract in the United States will be found 1 Poelix, Vol. I. pp. 85, 86. 2 Histoire de la Condition Civile des Etrangers en France. Par Charles Demangeat. Paris. 3 Cogordan, La Nationalité, pp. 128 ef seg. * Pothier, Traité des Personnes, 1*° partie, tit. ii. sect. 3, t. xxiil. p. 269 ; Stoicesco, Etude sur la Naturalisation, p. 211. 5 Code Napoleon, March 8, 1803, ch. i. No. 12; Laws of Prussia, Dee. 81, 1842; Ley de Extrangeria, July 4, 1870; Codice Civile del Regno d'Italia, Lib. I. tit. i.; Statutes of Great Britain, 7 and 8 Victoria, c. 66, sect. 16; Statutes of United States, Feb. 10, 1855; Foelix, Droit Interna- tional Privé, Vol. I. p. 98; Stoicesco, Etude sur la Naturalisation, p. 214. 8 Cogordan, La Nationalité, pp. 255 e¢ seq. 138 A TREATISE ON CITIZENSHIP. in Lawrence’s “ Legislation comparé et Droit International sur le Mariage.” This author treated very fully the question of “ The Disabilities of American Women married abroad.” Pothier says! that an alien who has lived many years in France, who has married there, who has had children there, is not the less regarded as an alien. § 101. Another method of naturalization was effected under the ancient law of France, by virtue of treaty stipulations between states, or by decree of the state. They might apply immediately, or after a time agreed upon, to all or some of the citizens or subjects of the proprietary sovereigns of respective territories.” ““Change of nationality,” says Foelix,? “results from the sole operation of law, or from acts of the individual. To the first class belongs the marriage of a woman, according to the terms of Articles 12 and 19 of the French civil code, and of analogous laws copied from this code.” Demangeat, however, combats this position, and says: “It does not seem to us accurate (exact) to present this change of na- tionality, which operates upon the person of the wife, as the result of the solé operation of law, and not of the act of the individual. According to our view, the law intends to lay down a presumption; and the legal presumption is not ex- travagant, for the woman who marries a man who she knows is an alien sufficiently testifies by the very act that she consents to change her nationality. So far we may admit without difficulty that if, after the marriage, the husband loses his nationality as the consequence of acts in which the wife has not participated, this will not exercise any influence in relation to the nationality of the woman; indeed, the spirit 1 Traité des Personnes, 17° partie, tit. ii. sect. 3, t. xxiii. p. 269. 2 Demangeat, Condition Civile des Etrangers en France, n. 48, p. 205 e¢ suiv.; Ib. op. citata, n. 47, p. 194; Stoicesco, Etude sur la Naturalisation, pp. 212, 216; Foelix, Droit Int. Privé, Vol. I. p. 83, note. 8 Traité de Droit International Privé, Paris, Vol. I. p. 82. A TREATISE ON CITIZENSHIP. 139 of the law is not by any means that the woman necessarily belongs, and in every case, to the same nationality as the hus- band. It seems to us always difficult to go to the extent of saying that the woman is free to escape the application of Articles 12 and 19, in making a declaration of her wish in this respect outside the celebration of marriage ; from the moment she marries an alien, it must be that she consents to lose her own nationality. In a word, we admit freely that the act of marrying an alien is a voluntary act of the woman, which brings about the change of nationality ; but we believe that in the opinion of the legislator, it brings it about forcibly.” Colmet-Daage ! does not admit the distinction drawn by Demangeat. § 102. Some authors hold that during coverture the na- tionality of the wife, if different from that of the husband, is suspended ; but other writers insist that the national charac- ter of the woman is not necessarily, and without her consent, changed absolutely as an inevitable incident of marriage. Foelix sustains the first system ; but a contrary doctrine is upheld by Demangeat, de Delvincourt, de Duranton, de De- mante, and de Valette, who insist that the opinion expressed by Foelix ‘is iniquitous, and contrary to the spirit of French legislation.” The better opinion is that marriage confers certain privi- leges of national character upon the wife, but does not arbi- trarily deprive her of the political privileges which she had before marriage; and it has been decided that neither marriage to a foreigner, nor residence in a foreign country, necessarily deprives the wife of the national character of origin.? 1 Revue de Droit Francais et Etranger, tome I. p. 401. But see Cogor- dan, La Nationalité, pp. 255, 257. 2 Phillimore, Int. Law, p. 350; Field, Int. Code, p. 135. 8 Case of Mary Biencourt, No. 235, before United States and Mexican Claims Commission, Washington, D. C. See also Cadwalader’s Leading Cases on International Law, pp. 35, 36. 140 A TREATISE ON CITIZENSHIP. After citing the text of Article 19 of the Civil Code of France,! Cogordan comments as follows: “It is hardly neces- sary to remark the error of language in this text: all that the law [of France] may say is, that a Frenchwoman who marries a foreigner is no longer French. _ But it is the prov- ince of the foreign law, of the law of the husband, to decide whether it will accept as its own subjects of a foreign state. Article 19 contains a provision (une disposition) which evi- dently oversteps the limits of municipal legislation.” 2 § 103. The rule that during coverture the nationality of the wife is suspended, or merged in that of the husband at the time of the marriage, is subject to exception and qualifica- tion. This method of a change of national character, when produced, is altogether a result of the marriage union, with which it has been held to be coincident and conterminous ; and it terminates, or rather may terminate, at the option of the woman, at the moment of legal separation, and any time thereafter, whenever her legal status or condition as feme sole exists: it matters little what may be the character of the separation, or how it may happen, provided it be a legal separation. And this change of nationality at the option of the woman determines the status of the minor children, who remain under her control so long as they are under the disability of minority. But minor children may be emancipated by operation of law. The wife also may be emancipated during coverture, so as to enable her to change or to preserve her nationality.? 1 “The Frenchwoman who marries an alien follows the condition [status] of her husband.” — Translation. 2 La Nationalité, Paris, 1879, p. 259. ; 8 During the French Revolution (1793) many wives of the emigrés deemed it necessary for the preservation of the fortune of their children and their own personal safety to procure acts of divorce.” — Vie de Mme. de la Fayette. Par Mme. de Lasteyrie, sa fille, p. 285. Paris: Zecherren Fils. In the year 1806 a feme covert was naturalized by the United States A TREATISE ON CITIZENSHIP. 141 § 104. “The nationality and the domicile of origin is pre- served during all the period of the minority of the child; because during all this time he has not, legally speaking, any will. But as soon as, agreeably to the law of the domicile of origin, the child attains his majority, he is at liberty to change his nationality and to select another domicile. There is a legal presumption in favor of the preservation or con- tinuance of the native nationality, or of the domicile of origin, until proof of change. From this it follows that whenever an individual has two domiciles in two different territories, the preference should be in favor of the place of birth. More- over, it is a principle not denied that temporary absence is not sufficient to establish proof of a change of nationality or of domicile.”1 But the fact of naturalization in a foreign country is conclusive; and the evidence of such fact is the letter or certificate, issued or granted by the naturalizing country.? § 105. As a general rule, it is true that “a woman marry- ing takes her husband’s domicile, and changes it with him. A minor child has the domicile of his father, or of his mother if she survive his father; and the surviving parent with whom a child lives, by changing his or her own domicile in good faith, changes that of the child. And even a guardian has the same power.” 3 Circuit Court of the District of Columbia. Ev parte Marianne Pic, 1 Cr. C. C. 392. In March, 1880, a Frenchwoman (Frances Rougger) applied for naturalization papers in Cincinnati: and this case is said to raise several new questions as to the rights of women and foreign persons. 1 Poelix, Droit Int. Privé, Paris, 1866, pp. 56, 57. As to presumption of law in favor of domicile of origin, Foote, Private International Jurisprudence, pp. 11 e¢ seg.,.citing Crookenden v. Fuller, 29 L. J. P. & M. 1; Somerville v. Somerville, 5 Vesey, 786. * Laws of Spain, Italy, France, Germany; Opinion of Umpire in Del- gado’s case, and in the Dominguez case, United States and Spanish Commis- sion, 1879. 3 Parsons, Rights of a Citizen of the United States, p. 645. 142 A TREATISE ON CITIZENSHIP. Lord Chief Justice Cockburn, in his work on nationality, expresses the opinion: “That the nationality of a married woman should always follow that of the husband, whether original or acquired ; but on widowhood, a woman should be entitled to resume her original nationality on returning and settling in her former country.” (p. 216.) And again he says, “ On the other hand, provision is made in all the continental codes for enabling a woman whose nationality of origin has thus been changed into that of her husband, to resume, if so minded, her original nationality on becoming a widow, on the condition, however, if not resident in the country of origin, of returning to it, for which in some instances the authority of the state is required.” (p. 25.) It will be observed that the learned author, in his mono- graph, employs the expression “ nationality” when he means to describe citizenship, or the relation which involves alle- giance and protection reciprocally, and not terms of a less definite or a narrower signification, sometimes used as synon- ymous. In doing this, he keeps constantly and prominently in view the status of the individual in relation to the state, while avoiding altogether the confusion into which other writers have been drawn, as a result of the use of loose or inexact terminology. § 106. The second edition of Field’s *‘ Outlines of an Inter- national Code’’? contains the following articles: — “Except as provided in Article 260, marriage does not change the national character of the wife.” “ Marriage gives to the wife the privileges of the national character of her husband, but does not deprive her of the privileges of that which she had before marriage, except as prescribed by the next article.” ? 7 1 Articles 249, 259, 260, pp. 182, 135, 136. 2 In a note to this article the author says, ‘This should seem to be the proper rule. Marriage ‘may change her civil rights, but it does not affect her A TREATISE ON CITIZENSHIP. 143 “The marriage of a woman in her own country with a foreigner domiciled therein should certainly not denational- ize her. The objection of double allegiance does not preclude her enjoying the privileges. As to the effect of marriage on nationality, see Annual Register, 1868.” “ If before or after her marriage, the domicile of a woman is permanently removed from the territory of the nation to which she previously belonged, she acquires by such marriage and removal the national character of her husband.” § 107. As in the case of married women, this change of national character springs from and is the result of marriage with an alien and a change of domicile, it is natural and consistent that, on conclusion of this union and abandonment of this acquired domicile, the right of the woman to resume her native domicile, and with it her national character, or to choose a new one, should revive. And so it is, according to the law and practice of France. “ The French courts,” says Phillimore,! “ have most justly decided that the wife legally separated from her husband may choose her own domicile.” 2 In this connection the author quoted means of course to indicate national domicile; or, in other words, to nar- row the term, and to employ it only in this, its limited signification. The description, “ legally separated,” includes, of course, di- vorce a mensa et thoro, death, and any other separation known to nature, or recognized as absolute by law. “I am not aware of any decided case in England upon the question o1 political rights or privileges.’” Story, J., in Shanks v. Dupont, 3 Peters’ U.S. Sup. Ct. Rep., 246. This case was, as it will be observed by the reader, decided before the passage of the Act of Congress, Feb. 10, 1855, 110 U.S. Statutes, 604. 1 Int. Law, Vol. IV., p. 65. 2 Arrét du 23 novembre, 1848; Dalloz, Ann. 849, ii. 9. 144 A TREATISE ON CITIZENSHIP. the domicile of a wife divorced a mensa et thoro; but on prin- ciple it seems to me that there can be little doubt that in England, as in France, it would not be that of her husband, but the one chosen for herself after the divorce.” 4 § 108. In construing the act of Feb. 10, 1855, the Supreme Court of the United States? said: “‘ His (the husband’s) citi- zenship, whenever it exists, confers, under the act, citizenship upon her. The terms ‘who might be naturalized under the existing laws’ only limited the application of the law to free white women.” We shall see that marriage, in its effect upon the wife, is by some writers regarded as one of the methods of naturali- zation;? but it may well be doubted whether marriage can be described as a method of naturalization, strictly speaking, or can be said to have the full effect, or impose all the obliga- tions that result from and are implied by naturalization proper. It has been said that the wife, at the moment of marriage, loses her citizenship and acquires that of the husband; but perhaps it would be more correct to say, with the author first cited, “The condition of the wife, from the standpoint of nationality, is temporarily lost in that of the husband.” If this description be qualified by adding the words “ during ‘the marital union,” it is undoubtedly correct; for the mo- ment this relation ends, by legal separation, as suggested by Phillimore, the woman may, at option, resume her nationality of birth, or she may acquire a new one. The common-law idea that husband and wife are one, and that the husband is 2 Phillimore, Int. Law, 1874, Vol. IV. pp. 63, 64; see, however, Dolphin », Robins, 7 H. L. C. 390. ?"Kelly 0. Owen, 7 Wallace, 496. It has been frequently said that the mar- riage of an alien woman to a citizen naturalizes her. Leonard v. Grant, Op. Deady, J., U. 8. Circuit, Oregon, Dec. 15, 1880; Bishop on Marriage, Wo- man, sect. 505 ; Regina v. Manning, 2 C. & K. 887; Burton». Burton, 1 Keyes, 359. 8 Stoicesco, 211, 212; Cogordan, p. 255. A TREATISE ON CITIZENSHIP. 145 that one, applies, of course, only during the existence of the relation. ‘“‘ Marriage gives to the wife the privileges of the national character of her husband, but does not deprive her of the privileges which she had before marriage, except as pre- scribed by the next article.” } “ By Roman civil law, in whatever way the wife came under the dominion of her husband,? she passed from under the patria potestad of her father and her own family, and she lost all her rights in connection with that family, but she entered into the family of the husband, in which she ac- quired, after a certain fashion, the character and rights of a child: ‘Filia loco incipit esse; nam si omnino, qualibet ex causa, uxor in manu viri sit, placuit eam jus filia nancisci.’” This resulted, in great measure, from the principle which insisted upon the subjection of women. But, from what- ever cause it springs, we have seen, in late years, under a practice recognized by British and United States statutes, numerous instances where the rights of married women have been so far extended as to result in practical emancipation, at law, from the ancient dominion of the husband. § 109. “It is true,” says Merlin,’ “that there is a general maxim that the wife follows the condition of her husband ; but it would be a great error to infer from this maxim the consequence that a woman who has either become French by marriage, or was born French, can lose her status and quality as a Frenchwoman by the naturalization of her husband alone.” Equally erroneous would be a similar inference from this doctrine that the wife has no other domicile than that of her husband. Laws relating to status and capacity are not 1 Field, Int. Code, sect. 259, p. 135. 2 Ortolan, Instituciones, Madrid, Lib. I. 24, 51. 8 Qu. de Droit, Divorce, xi. 10 146 A TREATISE ON CITIZENSHIP, governed by the mere law of foreign domicile, apart from naturalization, it is presumed, Merlin means.! § 110. The historical connection, as well as instances in which collective naturalization has resulted from annexation of foreign territory, is traced at some length by a recent French author.2 “ The Civil Code” (of France), says this author, “ contains no reference to any transfer of allegiance from this point of view, although this method of naturaliza- tion was recognized by the law of nations and by political usage. Special laws, political treaties, and diplomatic con- ventions govern the situation of inhabitants of annexed ter- ritory.”® And he considers that the silence of the civil legislator (of France) on this point is dictated by prudence, and by a desire not to excite the susceptibilities of neighbor- ing nations. § 111. “During the interval allowed by treaties to exer- cise the right of election of nationality, persons belonging to territory annexed occupy an uncertain status. If during the period allowed choice has not been made, or more generally if the election has not been actually made, either because the time has expired or because the official before whom the choice has been made was not qualified, the persons who fall within the treaty become retroactively citizens of the country which has annexed a portion of foreign territory. If, on the contrary, the election has been actually made, it is deemed that the individuals have never ceased to enjoy the nationality of choice. But here is a question which has given rise to some difficulty: Does naturalization, resulting from annexation, produce the same effects with regard to women and minors who may be in the territory annexed? And in this case may 1 Phillimore, Int. Law, Vol. IV. p. 324. * Stoicesco, Etude sur la Naturalisation, 344 ef seg., Paris, 1876. 8 Tb, 344, A TREATISE ON CITIZENSHIP. 147 they enjoy the right of election? In speaking of naturaliza- tion proper we have conceded that its effects do not extend to the wives and children of naturalized foreigners; this is because naturalization is a personal act, a kind of contract between the naturalized citizen and the nation which adopts him, —a contract which can avail only with regard or refer- ence to the contracting party. Nationality, as the result of marriage and birth, constitutes a right acquired by the wife and children: the father of a family, thereafter changing his nationality, cannot in any manner deprive them of this ac- quired right; his naturalization, voluntary and purely per- sonal, may not prejudice either the wife or the children of the naturalized foreigner. It is not so with regard to naturaliza- tion which results from annexation: there is no doubt but: that this collective naturalization extends to the wife and children of him who changes his nationality as the result of annexation.” § 112. “We have seen, however, that treaties give the right of election as a method or means of escaping the conse- quences of annexation. Individuals of age and enjoying their rights have only to fulfil certain conditions to preserve the nationality of origin. But the wife and the children have not the same capacity; the acts of the wife, concerning her status, are subordinated to the will of the husband, or at least changes are not permitted to her except by his authority. On the other hand, minor children are incapable of express- ing their will: neither silence nor election may be imputed to them; for to make a valid election it is necessary to be master of one’s rights.” § 113. “With regard to minors we believe that the prin- ciples conceded in regard to ordinary naturalization should apply in cases of annexation. The child follows the status of his father from the time of his birth ; from that instant he 148 A TREATISE ON CITIZENSHIP. has a nationality which nobody can change without his consent. Silence, as election, on the part of the father in his name may not be imputed to the child; the father is not master to dis- pose of the nationality of his son, in case of annexation as in every other circumstance, or at least, in order to clothe him with this right, a special law giving him this power, or an ex- press stipulation in the treaty, would be necessary. Such is the opinion of Dalloz,! which has been sanctioned by a decree of the 16th of December, 1828, by the Court of Grenoble.” § 114. The Frenchwoman who becomes an alien by mar- riage with a foreigner resumes the character of citizen of France from the time that she returns to France, and de- clares her intention to reside there with the permission of the executive of the state.2— And Stoicesco says that it has been concluded by some authors from this that the converse of the proposition must be true, namely, that an alien woman who becomes French as the result of marriage resumes her nation- ality from the time the marriage is dissolved and she becomes resident abroad. But he adds that the contrary opinion has prevailed, and he cites French authorities and decrees of courts of France to this effect.2 This author then enters upon a discussion of the cognate questions which were in- volved in the “ Affaire Bauffremont.” 4 § 115. By marriage with a French citizen an alien woman acquires French citizenship or nationality ;° this result fol- lows only in cases where the marriage is valid. By the law of France the nationality of the wife of a citizen of France, thus acquired, continues after the death of the husband,’ but the right to resume the nationality of origin, or to ac- 1 Droits Civils, 593. 5 Civil Code, art. 12; Stoicesco, p. 825. 2 Civil Code, art. 19, Stoicesco, p. 329. ® Stoicesco, p. 327. 8 Ib. p. 329. ‘ 7 Tb, 329. 4 Jd. pp. 329 et seg. A TREATISE ON CITIZENSHIP. 149 quire a new nationality, which may be exercised after dis- solution of the marriage union, is recognized in modern public law and in the law of France. § 116. The children born of an ex-Frenchman in France, who can bring themselves within the conditions, and who desire to regain French citizenship, may have recourse to Arti- cles 9 and 10 of the Civil Code; they will invoke Article 9 if they reclaim the character of Frenchmen in the year follow- ing their majority; if they have allowed this year to pass without having reclaimed the title of French citizen,! they will invoke Article 10. We refer to the author just cited for a full discussion of the status of children born in France of foreign parentage, and of children of a French citizen who has lost the character of Frenchman, as well as of children of a naturalized foreigner.? § 117. An interesting and instructive discussion on the conditions required by the law of France for naturalization proper may be found in the pages of a very recent French author. This author considers, in the order of time, the several articles of the code and decrees of the French courts which bear upon the. subject. The distinction between nat- uralization (naturalisation simple), and extraordinary natural- ization (grande naturalisation) is pointed out, as well as the alterations of the term of residence in France, as effected by successive legislative action. § 118. At present the matter of naturalization in France is regulated by the laws of the 3d of December and of the 29th of June, 1867. Ordinary naturalization (la naturalisa- tion ordinaire) is granted by decree of the head of the state, that is to say, by the president of the republic, to an alien 1 Stoicesco, Etude sur la Naturalisation, p. 315. 2 Ib, pp. 286-325. 8 Ib, pp. 243-272. 150 A TREATISE ON CITIZENSHIP. of twenty-one years of age who solicits the character of citi- zen. The applicant must first obtain the authorization of the French government, to establish himself and to fix his domi- cile in France; he must reside in France during three years consecutively, from the day when the request for the authorization of his domicile was registered at the depart- ment of justice; after this, an administrative inquest is or- dered by the government as to the moral character of the applicant. The decree of the president of the republic, granting the naturalization, is then rendered on the advice of the council of state. When all these formalities have been complied with, the alien becomes a French citizen, en- joying all the rights which citizens of France by origin or birth enjoy. Extraordinary naturalization (la naturalisation eaxtraordi- naire) is that which was accorded to aliens who have rendered important services to France; who have introduced into France either an industry or useful inventions; who have brought there distinguished talents; who have built up great commercial enterprises, or who have created large agricultu- ral establishments. Such persons may be naturalized after one year’s residence from the date of establishment in France. Apart from the term of residence, applicants for extraordi- nary naturalization must comply with the same conditions as for ordinary naturalization. An exception has been made since 1867, in favor of alien employés of French legations and consulates; these, though actually residing in foreign territory, may be naturalized by compliance with the other conditions required by the law for naturalization: their sojourn abroad is assimilated to resi- dence in France. Extraordinary naturalization (la grande naturalisation) no longer exists. Every act of naturalization to-day produces complete effects ; the individual admitted acquires the same rights as a native Frenchman. A TREATISE ON CITIZENSHIP. 151 § 119. Formerly letters of naturalization were issued by the sovereign power to the applicant, and publication of the fact was made in the Journal of the Laws (Bulletin des Lois). But since 1848 decrees of naturalization are rendered in the ordinary form of decrees emanating from the head of the state, and are inserted in the Bulletin des Lois; and at the same time a copy is transmitted to the alien who is natural- ized, a minute is preserved among the state archives. At present the proceedings are conducted in one of the bureaux of the council of state (la section du contentieux au conseil d'état), and the proof results from the decree conferring the naturalization, and from its insertion in the Bulletin des Lois. The decree of the 17th of March, 1809, placed the right to confer naturalization in the number of the aieibutes of imperial sovereignty. § 120. Further consideration of the text of the same au- thor,! and the authorities cited by him, leads to the following conclusions: First, that the naturalized alien obtains the same rights and privileges as if born in France; second, that the effects of naturalization date only from the moment of naturalization ; third, that it is irrevocable, — that is to say that the alien, once naturalized as a citizen of France, will only lose his character as such citizen in the same way as the native Frenchman would; fourth, that naturalization pro- duces its effects only in the future, and that it is not retroac- tive; fifth, the effects of naturalization are individual and personal, and concern only the individual who has obtained this favor. It is asked, however,? whether the effects of. the naturali- zation of the father should extend to the children. With regard to children conceived they benefit without doubt by 1 Stoicesco, Etude sur la Naturalisation, pp. 272, 285. 2 Ib. pp. 274 et seg. See also Sirey, Code Civil, Annoté, pp. 68, 69; Jd. Supplement, pp. 14, 15. 152 A TREATISE ON CITIZENSHIP. the naturalization of the father; it cannot be said in this case that the child conceived is reputed born; because, as has been remarked by our eminent professor, M. Bufnoir, this would be to turn against the children a principle justly intended for their advantage. MM. Aubry and Rau are of the same opinion ; and they say, children born subsequent to the naturalization are French. Besides, this question cannot admit of doubt, for the reason that the nationality of the child is determined by that of its father at the moment of birth. -§ 121. ‘*We come now to the case of children born ante- _cedent to the naturalization of the father. With regard to these, the question was stoutly contested prior to the law of 1851: a distinction was made between the children who were minors and the children who were of age of the alien natural- ized. It was admitted that the latter preserved the nation- ality of origin, but that the children who were minors became French from the moment that the father was naturalized; in a word, it was maintained by this system that the effects of the naturalization extended to the minor children born ante- cedent to the naturalization. The minor, said the advocates of this system, had not any will that availed in the eye of the law, above all to decide a question that is so important, and one which concerns status, like that of nationality; it is for this reason that the infant minor should follow the condition of his father. The nationality of the minor is as the reflection of the nationality of the father; now, when the nationality of the father changes, that of the son should change also, pro- vided he isa minor. A second argument invoked in support of this system was that it is desirable to avoid a difference of nationality between father and children. The co-existence of two different nationalities in the persons of father and child may lead to distressing consequences ; it would be very shocking, for instance, if the law should establish certain in- A TREATISE ON CITIZENSHIP. 153 capacities of succession, either on the part of the father, or on the part of the son. Add to this the greater inconvenience which would result from the co-existence of two different nationalities in the person of the parent who exercises the paternal power (la puissance paternelle), and in the person of the infant minor. Very respectable authors, among them Duvergier and Foelix, maintained the first system. In the second system it was contended, on the contrary, that the effects of the naturalization of the father should not be extended to the children, whether majors or minors. Nationality, in effect, is a personal quality (character), an essential question, which touches the status of the child, and upon which the law itself has pronounced, by conferring upon him a nationality of origin. The child, says the law, has the nationality of the father; henceforth, it is for him an acquired title, of which no representative can deprive him. The father has not the right (authority) to renounce, in the name of his minor children, the benefit (privilege) of their nationality of origin. With regard to them, as long as they are minors they cannot claim the benefit of the naturalization granted to their father, without having personally fulfilled the conditions upon which this benefit (privilege) is made dependent; and much less can their will during minority avail, in the eye of the law, to decide a question so important as that of nationality. This (second) system has already prevailed in practice and in doctrine. § 122. The arguments in support of the first system are easy to answer. The first contention is that the child should take the nationality of the father. This rule applies at the moment of the birth of the child; but it should not lead to the inference that every change of status in the person of the father reacts upon the person of the child. With regard to the second contention, the matter is perhaps a little more serious; in fact, the co-existence of two different nationalities 154 A TREATISE ON CITIZENSHIP. in father and child is unnatural; but there is no solution which does not present some inconvenience. Even accepting the first system, this inconvenience is not gotten rid of, for it always prevails in respect of children of age at the time of naturalization of the father; the latter preserve the nation- ality of origin. The arguments in support of the first system are then of very little value; but before the question had been solved by legislative decision, the second system had already prevailed; d’Aguesseau in one of his briefs, Merlin, Duranton, and later Demolombe, Aubry, and Ray, and other reputable authors had upheld it.” § 123. “It has been said that the effects of naturalization are personal and individual, and that they concern only the person who has obtained this favor.” 4 Children who are minors at the time of the naturalization of an alien in France may, on reaching majority, claim the character of citizen of France, agreeably to Article 9 of the Civil Code.? The question whether the effects of naturalization of the husband, after marriage, extend to the wife has been much discussed in French jurisprudence. The author just cited gives at length the conflicting views which have been presented in favor of affirmative and nega- tive answers to the question, and concludes that the wife is not affected by the naturalization of the husband during mar- riage. ‘ The husband,” he says, ‘“‘has no right to make his wife a foreigner without her consent. Naturalization is, as we have said, a sort of contract between the alien and the nation which adopts him. This contract cannot have any effect except with regard to the parties contracting. The wife does not then change her nationality unless she is naturalized separately.” $ 1 Stoicesco, p. 274. 3 Ib, p. 284, 2 Ib. p. 278. A TREATISE ON CITIZENSHIP. 155 § 124. The same author then proceeds to discuss ‘“ natur- alization by operation of the law of France,” — which he de- fines to be certain particular kinds of naturalization specially governed by the Code, and by virtue of which an alien may acquire the character of French citizen, by complying with certain conditions less exacting than those required by natur- alization proper.t There are five classes of privileged aliens who may thus become citizens of France by “naturalisation par le bienfatt de la lot”: First, children born in France of alien parents; second, children, the issue of parents who were originally French, but who have lost this character before the concep- tion of the child; third, the alien woman who marries a Frenchman ; fourth, the child of an alien subsequently nat- uralized ; fifth, the descendants of religious fugitives.? § 125. The number of aliens (étrangers) —the peregrini of contemporary times — living in France is very large, and it is generally made up of a wealthy and intelligent popula- tion? It often happens that these aliens, once settled in France, give up all idea of returning to their native land, abandon their country, and, adopting the manners and habits of the French people, so mingle with them that after a certain time it is often difficult to distinguish them. ‘“ As to this class of persons the question is asked, May they not be considered as naturalized, although they have not complied with the conditions made requisite in this respect by legisla- tive will? Are individuals in this equivocal condition aliens, or are they French?” 4 M. Delvincourt insists that the class of individuals just described are naturalized,® as the result of 1 Stoicesco, p. 285. 2 7b. pp. 285, 286. 8 Tb. pp. 236, 237. 4 Ib, p. 237. 5 The number of Americans alone who live in Paris, and have apparently established a domicile in France, is estimated at thirty thousand. And it was to determine the status of this description of persons in relation to the United States that President Grant invited the attention of Congress. 156 A TREATISE ON CITIZENSHIP. this long occupation (possession d'état), by which they have lost their nationality of birth. Proudhon thinks that such aliens occupy a middle state between Frenchmen and aliens properly so-called,—a situation complex or neutre; such is the position of an alien who has renounced his country to establish himself in France, and whom Proudhon designates by the name incola. By such a fixture (establishment) of domicile an individual attaches himself to the customs, or rather to the life of the people in the midst of whom he finds himself, or where he discharges public duties. This alien, by origin, cannot be considered as without a country, and he cannot be placed outside of all law; it is necessary that his person, as well as his acts, should be subordinated to some legislation. Now, as he has abandoned his native or proper country, no law, except that of France, can apply to him. And Stoicesco! concludes, following Proudhon’s system, that these aliens, so-called, are French from every point of view, except that of succession. The third system, diametrically opposed to the first, is elaborately developed by Demolombe,? and considers the individuals in question as aliens in the broadest signification of the word. § 126. “The question,” says Stoicesco,? ‘has lost a little of its interest as the result of recent legislation’; and he then resumes the arguments made use of in support of the third sys- tem.* But it still retains some of its importance because, even in reference to civil rights, aliens are not on the same plane as citizens of France. 1 Stoicesco, p. 239. * Droit Civil, Liv. I. tit. i. ch. i, No. 172, tome I. pp. 204 e¢ saiv., edition 1874. 8 Ib. p. 240. * See the law of the 14th of July, which abrogates Articles 726 and 912, in the matter of succession and gifts (de succession et de donation) ; also, the law of 1867, abolishing duress (/a contrainte par corps). A TREATISE ON CITIZENSHIP. 157 Mr. Field? states the existing rule as follows : — _“ A person who has ceased to be a member of a nation, without having acquired another national character, is never- theless deemed to be a member of the nation to which he last belonged, except so far as his right and duties within jts ter- ritory, or in relation to such nation, are concerned.” Such persons are said to number many thousands in France.2 By the French law they have a French status if domiciled there,’ even if domiciled without authority, but their national character is uncertain. Valette (sur Proudhon, tome 1, p- 200) is of opinion that if domiciled in France they are French. But this is denied by Boileux.® § 127. What has been described, too often loosely and inac- curately, as “double allegiance” was noticed by nearly all of the earlier publicists. But “double allegiance,” within proper limitation of the expression, is not, and never was intended to be understood, as a synonyme for “double citizen- ship or nationality.”’7 * The law of England, and of civilized countries, ascribes to each individual at his birth two distinct legal states or conditions, — one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; an- other, by virtue of which he has ascribed to him the charac- ter of a citizen of some particular country, and, as such, is 1 International Code, second edition, p. 130. 2 Heffter, Droit International, sect. 38, subd. 1, note 2. 8 1 Boileux, p. 58. 4 Tb. p. 63. 5 Heffter, above. 6 1 Boileux, pp. 52, 62. See Marcel Michel, De la Capacité requise pour P Acquisition et la Perte de la Qualité Frangais. Aix, 1878. 7 «What is sometimes called local and temporary allegiance, but is more properly termed obedience, is due to every government from aliens and strangers sojourning within its jurisdiction.” Argument of Charles O’Conor in the case of the Brig-of-War General Armstrong, before the U. 8. Court of Claims at Washington, D. C., Nov. 17, 1855.— Great Speeches by Great Lawyers, Snyder, p. 191. 158 A TREATISE ON CITIZENSHIP. possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or con- dition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries, whereas the civil status is gov- erned universally by one simple principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status; for it is on this basis that the personal rights of a party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must depend.” 4 Allegiance is defined by Sir E. Coke to be “a true and faithful obedience of the subject due his sovereign.” ? In the words of Mr. Justice Story, ‘ Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the domin-: ions and under the protection of a particular sovereign. Two things usually occur to create citizenship: first, birth, locally within the dominions of the sovereign ; second, birth, within the protection and obedience, or in other words, within the legiance of the sovereign. ‘That is, the party must be born within a place where the sovereign is, at the time, in full pos- session and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obe- dience or allegiance to, the sovereign as such de facto. There are some exceptions which are founded upon peculiar rea- sons, and which, indeed, illustrate and confirm the general doctrine.” 3 The customary law of England formerly distinguished between national and local allegiance. Under the law, the rule as to natural allegiance was expressed in the maxim, * Per Lord Westbury, Udny v. Udny, 1 H. L. Sc. p. 441. See Moorhouse v. Lord, 10 H. L. Cas. 272; Shaw v. Gould, L. R. 3 H. L. 55, App. 457. ? Calvin’s Case, Rep. 5. 8 83 Peters (U.S. R.), 155. A TREATISE ON CITIZENSHIP. 159 “ Nemo patriam in qua natus est exuere nec legeantio debitum ejurare possit.” And this maxim, which originated in feudal times, had its warrant in feudal customs, which recognized and sustained a military vassalage. It is a doctrine which was never countenanced by modern publicists. But under provisions of a recent act of Parliament, even Great Britain abandons the doctrine of perpetual allegiance, recognizes the right of expatriation, makes provision for the naturalization of natural-born British subjects, and facilitates the naturaliza- tion of aliens as British subjects.! Anciently, by the common law of England, local allegiance was such as was due from an alien or stranger born, whilst he continued within the dominion and protection of the Crown; but it was merely of a temporary nature, and ceased the instant such stranger transferred himself from this king- dom to another. In the matter of nationality the legislation and practice of Great Britain is now in substantial accord with the legisla- tion and practice of continental nations and the United States. § 128. The existence of a permanent allegiance (which de- scribes the character of obligation a citizen or subject owes the state or nation of which he is a member) and temporary alle- giance (which describes the obedience due by an alien to the laws of the jurisdiction in which he happens to be commorant) is everywhere recognized; and the distinction between the two is well settled. ‘During the residence of aliens amongst us they owe local allegiance.” 2 The whole extent to which the doctrine of double alle- giance may be legitimately carried is well expressed by Blunt- 1 33 Vict. ch. xiv. See, also, Treaty between United States and Great Britain, May 18, 1870. 2 Kent, Commentaries, Lecture IV. p. 64. 160 A TREATISE ON CITIZENSHIP. schli: “‘ Certain persons may, in rare instances, be under the jurisdiction of two different states, or even a greater number of states. In case of conflict, the preference will be given to the state in which the individual or family in question have their domicile; their rights in the states where they do not reside will be considered as suspended.” } If the oath of allegiance is the first tie which binds the citizen to the state, it is evident that the individual cannot appeal (appeler) simultaneously to two sovereignties, to two distinct nationalities. Man is free in regard to the civil duties to which he is willing to submit himself; but the very nature of things does not permit him to multiply moral and political obligations essentially irreconcilable. § 129. Every individual must be a member of some politi- cal society ; but he may not have more than a single citizenship or national character. It would seem to be the doctrine of modern public law, . that though a person may apparently have a double citizen- ship or nationality, yet whenever circumstances arise which make two citizenships inconsistent, he must elect and deter- mine which one he will prefer.? The existing rule may be stated as follows: “A person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a member of the nation to which he last belonged, ex- cept so far as his rights and duties within its territory, or in relation to such nation, are concerned.’’ It is by no means an easy matter, even at this day, to shrink from the duties or to yield the privileges of citizenship, whether native or acquired; and it is still necessary to con- 1 Bluntschli, International Law Codified, sect. 394. 2 Westlake’s Private International Law, p. 21, sect. 22; 1 Boileux, pp. 52, 62; Zouche, cited swpra. And that this is the only consistent, rational, and philosophic doctrine, see Field’s Int. Code, second edition, pp. 129, 130. 3 Field, Int. Code, second edition, p. 130, note. A TREATISE ON CITIZENSHIP. 161 ’ form to certain rules and regulations, which are substantially the same among civilized states. It is sometimes asked, “ May a citizen of a state, by whose laws expatriation is declared to be an inalienable right, abandon his country, without acquiring a citizenship in an- other state?’’? The writer thinks not. “A man without a country,” may be an entertaining sub- ject in fiction ; but the public law of modern states is not disposed to recognize such a nondescript. A North Ameri- can Indian, born in the wilderness, is probably the nearest approach, in modern times and in actual life, to such concep- tion. Any doctrine which recognizes a double citizenship or double nationality attempts to perpetuate a political hybrid, which is as abnormal and monstrous as its prototype in the natural world: and the expression even must disappear as soon as that wise and judicious system which Savigny almost created becomes universal. The basis of this system is the principle which insists that there should be a harmony rather than a conflict of laws. The contrary principle, which seeks to perpetuate a conflict of laws, is a relic of barbarism, and is rapidly disappearing from view. § 1380. After a review of the whole subject, the first propo- sition which the late Chief Justice Cockburn laid down in his conclusion was expressed in the following language: ‘ That under a sound system of international law, such a thing as a double nationality should not be suffered to exist.” 1 In an instructive and suggestive paper on “The Legal Position of the Indian,” it is insisted that the Indian is not a person within the meaning of the [original] constitution, or the earlier arnendments, and that while, as against individuals, he is completely protected, as against Congress he is helpless. 1 Nationality, pp. 214, 215. 11 162 A TREATISE ON CITIZENSHIP. Congress may break its treaties with him, as it may repeal a statute (Cherokee Tobacco, 11 Wall. 616).1 The author of the article just quoted points out further that the Indian has not been made a citizen of the United States as a result of the adoption of the Fourteenth Amend- ment. In concluding his discussion of the question, the author says: ‘If an Indian is made a person subject to the laws of our country, we may look for a series of cases arising under the Fourteenth Amendment, and the legislation enacted there- under, which will teach the next generation a wholly new conception of the division of powers between our national government and the state governments.” A different view from that expressed in the article just cited, as to the actual legal position of the Indian in the United States, has been taken in a recent debate in the Senate of the United States.2 It will be observed, however, that several senators, whose opinions are worthy of consider- ation, spoke with a degree of caution on the subject. The exposition of law in the opinion rendered by a majority of the Supreme Court of the United States in the Cherokee Tobacco Case, never seemed to the writer satisfactory. The writer’s conception of the relations and obligations of the United States, under treaty stipulations with the Indians, is more in accord with the views entertained by the dissenting justice? It is the habit to describe the Indians as the “ wards” of the nation; but when the nation enters into solemn compacts and agreements, like treaties, it must be as equals that the two contracting parties come together. The writer has elsewhere expressed his opinion in respect to the obligation of treaty stipulations.* 1 The American Law Review, January, 1881. ? Congressional Record, Washington, D. C., Jan. 26 and 27, 1881. * Mr. Justice Bradley. * Washington Law Reporter, Vol. VII., No. 7, pp. 52, 53. A TREATISE ON CITIZENSHIP. 163 PART IV. § 181. A MEMBER of a free commonwealth is called a citi- zen. ‘ Aristotle defines a citizen to be one who participates in the legislative and judicial authority of the state.” But in every state there are two classes of citizens, — those who are permitted to participate in the government, and those who are not. All persons born within the state, irrespective of age, sex, or condition, are presumptively citizens; others may be admitted to citizenship either by special legislative enact- ment, or by some form of naturalization under general laws. The children of citizens born while their parents are abroad temporarily, or on the public service, are also citizens. But those only exercise the right of suffrage who, in addition to citizenship, have such other qualifications as the law may have prescribed. In the United States, by the Fourteenth Amendment to the Constitution, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are eit- izens of the United States and of the state wherein they re- side. This amendment put at rest the disputed question whether the freedmen and other blacks were citizens; but it does not embrace Indians who still retain their tribal rela- tions, and who are, therefore, only in a much qualified sense, subject to the jurisdiction of the United States. Sect. 2, Art. 4, of the Constitution, construed in Ward v. Maryland, 12 Wallace, 418, provides that ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”; and the Fourteenth Amendment prohibits the states from abridging the privileges and immunities of cit- 164 A TREATISE ON CITIZENSHIP. izens of the United States. This amendment was construed in the New Orleans Slaughter House Cases, decided by the Supreme Court of the United States in April, 1878, in which it was shown that the privileges and immunities which belong to a citizen of a state, and those which pertain to a citizen of the United States, are not the same, and that the latter only are protected by the Fourteenth Amendment.! The term “ citizen,” as understood in our [American] law, is precisely analogous to the term “subject” in the common law ; and the change of phrase has entirely resulted from the change of government. The sovereignty has been changed 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? The American use of the term “‘ citizen” is indistinct. A citi- zenship of a particular state is recognized, as well as one of the Union.’ Some years ago an American commentator observed, that it was difficult to say, after the title of citizenship was estab-~ lished, what were the rights which it conferred in the United States ;4 but the Supreme Court of the United States has recently pointed out some of these rights.5 The court did not, however, attempt to enumerate or to define all the rights or powers that recent amendments and congressional enact- ments had conferred. § 182. The political rights of a citizen of the United States are defined, established, and protected by the Constitution of the United States and the constitutions of the several states. 1 See Story’s Commentary on the Constitution, fourth ed., ch. 47, and appendix to Vol. II. (The American Encyclopedia, word “citizen.’’) 2 The State v. Manuel, 4 Dev. & Batt. 26; Paschal, Annotated Constitu- tion, p. 274. 8 Westlake, Int. Law, p. 25. * Lawrence and Wheaton’s Int. Law, appendix, p. 903. 5 Slaughter House Cases, 16 Wall. (U.S.) Rep. 36; Crandall o. Lee, 6 Wall. 36. A TREATISE ON CITIZENSHIP. 165 * A constitution is that supreme law which the nation itself makes, as the condition and the limitation of all the powers it will thereafter impart to its political servants. It is the guide which it gives to them all. It is the expression of the de- liberate determination of the whole people that the rights, which it believes to lie at the foundation of all right, shall ever be preserved, — that certain principles, which are to be as the life and essence of all law, shall ever be maintained ; and it divides and defines, and yet connects together, all the or- ganic powers and functions of the state. It governs all leg- islative bodies in the exercise of their functions, for it is the law of the nation. And when the constitution is thus formed it is thereafter the supreme law of every citizen of the state, be he high or low, be it his office to make, to execute, or to judge of law, or only to assist in laying these duties upon others. To every man, and to every man alike, it is a su- preme law. “‘ The imperfect imitations of a constitution on the continent of Europe, and on this continent south of the Union, were never the expression or the creation of the deliberate reason and will of the people; they were never what constitutions should be, and nearly all of them have been torn into tat- ters.” 1 «A constitution, in the American sense of the word, is a written instrument by which the fundamental powers of the government are established, limited, and defined, and by which these powers are distributed among several depart- ments for their more safe and useful exercise for the benefit of the body politic.” 2 § 183. The personal rights of a citizen of the United States have been, in a recent discussion, considered ® under 1 Parsons’s Rights of a Citizen of the United States, p. 3. 2 Mr. Justice Miller (Supreme Court of the United States), Lecture before Law College, University of Georgetown. 3 Parsons’s Rights of a Citizen, Book II. p. 171. ‘166 | A TREATISE ON CITIZENSHIP. seven heads: first, the right to personal liberty; second, the right to personal security; third, the right to freedom of speech and writing ; fourth, the right to freedom of religious faith and profession; fifth, military rights and duties; sixth, the rights and duties of suffrage; seventh, the rights and duties growing out of the domestic relations. § 134. Though there had been, theretofore, many cases, some of which are historic, in which naturalized American citizens, abroad or on the high seas, had secured the interven- tion of the government of the United States in behalf of life, liberty, and property, and although certain administrations at Washington! had manifested vigilance and zeal in asserting this protection, it was not until the year 1868 that Congress formally passed an act declaratory of the obligation of the United States in this respect.2, But the act of Congress, July 27, 1868, is, so far as the right of expatriation was concerned, only declaratory of what was and is now the doctrine of the United States. This right of expatriation had long before been conceded by the continental nations, as will appear from the authorities to be cited hereafter ; and since the French revolution of 1789 it has been solemnly proclaimed and re- iterated throughout the continent of Europe. During the discussion of the act in the Senate of the United States, a member of that body declared himself opposed to the preamble, on the ground that it was unnecessary and superfluous, because such a proposition was not only funda- mental in the Constitution of the United States, but had long been an axiomatic principle, announced by publicists and jurists from the earliest periods, and for many years it had been sanctioned by the nations of Europe. 1 Notably the administration of President Pierce, when Mr. Marcy, as Secretary of State, was intrusted with the conduct of foreign relations. 2 An Act concerning the Rights of American Citizens in Foreign States, 15 Stat. at Large, 223, 224. A TREATISE ON CITIZENSHIP. 167 This act declares in terms that expatriation is a natural and inherent right of all people, and that naturalized citizens shall be entitled to and shall receive the protection of persons and property that is accorded to native citizens in like sit- uations and circumstances. The rapid increase in the immi- gration of foreign-born citizens and subjects to the United States, and the corresponding addition in the number of natu- ralized citizens which naturally followed, resulted in num- berless controversies between states growing out of questions touching expatriation, naturalization, and change of alle- giance. These controversies were constantly recurring, and in 1873 the President of the United States addressed a commu- nication to each head of an executive department, requesting his opinion in writing to a number of questions suggested by these controversies. Answers to these inquiries were given at length by the several members of the cabinet.? § 135. It was provided in the act defining citizenship of Virginia that “ All white persons born within the territory, and all who have resided therein two years next before the pass- ing of this act, and all who shall hereafter migrate into the same, other than alien enemies, and shall take prescribed oath before court of record that they intend to reside therein, and, moreover, shall give assurance of fidelity to the common- wealth,” shall be deemed “‘ citizens.” A section of this act asserted the right of expatriation, and indicated how it should be exercised, as also what persons were deemed aliens.” This act was drawn by Jefferson, and was presented in the house of delegates by George Mason? § 136. But while this act of Congress‘ only declared what had long been the boasted doctrine of the United States, it 1 Foreign Relations of the United States, 1873, Vol. XI. pp. 1177 ef seq., Government Printing Office, Washington, D. C. 2 Act June 26, 1779, 10 Statutes of Virginia, Vol. X. pp. 129, 180. 4 Jefferson’s Correspondence, Vol. IV. p. 7. * July 27, 1868. 168 A TREATISE ON CITIZENSHIP. must be admitted that the occasions have been too frequent in which the Government of the United States has hesitated, or neglected, to protect sufficiently the persons and rights of naturalized citizens abroad. The measure and character of protection — when it was extended—was dependent alto- gether upon the character of the executive or of the cabinet, rather than upon any well-defined and consistent action as the result of a pronounced foreign policy. Indeed, there have been times when it would appear as if the country had no foreign policy in respect to the protection of the persons and rights of American citizens abroad. On occa- sions the attitude of the United States towards her citizens abroad has been discreditable as well as pusillanimous, and it is usually in mortifying contrast with the conduct of Great Britain in respect of her subjects. So vigilant and active has been the intervention of Her Majesty’s Government on behalf of her subjects the world over that it has given ori- gin to the apothegm: “ A British gunboat is always within one hundred miles of every invasion of British rights or interests.” The repeated instances in which the persons and the in- terests of naturalized American citizens have been assailed very recently, demands, and should receive, the serious atten- tion of the executive and of Congress. The principal of- fenders, in this respect, in late years have been Spain and Germany; and the large number of cases in which these states have interfered with American rights and interests, abroad and at sea, seems to indicate the pursuit of a settled policy, which virtually disregards, or defies, the claim to American protection.! The most serious conflicts in recent years, growing out of the protection to naturalized American citizens, have been between the United States and Germany, and the United States and Spain. 1 Foreign Relations of the United States, tit. Spain and Germany, 1879; Proceedings of the United States and Spanish Commission, Washington, D. C. A TREATISE ON CITIZENSHIP. 169 § 187. Under the law and practice of modern states, citizen- ship, or nationality, is generally the result either (a) of birth within the jurisdiction of the state, or (6) of adoption by the state. As to the first, the rule is comparatively simple, and may be readily applied; as to the second, the method is by naturali- zation of an individual, of a community, a people, a province, or a state, or by a change of national domicile on the part of the individual, — instances of which will be hereafter men- tioned. The difficulty in all the controversies arising out of a change of national domicile results from the absence of any fixed rule as to what evidence will be held to be conclusive of the fact. In addition to these methods, as already observed, in the case of women, the original citizenship or nationality is ac- quired or lost as an incident of marriage. It follows, of course, under the same law and practice, that the original citizenship or nationality is lost by naturaliza- tion, whether individual or collective, and sometimes by a change of national domicile. “The people of the states of the American Union are, and have been since the declaration of their independence, subject to two governments, — that of - the individual states and a federal or national government.” } An immediate result of the complex character of the govern- ment of the United States of America, and, until recently at least, the generally admitted existence contemporaneously of two separate and distinct sovereignties, governments, or autonomies, was a dual citizenship,—a citizenship of the United States and a citizenship of some particular state. This twofold citizenship has been recognized since the for- mation of the existing government,? and a_ considerable portion of the inhabitants are invested with this dual char- 1 “The Monarchical Principle in our Constitution.” — North American Review, November, 1880. 2 The Dred Scott Case, 19 How. U. S. S. C. Rep. p. 393; Slaughter House Cases, 16 Wall. U.S. 8. C. Rep. 36. 170 A TREATISE ON CITIZENSHIP. acter. The residents of the several territories and persons domiciled in the District of Columbia furnish instances, which are exceptional, of citizens of the United States whose citizenship may be said to be single. Inconvenience and embarrassment have arisen already, and will, no doubt, con- tinue to arise, from this twofold character, and it has here- tofore been the subject of criticism by foreign juridical writers, who have found the existence of this dual character confusing and inconsistent. Such criticism, however, has its foundation either in a misconception of the structure or work- ing of our government, or in a faulty and erroneous applica- tion of terms in respect to our political system. § 138. The reader will find by reference to preceding pages of this treatise that there existed a corresponding dual citizenship under the Roman system, as follows, to wit, citi- zenship of a municipality within territorial jurisdiction as distinct from citizenship of the republic. It should be ob- served, however, that the analogy just indicated is more apparent and much closer in the relations of the several states to the United States government since the adoption of recent amendments to the Constitution. That the co-existence of such dual sovereignties within the same territory (an almost illimitable reproduction or repetition, in fact, of imperium im imperio) was inconsist- ent and illogical was the constant and iterated con- tention of one school of American statesmen. It was in- 1 The residents of the District of Columbia do not enjoy the right of suf- frage, and are denied the ordinary rights and privileges of citizens of the United States, unless they retain a citizenship in some state of the Union. Senator Benton once described the residents of the cities of Washington and Georgetown as “ political eunuchs.” See Addresses of Thomas J. Durant on the subject of Citizenship, and the right of the people of the District to exer- cise the elective franchise, before a meeting of citizens at Washington, D. C., Jan. 11, 1875, and Jan. 3, 1880. 2 Westlake,, Int. Law, p. 3. A TREATISE ON CITIZENSHIP. 171 evitable that the form of a tentative government of this character, which was admittedly only a compromise measure, would result, sooner or later, in the aggrandizement of the federal, or the independence of the state power. And this was confidently predicted from an early period. It has been said, with sufficient accuracy and truth, that the government of the United States has passed through ‘three forms: 1, the revolutionary; 2, the confederate ; 38, the constitutional; and that the first and the third pro- ceeded equally from the people in their original capacity. It is beyond the scope of this discussion to enter into the fruitful fields which are naturally suggested by reflection upon the above; but the student of political philosophy will find much occupation in the contemplation of this subject at this time. § 1389. One of the serious inconveniences, and, it may be, one of the embarrassments incident in part to a dual citizen- ship in the United States, is the presence of two systems of law in every state in the Union; and, as has been said, “‘ Notwithstanding the theory that the federal courts in the various circuits follow the rules of law laid down by the state courts, they are absolutely bound by the decisions of the Supreme Court of the United States.” ? The advocates of an enlargement of federal, and of a cor- responding curtailment of state powers are encouraged to believe, or affect to believe, that one of the immediate results of the adoption of their views will be something like homo- geneity in the jurisprudence administered throughout the United States. The several acts of Congress providing for the removal of causes from state to federal courts, and the construction put 1 The Federalist; Rights of a Citizen, Parsons, p. 46; Debates in the Convention. 2 The Nation, No. 807, New York. 172 A TREATISE ON CITIZENSHIP. upon these acts by superior federal courts, have already brought about radical changes in this connection.! § 140. It need hardly be repeated here that this tendency towards a homogeneous character in the administration of law is only one of the manifestations of radical mutation in the functional relations of the state and federal governments. An illustration of the growing supremacy of the general government is apparent in the nomenclature in daily use, which serves to symbolize political ideas and sentiments. For many years Washington City was recognized as the capital of the United States, the federal capital. Recently it has become the national capital, the capital of the Nation. And organs and orators write Nation large and state small. § 141. The contest between the advocates of a centralized federal power, and the supporters of independent states with local self-government, has been carried on during years of peace and war; and— whether for good or ill, time alone must determine — the doctrine of centralization (an Huropean idea) has prevailed ; and the doctrine of independent and sovereign autonomies, with local self-government (the Ameri- can idea), has been condemned by an apparent majority. § 142. Under an estimate which may approximate the cor- rect figure, the sovereign power in the United States (mean- ing the persons who exercise, or are entitled to exercise, the right of franchise) is invested in and shared by about 9,000,000 persons; and yet it is the habitual practice to speak of wni- versal suffrage. Of this number of the elect, some millions are said to be densely ignorant, and without property; while of those deprived of the franchise, there are probably millions who are at once intelligent, and the proprietors of great es- tates.2 By the last annual return made to the House of Com- 1 See Removal of Causes, by John F. Dillon. See Stone v. Sargent, Supreme Judicial Court of Massachusetts, Op. by Gray, C. J., in American Law Register, January, 1881, p. 24. 2 Pres. Garfield’s Inaug. Address ; U. 8. Census (Education Statistics), 1881. A TREATISE ON CITIZENSHIP. 173 mons, the number of qualified electors in the United Kingdom was 2,999,229, of whom 1,148,529 were in the counties, 1,822,708 in the boroughs, and 27,992 in the universities. The aggregate number of votes cast last year was 2,088,000. The population of the Roman republic, at the accession of Augustus, was 120,000,000; half of these were slaves, 40,- 000,000 were tributaries and freedmen, only 20,000,000 enjoyed the full rights of citizens. There were 20,000 male citizens of the Athenian common- wealth, and 400,000 slaves. It has been sometimes suggested that suffrage should be restricted to the virtuous and intelligent; but the proposition has not yet met with much favor or encouragement at the hands of “ practical politicians” in the United States. The number of alien passengers arrived in the United States from foreign countries from Oct. 1, 1819, to Dec. 31, 1870, was 6,832,764. It is estimated that the number of alien passengers arrived in the United States from 1789 to 1820 amounted to 250,000.! There are 43,475,506 native Americans and 6,667,360 per- sons of foreign birth. The number of foreign-born persons to each 100,000 natives is 15,309, against 16,875 ten years ago. The census does not give the proportion of aliens to natives holding office, but such a table would show a very active catering for “the foreign vote” on the part of both political organizations. There are 43,404,871 whites to 6,577,151 colored. (Free- dom has largely increased the fecundity of the blacks.) The number of colored persons to each 100,000 whites is 15,153, against 14,528 in 1870.2 1 Appendix to Quarterly Report, Bureau of Statistics, United States, 1879-1880, Washington, D. C. * The year 1880 is likely to be a memorable one in the annals of immigra- tion. It was in that year that the emigrant tide from Europe to these shores touched the highest mark ever known. In 1880 320,800 aliens were landed at Castle Garden. The greatest number reached in any preceding year 174 A TREATISE ON CITIZENSHIP. There are of Indians and half-breeds, not in tribal relations on reservations under the care of the government, 65,122; Chinese, 105,463 ; other Asiatics, 255. It is not likely that the next census will show a large in- crease of Asiatics, for our people have made up their minds, with substantial unanimity, that immigration of that sort must be checked. § 143. “There are two kinds of citizenship under our po- litical system of government,—federal and state; and suf- frage is an attribute of the latter, exercisible in each state under the conditions and qualifications imposed by its consti- tution. The only restriction on the power of the state to. prescribe these conditions is that imposed by the Fifteenth Amendment to the Constitution of the United States, which provides that the conditions shall not be based on considera- tions of race, color, or previous servitude. The state remains free to prescribe such qualifications for suffrage as it may please, provided they apply equally to persons of all races and colors.” — Narr, Suffrage and Elections) ‘The doctrine that the recent amendments to the federal Constitution do not confer the right of suffrage upon any one, and that the right to vote in the states comes from the state, has been repeatedly decided by the Supreme Court of the United States.” 2 The states still retain the power of discriminating in the was 319,200 in 1854. These figures are for New York alone, the great gate through which aliens enter the country. Including the arrivals at other ports, the whole number of European emigrants added to the population of the United States in 1880 was well on to half a million. 1 United States v. Cruikshank, 2 Otto (U.S. Sup. Ct. R.), 542; In re Webhlitz, 16 Wis. 463; Dred Scott Case, 19 How. (U. 8. R.) 405. United States v. Reese e¢ al., 2 Otto (U. 8. Sup. Ct, R.), 214; An- derson v. Baker e¢ al., 23 Md. 531; Sprague v. Houghton, 3 Ill. 377. ® Minor v. Happerset, 21 Wall. (U. 8S. R.) 178; The United States ». Reese ef al., 2 Otto (U. 8. Sup. Ct. R.), 214; The United States ». Cruik- shank ef a/., 2 Otto (U.S. Sup. Ct. B.), 542. A TREATISE ON CITIZENSHIP. 175 right to vote on account of any cause other than those speci- fied in the constitutional amendments.! “Among the absolute, unqualified rights of the states is that of regulating the elective franchise.” 2 § 144. “It is quite clear, then,” says a majority of the Su- preme Court of the United States, through Miller, J.,2 “that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. 1 Jé.; Van Valkenburg . Brown, 43 Cal. 43; Anthony v. Halderman, 7 Kan. 50; 2 Abbott, U. 8. 120. 2 Anderson v. Baker, Maryland Court of Appeals, 23 Md. 531. The following resolutions were adopted by the National Woman’s Suffrage Association at the last annual meeting in Washington, D. C.: — “ Whereas, woman’s demand for suffrage is simply a demand to exercise the right of self-government; to make for herself the same experiment man in- augurated for himself in 76; and whereas the struggle of every human soul from the cradle to the grave is one prolonged declaration in favor of the rights to govern one’s self, — therefore, Resolved, that suffrage, or self-government, is a national inalienable right, and not a privilege that any government can confer or justly withhold. Resolved, that we are a nation and not a confederacy of states. We are all citizens first of the United States, and second of the states wherein we reside; hence the right of self-government should be guaranteed by the national constitution to all citizens ; that with the ballot in their own right hands they may protect themselves everywhere under our flag. Re- solved, that the women of this nation have not as much to fear from a ‘solid South’ as from a ‘ white male dynasty’ in which they have no representation. “ Whereas, a party must have some vital issue to give it life, and whereas the two great political parties are alike divided on finance, free trade, and labor reform, — therefore, Resolved, that the party that would triumph in 1884 would be wise to place a woman-suffrage plank in its platform, — the most important question of human rights now before the people for consideration. Resolved, that to exempt the clergy and church property from taxation, while laboring men and women must bear the added burden, is to recognize a privileged order in union of church and state, an old monarchal idea opposed to the secular nature of our government. Resolved, that it is the duty of Congress to sub- mit to the several states a constitutional 4mendment securing to woman citi- zens the right of suffrage, and before adjourning to pass the bill now on the calendar providing a committee to consider the rights of women.” 3 16 Wall. pp. 36-83, Oct. Term, 1872. 176 A TREATISE ON CITIZENSHIP. “We think these distinctions, and their explicit recognition in this amendment, of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. “ The language is, ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ It is a little remarkable, if this clause was intended as a protection to the citizen of a state against the legislative power of his own state, that the words ‘citizen of the state’ should be left out when it is so carefully used, and used in contradistinction to ‘citizens of the United States,’ in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. “Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the state, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protec- tion of the federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protec: tion by this paragraph of the amendment. “Tf, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the state as such, the latter must rest for their security and protection where they have heretofore restedg for they are not embraced by this paragraph of the amendment. “But lest it should be said that no such privileges and im- A TREATISE ON CITIZENSHIP. 177 munities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the federal government, its national character, its Constitution, or its laws. “ One of these is well described in the case of Crandall v. Nevada, 6 Wall. 36. It is said to be the right of the citizen of this great country, protected by implied guaranties of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its sea-ports, through which all operations of foreign commerce are conducted, to the sub- treasuries, land-offices, and courts of justice in the several states.” And quoting from the language of Chief Justice Taney in another case, it is said, ‘That for all the great purposes for which the federal government was established, we are one people, with one common country; we are all citizens of the United States’; and it is as such citizens that their rights are supported in this court in Crandall v. Nevada. “‘ Another privilege of a citizen of the United States is to demand the care and protection of the federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several states, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States and not citizenship of a state. One of these privileges is conferred by the very arti- cle under consideration. It is that a citizen of the United 12 178 A TREATISE ON CITIZENSHIP. States can, of his own volition, become a citizen of any state of the Union by a bona fide residence therein, with the same rights as other citizens of that state. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered. “But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not. privi- leges and immunities of citizens of the United States within the meaning of the clause of the Fourteenth Amendment under consideration.” ! In these several opinions the expressions, ‘ rights,”’ “ privi- leges,”” and ‘immunities ”’ of citizens of the United States are considered at length, and carefully construed? § 145. In the case of Cruikshank, decided October Term, 1875,8 the Supreme Court said, * Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associ- ated 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. The duty of a government to afford pro- tection is limited always by the power it possesses for that purpose. ‘There is in our political system a government of each of the several states and a government of the United States. Each is distinct from the others, and has citizens of its own, ? See opinions of Field, Bradley, Swayne, JJ., dissenting, where the views of the minority are expressed iz extenso, and the history of the several amend- ments are recited or alluded to. J. pp. 83-180. * Compare with opinion and dissents in above case, Bradwell v. State, 16 Wall. 130; United States ». Cruikshank, 92 U.S. p.542; Tennessee o. Davis; Strauder ». West Virginia; Virginia v. Rives; He parte Virginia; Hx parte Siebold; Ez parte Clarke, 100 U. 8. Rep. pp. 257-422. 3 92 U.S. Rep. p. 542. A TREATISE ON CITIZENSHIP. 179 who owe it allegiance, and whose rights, within its jurisdic- tion, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state; but his rights of citizenship under one of these governments will be different from those he has under the other. The government of the United States, although it is, within the scope of its powers, supreme and beyond the states, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the states. “The right of the people peaceably to assemble for lawful purposes, with the obligation on the part of the states to afford protection, existed long before the adoption of the Constitution. ‘The protection of its enjoyment was not, though, intrusted to the federal government: the people must look to the states where the power for that purpose was originally and still remains. The right to bear arms, also, is not protected by the Constitution: it is a matter of state regulation. “The right of the people peaceably to assemble, for the purpose of petitioning Congress for a redress of griev- ances, or for anything else connected with the powers and duties of national government, is an attribute of national citizenship, and, as such, under the protection of and guar- anteed by the United States. The very idea of a government, republican in form, implies that right, and an invasion of it presents a case within the sovereignty of the United States. “ Sovereignty, for the protection of the rights of life and personal liberty within the respective states, rests alone with the states. “The Fourteenth Amendment prohibits a state from de- priving any person of life, liberty, or property, without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws; but it adds 180 A TREATISE ON CITIZENSHIP. nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroach- ment by the states upon the fundamental rights which belong to every citizen as a member of society. The duty of pro- tecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it still re- mains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty. “ Rights and immunities created by, or dependent upon, the Constitution of the United States, can be protected by Congress. The form and manner of that protection may be such as Congress, in the legitimate exercise of legislative dis- cretion, shall provide, and may be varied to meet the neces- sities of a particular right. “The Fifteenth Amendment does not confer the right of suffrage, — that comes from the states; but it invests citizens of the United States with the right of exemption from dis- crimination in the exercise of the elective franchise, on ac- count of their race, color, or previous condition of servitude, and empowers Congress to enforce that right by ‘ appropriate legislation.” The power of Congress to legislate at all upon the subject of voting at state elections rests upon this amend- ment, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such elections is because of his race, color, or pre- vious condition of servitude,” ! § 146. The distinction between political privileges (or rights) and civil rights, heretofore described, has been fre- quently noticed by the federal courts. The relation of the 1 United States o. Reese, 92 U.S. Rep. 214; United States v. Crosby, 1 Hughes (U. 8. Circuit Court), 448; United States v. Canter, 2 Bond (U. 8. Circuit Court), 389. A TREATISE ON CITIZENSHIP. 181 federal to the state government in this connection has also been pointed out. Citizenship and the right to vote are neither identical nor inseparable. The constitution of Min- nesota, although it authorizes resident unnaturalized foreign- ers to vote at state elections and hold office, does not make them citizens of the state; and such persons may remove causes to the Circuit Court of the United States, on the ground that they are aliens, although they have resided in the state for many years, and voted at elections, as authorized by the state constitution, or held office under the laws of the state.} While it is true that citizenship of the United States, or of a state of the Union, does not necessarily include the right to vote or to hold office, yet the exercise of the privilege of suffrage is a good test of the existence of citizenship in a state or in the United States, and it may constitute prima facie evidence of citizenship. A state cannot make a subject of a foreign government a citizen of the United States. This can be done only in the mode provided by the naturalization laws of Congress.2_ Nor can a state impose the rights and duties of citizenship upon aliens who do not choose to take them.? § 147. The constitutions of nearly all the States concede to naturalized citizens of the United States, who may take up their residence within the states, the same privileges as are en- joyed by persons born therein.. Among these may be men- tioned the privilege of voting and the privilege of holding office. Some states, however, require further qualification, or impose restrictions in this respect, which operate to the exclusion from political privileges of large numbers of individuals who enjoy all the civil rights of citizens of the United States.‘ 1 Lanz v. Randall, 4 Dillon (U. S. Circuit Court), 425; see, also, Re Con- way, 17 Wisconsin Rep. 259. 2 Lanz v. Randall ef al., 4 Dillon (U. S. Circuit Court), 425. 8 Re Conway, 17 Wisconsin Rep. 259. 4 Massachusetts, Pennsylvania, Georgia, Delaware, Rhode Island; see constitutions and laws of these states in respect of voters and electors. 182 A TREATISE ON CITIZENSHIP. The following resolutions have been introduced in the House of Representatives of the present Congress of the United States, and are now pending before the Judiciary Committee : — “Whereas the laws of several of the states of this Union regulate within their respective jurisdictions the exercise of the elective franchise by prescribing certain conditions, taxes, or requirements, which are claimed by citizens of these states (as appears by a report of a committee of the United States Senate of this Congress) to be in violation of the Constitu- tion of the United States and of the rights of citizens ; ‘« Whereas such regulations of the elective franchise in such states, and especially in the states of Rhode Island, Massa- chusetts, Pennsylvania, Delaware, Virginia, and Georgja, are claimed to be restrictions upon the elective franchise, whereby certain citizens are excluded from participation in the right to vote; and : “Whereas it is made the duty of Congress to secure to each state a republican form of government, and as in ten states the right of suffrage is denied — “ Resolved, That a committee of five members be appointed by the Speaker to examine into the matters relating to the exercise of the elective franchise in the states named, so far as the same may be in violation of the Constitution of the United States, and authorizing the said committee to send for persons and papers, etc.” § 148. An interesting sketch of the position of some of the founders of the republic, in relation to the adoption of the federal Constitution — which Parsons! calls “a wise and just compromise ”’ — has been, fortunately, preserved. “The three states, Massachusetts, Pennsylvania, and Vir- 1 “The Constitution was a compromise — more than ingenious, for it was a wise and just compromise —hetween extreme views, both of which were pressed with great urgency.”— Rights of a Citizen of the United States, p. 46. A TREATISE ON CITIZENSHIP. 183 ginia, were the largest, and were actively and strenuously in favor of a ‘national’ government. The two leading spirits were Mr. Hamilton, of New York, probably the author of the resolution, and Mr. Madison, of Virginia. In the’ early stages of the convention there was a majority in favor of a ‘national’ government. But in this stage there were but eleven states in the convention. In process of time New Hampshire came in, —a very great addition to the federal side, which now became predominant. It is owing mainly to the states of Connecticut and New Jersey that we have a ‘federal’ instead of a ‘ national’ government, — the best gov- ernment instead of the worst and most intolerable on earth. Who are the men of these states to whom we are indebted for this admirable government? I will name them; their names ought to be engraven on brass and live forever. They were Chief Justice Ellsworth, Roger Sherman, and Judge Paterson, of New Jersey. The other states further south were blind; they did not see the future. But to the coolness and sagacity of these three men, aided by a few others not so prominent, we owe the present Constitution.” + “One of the old-time philosophical politicians has left a volume that moulders on a few dusty book-shelves, under the quaint and curious title of ‘The Lost Principle.’ Long before the Civil War the author had dug out of his deep and thoughtful reflections the fact that one half of the dual char- acter of American citizenship was paralyzed, and he fore- shadowed that under the care of the black nurse it would cease to exist and slough off.” 2 The truth is that the world, impelled by steam and light- ning, moves so fast that critical thought does not keep up with the changes, and, as a contemporary journal expresses it, some of the politicians are still worshipping at Druid altars. 1 John C. Calhoun, 1847. 2 Page McCarty, The Capital, Washington, D. C., Nov. 22, 1880. 184 A TREATISE ON CITIZENSHIP. § 149. The author of a work treating of what he described as the sectional equilibrium,! which was published in the year 1860, used this language: “‘ From the best analysis I have been able to make of the debates in the Virginia Convention, the objections against the (federal) Constitution, as already indicated, may be classed under two heads. From them all others were derived. 1. That the magnitude of the pow- ers intrusted to the federal agent would, in their develop- ment, produce a consolidation of the states into one empire. 2. That the powers thus accumulated at the centre were so distributed between the North and the South that by the trick of minority representation, the latter would be brought under the political vassalage of the former. In the outset, Mr. Henry requested the speakers on the other side to gratify his ‘ political curiosity’ by informing him by what authority the federal Constitution had used the phrase, ‘ we, the peo- ple,’ instead of ‘we, the states.” He regarded the employ- ment of those words as tantamount to a fusion of the states into a single community. Madison promptly, and I think satisfactorily, responded that those words were employed to pass by the immediate agency of the state legislatures, and procure for the new government a popular recognition; and that the mode of its ratification unquestionably established that fact.” § 150. The author just quoted then expresses his convic- tion that the battle over the Constitution was fought on other grounds. He was not an admirer of the character of Madi- son, nor of the part that he played in the convention, or subsequently in national politics; and he charges him with inconsistency and deceit. “He (Madison) presented to the convention what Henry happily termed a piece of ‘ political 1 John Scott, “The Lost Principle: How It was Created, How It was Destroyed, How It may be Restored,” pp. 116, 117. Richmond, Va.: James Woodhouse & Co. A TREATISE ON CITIZENSHIP. 185 anatomy.’ I can say, notwithstanding what the honorable gentleman has alleged, that this government is not com- pletely consolidated, nor is it entirely federal. ... The members to the national House of Representatives are to be chosen by the people at large, in proportion to numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity ; but, had the government been completely consoli- dated, the Senate would have been chosen by the people in their individual capacity, in the same manner as the mem- bers of the other House. Thus it is of a complicated nature, and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confed- eracy.”’! On conclusion of the war between the states, the author of “The Lost Principle ” published a supplement, which will be found curious and interesting? Some conception of the spirit in which the author ap- proaches the discussion of his subject may be formed from the political apothegms selected as introductory to several chapters of his work, as follows: — “In a despotic state, which is every government whose power is immoderately exerted, a real division is perpetually kindled.” 3 «Every government has its nature and principle, and its decay begins with the destruction of its principle.” * «A vice in representation, like an error in the first concoc- tion, must be followed by disease, convulsions, and finally death itself.” ® “There is a great difference between arts and civil affairs : arts and sciences should be like mines, resounding on all sides with new works and further progress; but it is not good to 1 7b. pp. 117 et seg. ? See Letter xi. pp. 53 e¢ seq. 8 Grandeur and Declension of the Roman Empire. 4 Spirit of Laws. 5 Wilson. 186 A TREATISE ON CITIZENSHIP. try experiments in states, except the necessity be urgent or the utility evident; and well beware that it is the reforma- tion that draweth on the change, and not the desire of change that pretendeth the reformation.” 1 § 151. A recent writer has very clearly presented the views of one class of American politicians of the present day. ‘“‘ Before the adoption of the Constitution, sovereignty re- sided in each state. The state then had no superior. Its will was limited only by its physical power. But the states are not now sovereign in any sense. They are now restrained by the Constitution of the United States. . . . Congress is not sov- ereign, for it has only powers affirmatively granted, expressly or impliedly. But the power which can amend the Consti- tution of the United States is dlimitable. Here, then, we arrive at the sovereignty in our systems. Here resides the whole potentiality of the system, which may repartition the powers of the states and the composite state; may redistri- bute the functions now divided between the local govern- ments and the general government; may contract or dilate the sphere of either, ad kbitum; may reduce the central agency to a shadow, or erect it into an empire. The only possible security, in the nature of things, against the exercise in any given manner of this power lies in the genius of our people.” 2 The Supreme Court of the United States, in the case of The Collector v. Day, described the relative powers of the federal and state governments in the following words: — “Jt is a familiar rule of construction of the Constitution of the Union that the sovereign powers vested in the state gov- 1 Bacon. 2 Southern Law Review, Nashville, April, 1873, Vol. IT. p. 321. That, in the opinion of some persons, “the foundations of the American republic have been (already) sapped by despotism” and that “an empire is foreshad- owed,” see article on the above text, The Sun, New York, Oct. 16, 1880. A TREATISE ON CITIZENSHIP, 187 ernments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the Constitution in this respect might not be mis- understood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely, ‘ The powers not delegated to the United States are reserved to the states, respectively, or to the people.’ The government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. “The general government and the states, although both exist within the same territorial limits, are separate and dis- tinct sovereignties, acting separately and independently of each other within their respective spheres. The former in its appropriate sphere is supreme; but the states, within the limits of their powers not granted, or, in the language of the Tenth Amendment, ‘ reserved,’ are as independent of the gen- eral government as that government, within its sphere, is independent of the states. “Such being the separate and independent condition of the states in our complex system, as recognized by the Constitu- tion, and the existence of which is so indispensable that without them the general government itself would disappear from the family of nations.” } Chief Justice Marshall had long ago ventured to declare that “‘ No poetical dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.” 2 “It is now judicially ascertained and established,” said the Court of Claims of the United States of America, so late as 1 11 Wallace Rep. 113. 2 McCullough v. Maryland, 4 Wheat. U. S. Rep. 403. 188 A TREATISE ON CITIZENSHIP. the year 1870,1 “that the legal redress given to a citizen of the United States against the United States is less than he can have against almost any government in christendom, and that the government of the United States holds itself, of nearly all governments, the least amenable to the law.” Curtis? has called the naturalization power a practical con- trol upon the states in the matter of suffrage. He admits that it is ‘indirect,’’ but contends that it is ‘effectual’; and he says, “ For I believe that no state has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not natu- ralized citizens of the United States.” The result of the adoption of the Fourteenth and Fifteenth Amendments, and of congressional action to enforce their pro- visions, as construed in more recent cases, would seem to lead logically, although indirectly, to a practical and efficient trans- ference of the subject of suffrage to the federal jurisdiction. Such an inclination has already been manifested.® “The wise statesman will never restrict suffrage, or ex- clude the lower and more numerous classes from all voice in the government of their country.” * Though the power of naturalization be nominally exclusive in the federal government, its operation in the most important particulars, especially as to the right of suffrage, is made to depend on the local constitution and laws. Suffrage is not incident to citizenship ;° suffrage is not a natural right.” 1 Brown’s Case, 6 U. 8. Court of Claims Rep. p. 172. 2 Commentaries on the Constitution, p. 202, note. 8 Wallace’s Majority Report on Federal Election Laws. Also Minority Report U. 8. Senate; 46th Congress, 2d Session. 4 O. A. Brownson, in The American Republic, p. 322. 5 Lawrence’s Wheaton’s Int. Law, Appendix, 903. ® Cooley, Principles of Constitutional Law, p. 250, 7 Spencer v. Board of Registration, 1 MacArthur, 169; U.S. ». Anthony, 11 Blatchf. 200. A TREATISE ON CITIZENSHIP. 189 “ These provisions,” says Curtis! (referring to a uniform rule of naturalization), ‘* were not only necessary in the act- ual situation of the states, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. ... But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national au- thority an efficient practical control over the states in respect to the political rights to be conceded to persons not natives of the country.” § 152. A corporation is a citizen of the state which creates it.2 It is an artificial person, and it is limited, in its operation in the field of jurisdiction, to the power which created it.? And a corporation is not a citizen within the meaning of the constitutional provision that the citizens of each state shall be entitled to all the privileges and immunities of citi- zens in the several states.* Mr. Justice Field® declared that the term “ citizens,” as used in the constitutional provision, applies only to natural persons, members of the body politic, owing allegiance to the state, not to artificial persons created by the legislature, and possessing only the attributes which the legislature has prescribed. § 158. “Inthe Constitution of the United States the article on the judiciary provides that the judicial power of the United 1 Commentaries on the Constitution, p. 201. 2 Orange, etc., Railroad Co. v. City Council of Alexandria, 17 Gratt. 176. 8 Bank of Augusta v. Earle, 13 Pet. 519. 4 Paul v. Virginia, 8 Wall. 168; Warren Manuf. Co. 2. Atna Ins. Co., 2 Paine, 501. 5 Tb. supra. As to citizenship in the territories, see Prentiss 7. Brennan, 2 Blatchf. (C. C.) 162; Sinks . Reese, 19 Ohio St. 806; Com. ». Clary, 8 Mass. 92. 190 A TREATISE ON CITIZENSHIP. States shall extend to controversies between citizens of dif- ferent states, jurisdiction being thereby made dependent, not upon the subject-matter of the suit, but upon a citizenship of the different states.” ! The question,? therefore, arises whether a corporation is a citizen within the meaning of the above constitutional provision. This question came before the Supreme Court of the United States in 1809, and that court held that the capacity of a corporation aggregate to sue in the courts of the United States depended upon the citizen- ship of the corporators, and that the averment as to citizen- ship must apply to the members of the corporation as individuals, “‘ because it could not be true as applied to the corporation” ;2 and this doctrine continued to prevail until 1844, when the views hitherto prevailing were modified. In Louisville, Cincinnati, etc., Railroad Company v. Leston,* the court declared that “a corporation created ‘by a state to perform its functions under the authority of that state, and only suable theré, though it may have members out of the state, seems to us to be a person, though an artificial one, in- habiting and belonging to that state, and therefore entitled, for the purpose of suing and being sued, to be deemed a citi- zen of that state.’ And now a corporation created by and transacting business within a state is, for the purpose of suing and being sued in the federal courts, deemed to represent corporators who are citizens of such state.’ A foreign cor- poration is likewise deemed to represent corporators who are aliens.® § 154. What are the privileges and immunities which the citizens of each state are entitled to in the several states by 1 See art. 3, sect. 2. 2 “Citizenship,” Central Law Journal, Oct. 8, 1880, p. 284. 8 Bank of the United States v. Deveaux, 5 Cranch, 61. 4 9 Howard, 497. 5 United States Bank v. Planters’ Bank, 9 Wheat. 904; Ohio, etc. Railroad Co. v. Wheeler, 1 Black, 286; Insurance Co. v. Francis, 11 Wall. 210. 8 Society, etc. v. New Haven, 8 Wheat. U. S. Rep. 464. A TREATISE ON CITIZENSHIP. 191 reason of their citizenship, and the constitutional provision above referred to? ‘ We feel no hesitation,” said Mr. Justice Washington,! “in confining these expressions to those privi- leges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent, and sovereign: what those fundamental principles are it would perhaps be more tedious than difficult to determine.” 2 “The Supreme Court of the United States declines to specify what these privileges and immunities are, preferring to decide each case as it arises upon its own particular circumstances.? In the last case cited the question was whether the State of Virginia could prohibit the citizens of another state from planting oysters in a navigable river of that state while it granted the privilege to citizens of its own state. The court. held that it had a right to do so. The decision was pro- nounced by Chief Justice Waite, who said: ‘The right thus granted is not a privilege or immunity of general but of special citizenship. It does not belong of right to the citizens of all free governments, but only to the citizens of Virginia, on account of the peculiar circumstances in which they are placed : they and they alone owned the property to be sold or used, and they alone had the power to dispose of it as they saw fit. They owned it, not by virtue of citizenship merely, but of citizenship and domicile united, that is to say, by virtue of a citizenship confined to that particular locality.’ It may be assumed, however, that this provision protects the rights which pertain to general citizenship as distinguished from a citizenship that is special and local. Among these might be named the right to acquire and possess property ; the right to 1 Corfield v. Coryell, 4 Wash. U. 8. C. C. Rep. 380. 2 Central Law Journal, Oct. 5, 1880. 8 McCready v. Virginia, 94 U.S. 391. 192 A TREATISE ON CITIZENSHIP. the protection of life, liberty, and property; the right of a citizen of one state to pass through or to reside in any other state for purposes of trade, for agricultural or professional pursuits; the right to bring and maintain actions of every kind in the state courts; the right to the benefit of the writ of habeas corpus. The cases in which the courts have been called upon to pass upon this constitutional provision have been numerous, and the limits of this article will not permit a review of them in this connection. We must be con- tent with a simple reference to some of the more impor- tant.” 1 ‘ It was held, before the abolition of slavery, that it was not one of the privileges of state citizenship for a master, in pass- ing through a free state, to take his slaves with him and hold them in servitude? And it is not a privilege of citizenship that persons who are married or reside in a particular state should be entitled in another state to such rights in property under and by virtue of the marriage relation as are given to those who are married or reside in this latter state, but each state is at liberty to regulate these rights according to its own views of what is politic and just.3 “ But no state can discriminate against the citizens of other states in matters of taxation ; and a statute providing for the imposition of license fees, yet discriminating against those not permanently residing within the state, is regarded as invalid.4 The Supreme Court of the United States has recently de- cided that a statute which denies to colored citizens the right and privilege of participating in the administration of the law as jurors because of their color, though qualified in all other respects, is a discrimination against that race forbidden by the 116 Wall. 36; 18 Wall. 129; 16 Wall. 130; 92 U.S. 542; 3 Central Law J. 295; 87 N. J. 106; 21 La. Ann. 484; 2 Munf, 393; 3 Harr. & M. 554; 10 Conn. 340; 3 R. I. 138; 13 Gratt. 767. * Lemmon v. People, 20 N. Y. 562. ® Conner v. Elliott, 18 How. U.S. Rep. 591. * Ward v. Maryland, 12 Wall. 418. © A TREATISE ON CITIZENSHIP. 193 Fourteenth Amendment.! A statute in Illinois provided that every person convicted of larceny should be deemed infamous, and should forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, of serving as a juror, etc. A person convicted under such a law was subsequently pardoned by the governor, and it was held that he was not thereby restored to his competency as a witness. The court said that a pardon could work such res- toration only in cases where the disability was a consequence of the judgment, and not in those cases where the disability was annexed to the conviction.” 2 § 155. If, by the laws of the country of their birth, chil- dren of American citizens born in such country are subjects of its government, the legislation of the United States will not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory. Although the government of one country may grant to persons owing allegiance to that of another the rights and privileges of citizenship, it is not intended to intimate that the government making such grant would thereby, and with- out their consent or change of domicile, become entitled to their allegiance in respect to any of their political duties or relations.* § 156. Recent amendments to the Constitution, followed by congressional legislation to carry them into operation, or to give them effect, together with decisions of the Supreme 1 Strauder v. West Virginia, 100 U. 8. 303. See also Neal v. Delaware, U. S. Supreme Court (October Term, 1880), affirming doctrines announced in Strauder v. West Virginia; Virginia v. Rives, and Bx parte Virginia (100 U. §. 303, 313, 339), reaffirmed: Waite, C. J., and Field, J., dissenting. 2 Foreman v. Baldwin, 24 Ill. 299; Citizenship, Central Law J ournal, Oct. 8, 1880. 3 United States Consular Regulations (1870), p. 40, { 115. 4 Calais v. Marshfield, 30 Me. Rep. 520. 13 194 A TREATISE ON CITIZENSHIP. Court of the United States before referred to have made the general public, but lawyers more particularly, familiar with expressions which indicate to some extent the recent enlarge- ment of the sphere of the federal government.! But it is not, as it seems to the writer, sufficiently kept in view, in the contemporaneous discussions of constitutional questions, in and out of court, that the enlargement of the sphere of the federal government signifies and necessitates a corresponding curtailment of the action of state gov- ernments. The result of this is that the relations of the state to the general government, as existent (whether for better or worse, time will determine), are materially different from what they were upon the adoption of the federal Con- stitution, or what they were actually up to a recent period. One of the primary effects which flow from this difference is the gradual but complete subordination of state to federal power, in matters heretofore considered to have been within ‘the peculiar province of state jurisdiction. Meanwhile con- troversies in the political field are continued by the rival adherents of the two systems. on questions which have been definitively determined by constitutional amendments, and by congressional legislation, sustained by judicial decisions. § 157. Since the above was written, one phase of this sub- ject has been discussed elsewhere in an article which is in- structive and suggestive. The writer shows how far we have advanced upon the views held by leading Federalists, when the Constitution was adopted, and points out the danger of going any further in that direction.? It is by no means easy, as yet, to determine the full import or to forecast the probable outcome and effect of late amend- ments to the Constitution of the United States in connection with recent acts of Congress, and of more recent decisions of 1 The Nation, New York (No. 799), Oct. 21, 1880. * Ceniralization in the Federal Government, North American Review, May, 1881. A TREATISE ON CITIZENSHIP. 195 the Supreme Court sustaining the validity and constitution- ality of certain acts of the federal legislature which have been, within a brief period, before the tribunal of last resort. It may not be denied, however, that a consequent result of the late civil war between the states, as incorporated and ex- pressed in these several amendments, acts, and decisions, has been a revolution in the structural composition as well as in the fundamental character of the relation of all the people to the United States government. The legislative and judicial branches of the general government, — rapidly following a majority of the states in their action, gua states — have con- tributed largely to this revolution by an attempt to bring about unification in the law of the land in respect to the rights, privileges, obligations, and duties which attach to citi- zenship of the United States. As a further result, the rela- tions heretofore existing between the several states, qua states, and the general government have undergone complete metamorphosis. One of the necessary and immediate conse- quences is a corresponding change in the character and nature of the obligations imposed upon the citizen in reference to the state and to the general government. The inevitable ten- dency of this policy must be to increase and exalt the dignity of the character of citizen of the United States, —if such a result be practicable or wise, — at the expense of the rights and privileges of the citizen of the state. In a word, if the system which has prevailed for some time continues, the rule of the central, federal, or metropolitan government over the people in all the higher and privileged relations of citizenship will be substituted throughout the length and breadth of the land for local self-government. Two principal results — the inconveniences of which are beginning to be felt already — have come from the adoption of a policy which sanctions a latitudinarian enactment and application of federal statutes for the removal of causes from state courts ; first, the practi- cal abrogation of the common-law doctrine and practice which 196 A TREATISE ON CITIZENSHIP. committed the personal freedom and the prerogative rights of the citizen to the protection of the local bailiwick, hun- dred, or county ; secondly, a practical denial of justice to hun- dreds of suitors who are appropriately before the federal courts, in consequence of delay and embarrassment incident to the prosecution of state causes in federal courts of last re- sort, which has naturally resulted in over-crowded dockets before over-taxed judges. Attention is elsewhere called to the actual condition of the docket of the Supreme Court of the United States! The writer does not lose sight of the vigorous and repeated disclaimers to be found in recent de- cisions of the Supreme Court already quoted ; but he is here referring to a political system which has numerous and able advocates in the country, and to the existence and influence of a sentiment which, consciously or unconsciously, has af- fected and continues to affect judicial decisions as well as legislative action in respect to political questions. ‘“« The question respecting the extent of the powers actually granted [to the federal government] ” said Chief Justice Marshall in 1819, “is perpetually arising, and will probably continue to arise as long as our system shall exist.” 2 § 158. The Thirteenth Amendment “ trenches directly upon the power of the states and of the people of the states. It is the first and only instance of a change of this character in the organic law.” 3 This expression of judicial opinion was announced anterior to the passage of the Fourteenth and Fifteenth Amendments.! A writer in a recent number of an American law review 5 has discussed very fully and ably some questions in this rela- 1 The Needs of the Supreme Court, North American Review, May, 1881. 2 McCullough v. State of Maryland, 4 Wheat. U. 8. Rep. 405. 5 United States v. Rhodes (by Justice Swayne), Kentucky, October Term 1867. , ‘ See Paschal, Annotated Constitution, p. 273. 5 Southern Law Review, October, 1878, p. 558. A TREATISE ON CITIZENSHIP. 197 tion, in a paper entitled, ‘‘ The Fourteenth Amendment: The Slaughter House Cases.” In this article, appropriate sections of the Fourteenth and Thirteenth Amendments are set forth. The history of the bill and amendments, anda sketch of the debate in Congress, which preceded the enactment of the Civil Rights Bill, as well as the text of the Act of the Legis- lature of Louisiana, the constitutionality of which was in question in the principal case, are presented in detail. The writer doubts the wisdom or correctness, from a judicial standpoint, of the opinion of the majority, and commends the expression of the minority of the court, as more sound and defensible. He says: “The truth is, when this amendment first came before the Supreme Court for construction, the minds of patriotic men were filled with alarm at the central- izing tendency of the government. The President of the United States was holding a half a dozen states under the armed heel of military despotism; the Congress of the United States was indicating its disposition strongly and more strongly at each successive session, to encroach upon the reserved rights of the states; and those who wished well to their country looked with sorrowing eyes upon the prospect that the ancient landmarks of the states were to yield before the advancing strides of an imperial despotism. No one can deny that the disposition of the majority of the court to put some construction upon this amendment which would curb the progress of federal power was a most patriotic one. But was it wise?” ! The same writer calls attention to a feature of the leading case, which is often lost sight of or misunderstood. His lan- guage as to this is: “There could have been no criticism upon the action of the Louisiana legislature in the Slaughter House Cases if the charter given the slaughter house com- 1 Southern Law Review, October, 1878, p.576. Compare with decision in Slaughter House Cases, Munn v. Illinois, 94 U. 8.; and Davidson ». New Orleans, 96 U. S. p. 97. 198 A TREATISE ON CITIZENSHIP. pany had been really a police regulation. But it was a col- orable exercise only of police power. It was giving a party of monopolists unwarrantable privileges, under the pretence of prescribing police regulations.” } The fifteenth article of amendments to the Constitution declares that “the right of citizens of the United States shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.” . Section 2004 of the Revised Statutes, which has immediate reference to the elective franchise, is in these words: “ All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any state, terri- tory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any consti- tution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary not- withstanding.” 2 The qualification italicized is an impor- tant one to remember. The fourteenth and fifteenth articles of amendments to the Constitution contain a section as follows: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” And it has been stated in argument, in a contested election- case before the forty-sixth Congress of the United States, second session,® that in Massachusetts, 144,509 persons are disfranchised, in contravention of the first section of the Four- 1 16. p. 584. See also argument of J. A. Campbell and J. Q. A. Fellows (of counsel) against the Monopoly, 16 Wall. (U.S.) Rep. p. 52 ef seg. 2 Revised Statutes of the United States, pp. 351-359; Fifteenth Article of Amendments to the Constitution ; Giauque, Election and Naturalization Laws of the United States; Parsons, Rights of a Citizen of the United States, pp. 190 et seq. 8 Benjamin F. Butler, ag., in Boynton v. Loring. A TREATISE ON CITIZENSHIP. 199 teenth Amendment to the Constitution of the United States; and it was insisted that, in accordance with the law of the United States as laid down in Sect. 2 of the same article, the representation of Massachusetts in the Congress of the United States should be cut down from eleven to eight rep- resentatives, and from thirteen electoral votes to ten. A committee of the United States Senate, forty-sixth Con- gress,! has submitted a report in which it is said that the number of persons deprived of the right of suffrage by the property qualifications imposed upon foreign-born citizens by the constitution and laws of Rhode Island is variously esti- mated at from 3,000 to 25,000. To correct these and similar violations of the law by these and other states, and to enforce provisions of the second section of the Fourteenth Amendment, a majority of the committee recommends the passage of an act to provide for such an enumeration of persons in the tenth census as will clearly designate the basis of representation required to be made under the Fourteenth Amendment, and they report the following bill for that purpose :— “ Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That in taking the enumeration of the inhabitants of the several states, as directed by the Constitution of the United States to be taken at the next and each subsequent enumeration thereof, it shall be the duty of the superintendent of the census to cause to be ascertained the number of citizens of the United States, in- habitants of any state, being males twenty-one years of age and upwards, whose right to vote at any election named in the Fourteenth Amendment to the Constitution of the United States has been denied or in any way abridged by the con- stitution or laws of any state, except as authorized by said Fourteenth Amendment.” 1 Wallace, chairman; see 23 Pick. (Mass.) R. 308. 200 A TREATISE ON CITIZENSHIP. § 159. What was deemed appropriate legislation, in this connection, may be gathered from the language of the act commonly referred to as the “Enforcement Act,” approved May 381, 1870, entitled “An Act to enforce the Rights of Citizens of the United States to vote,” and ‘ An Act to pro- tect all Citizens in their Civil and Legal Rights,” approved March 1,1 1875, and the subsequent decisions of the Supreme Court of the United States, declaring the aforesaid acts con- stitutional.? It would appear that the result of the adoption of the con- struction placed by the Supreme Court of the United States upon recent constitutional amendments will be to deprive the states of rights hitherto regarded as inalienable preroga- tives of state jurisdiction, and to transfer the same to federal jurisdiction and control. The later decisions would seem to be somewhat incon- sistent with the position taken by the same court in the “ Slaughter House Cases.” 8 § 160. The Fourteenth Amendment contains a section as under: — “Representatives shall be apportioned among the several. states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in Congress, the executive or judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in 118 Stat. Part III. 336, Revised Statutes, sect. 643. 2 Ex parte Siebold and others, 100 U. 8. Reps.; Tennessee v. Davis, 100 U.S. p. 257; Ee parte Virginia, 100 U. 8. p. 339. ® See discussion of the Fourteenth Amendment and the Slaughter House Case in Southern Law Journal, 1879. A TREATISE ON CITIZENSHIP. 201 rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” § 161. In some expressions of admiration passed upon the opinion of the United States Supreme Court in Marbury »v. Madison, which was delivered by Chief Justice Marshall, the accomplished president of the American Bar Association (Mr. Phelps of Vermont), in an address delivered at Sara- toga, in the summer of 1879, used this language : — “ As every lawyer and every intelligent layman knows, the point of most danger and difficulty in constitutional construc- tion, where the greatest risk of final shipwreck is incurred, is in the attempt to adjust those conflicting — sometimes doubt- ful, always very delicate —relative rights of the states and the federal government. That point, of all others, was treated by the court with the largest sagacity and the great- est wisdom. Critical as were many of the emergencies which arose in those days out of that subject, they were not only satisfactorily met, but buried and forgotten forever, under the wise and salutary administration of the law which they encountered.” § 162. In discussions on the subject, out of as well as in courts of the United States, citizenship and suffrage are often confounded ; but they are entirely distinct things, although similar in some respects, and frequently united.t. We have seen that it was different at Athens and under the Roman republic. In this respect, it must be admitted that as yet the standard of American citizenship falls below the dignity of citizenship as familiar to and defined by Aristotle. While it may not 1 Parsons, Rights of a Citizen of the United States, p. 189; Bates on Citizenship ; Carroll ». Carroll, 16 How. (U. 8.) R. 287; Pascal, Annotated Constitution of the United States, p. 275. 202 A TREATISE ON CITIZENSHIP. be on a level with the citizenship of Rome under the repub- lic, or of freer classic Athens, it has a dignity and a value of its own, well worthy of appreciation and careful guarding. “It must be remembered,” says Parsons, “ that citizenship Gn the United States) is not suffrage ; and that naturaliza- tion, of itself, confers no right of suffrage. The result of naturalization is to make the individual a citizen of the United States ; whereas the right of suffrage has heretofore and uni- formly been conferred by the states in their capacity as states. It was considered that self-interest would, without other motive, induce them to be liberal in this respect. This has not, however, always proved to be the case.? § 163. A present interest attaches to the discussion of the effect of recent amendments to the Constitution on petitions for certiorari and in the several habeas corpus cases from Virginia, West Virginia, Maryland, and Ohio, recently decided? by the Supreme Court of the United States. It is necessary to bear in mind, on the threshold of any discussion of these amendments, what has been already pointed out, namely, that the Supreme Court has heretofore declared that there is a citizenship of the United States and a citizenship of the respective states;* and it is argued that the guarantee 1 Parsons, Rights of a Citizen of the United States, p. 190. ? As to what constitutes citizenship for the purposes of sustaining the juris- diction of federal courts of the Union, in suits between citizens of different states, see Curtis’s Commentaries on the Constitution, sect. 77 e¢ seq., and cases cited; Meyer, Index U. 8. Supreme Ct. Rep., word “citizen”; Desty, Federal Constitution, word “citizen.” For meaning of “citizen” in the Judiciary Act, see Curtis, Jurisdiction of the U. 8. Courts, p. 118. For a discussion sustaining the liability of the United States to protect the persons of British subjects, even as against Great Britain, see British and Foreign State Papers, 1844-1845, p. 141. See passim, opinion of Rayner, J. (Court of Commissioners of Alabama Claims) ¢z re Benjamin West v. United States, State Department, Washington; also Brief of Bliss in Gordon v. United States, Court of Commissioners Alabama Claims, Jd. 3 100 U. 8. Sup. Ct. Rep. pp. 257-422. 4 Slaughter House Cases, 16 Wall. 36; Cruikshank’s Case, 92 U. 8. 549. A TREATISE ON CITIZENSHIP. 203 secured by the Fourteenth Amendment, forbidding any abridgment of the privilege and immunities of citizens of the United States, has reference to “citizens of the United States ” as distinct from citizens of the states. The Fifteenth Amendment prohibits distinctions on ac- count of ‘race, color, or previous condition of servitude,” but it leaves the states free to make distinctions on account of nativity, sex, age, religion, education, or property. The original draft of this amendment, as reported by Boutwell of Massachusetts to the Reconstruction Committee of the Forti- eth Congress, contained the words “nativity and religious belief.” Upon representation being made that with the words ‘nativity’ and “religious belief” in this amendment, it would be impossible for the state to deny suffrage to the Chinese, these words were stricken out. The guarantee of the specific right to vote is assured to “all citizens of the United States who are otherwise qualified by law to vote,” ete. The Supreme Court of the United States had heretofore declared that citizenship has no necessary connection with the franchise of voting, eligibility to office, or, indeed, with any other rights, civil or political! Women, minors, and per- sons non compos are citizens, and not less so on account of their disability ; but they cannot vote.” 1 Carroll v. Carroll, 16 How. 287. 2 Since the above was written the Supreme Court of the United States in one of the cases referred to (Taylor Strauder v. West Virginia, 100 U.S. Sup. Ct. Rep. p. 303) has decided that the Fourteenth Amendment of the federal Consti- tution is one of a series of constitutional provisions having a common purpose, namely, to secure to a race recently emancipated, and held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to them the protection of the general government, in the enjoyment of such rights, whenever they should be denied by the states; whether it had other, and if so, what purposes, was not decided. It was also held in this case that the amendment not only gave citizenship to persons of color, but it denied to any state the power to deny them the equal protection of the laws, and in- vested Congress with power, by appropriate legislation, to enforce its provi- 204 A TREATISE ON CITIZENSHIP. § 164. Whether well founded or not, the impression exists in the minds of many thoughtful men throughout the United States, who do not hesitate to express opinions on the rostrum or through the press, that events of present occurrence indicate that the two, extremes between which the political pendulum now vibrates may be described as, on one side, the perpetuity of the states as independent political autonomies, and on the other side, the creation of a homogeneous and stable metro- politan government at the federal capital. The attraction has been, however, from obvious causes and for a long time, in the latter direction. The tendency of this latter force, it is habitually said, is in the direction of a centralization of all political power at the seat of the metropolitan govern- ment. There are not wanting indications, however, that tend to encourage the belief that a popular reaction in favor of a less eccentric movement, and in the direction of a practical res- toration of the natural and constitutional relations between the state and federal governments, will before long make its influence felt. § 165. A cautious but critical observer, who has availed of singular opportunities to study the structural relations of the government of the United States, and who possesses, in a rare degree, the power of generalization which characterizes some of his countrymen, writing in 1870, said, when discussing the relations of the president to the states : — “ Thus, if we do not include the exceptional cases’ just mentioned, the Union and the states act, if we may say so, in distinct and independent spheres. The president and Con- gress should abstain from asserting the powers delegated by sions. The court then proceeded to pass upon the privilege extended to colored citizens (meaning negroes resident in a particular state) to serve on juries, and the right or privilege of having the opportunity of being tried, whenever arraigned, by persons of their own color. A TREATISE ON CITIZENSHIP. 205 the people to the local governments. The latter cannot rightfully suspend the national authority or interfere with its exercise. If, then, the government of the United States is not a league or confederacy of states, as separate and sov- ereign communities united by a compact, neither is it a consolidated government, without limitation of powers, rep- resenting the entire sovereignty. It was designed to main- tain not only the supremacy of the national authority, but also the reserved rights of the states. Federal encroachments on those rights would be fatal to republican institutions on | this continent. : “ We may readily see that, should the autonomy of the states disappear, the executive power would at once essen- tially change and assume inordinate proportions. It is toa great extent confined by the state governments to that sphere of action prescribed for it by the Constitution. In fact, in- cessant conflicts would take place between the executive, which is independent within the scope of its constitutional authority, and the legislature, with the increased powers that would almost necessarily attach to it on the destruction of the governments of the separate states. From that time one might foresee that the president, although a person of limited ability, would succeed in gaining the sympathy and influence of a majority of the people. Doubtless the latter might at times declare in favor of a deliberative assembly, but it would not be safe to depend on their permanent support. Called upon to choose between an abstract sovereignty and the con- crete idea of power centred in one man, they would in the end almost always prefer the living personality, and recognize him as the elect of the nation, without scarcely remembering that they had also chosen their representatives. “The government of the United States is as vigorous as circumstances may require. The executive authority is so constituted that it may act with perfect liberty within its au- thorized limits, and these are hedged in by barriers which 206 A TREATISE ON CITIZENSHIP. cannot be readily surmounted. On one side it is confronted by the legislature and by a firmly-established judicial power, which is almost always able to expound and enforce the rights of citizens, and on the other are these thirty-seven indepen- dent bodies, which are scarcely amenable to its action. Thanks to this combination, the presidential power is exerted with vigor, and it proves.equal to all the requirements of the most varied situations; and nevertheless he to whom it is confided may be, from time to time, changed, because no man is an indispensable necessity. But let the organization of the states disappear, and the condition of things will at once become modified. This was clearly seen in the interval be- tween the overthrow of the confederate government and the present moment. As is known, Congress decided that the inhabitants of the insurrectionary states had renounced their privileges and power in the Union. (Report of the Com- mittee on Reconstruction, pp. 11 et seq.) “ This is not the place to examine the bearing or the charac- ter of the measures then adopted, but it is impossible to deny that, by reason of the destruction of these ten states, the fed- eral authority was largely extended beyond its constitutional limits. In fact, an immense power was assumed and exer- cised. If this anomalous state of things had been greatly prolonged, and the dominant party had not labored to efface even the last traces of it, we may be allowed to express the opinion that there might have resulted a centralized republic, which would with great difficulty have been maintained. “‘ These eventful times also brought about a conflict between the president and Congress. Was the power to reconstruct the Union vested in him or in them? Their respective par- tisans discussed this preliminary inquiry with equal violence, and the struggle was renewed when the question arose as to what plan of reconstruction should be adopted. At last matters reached a most critical point. The president was impeached, and narrowly escaped conviction. The momen- A TREATISE ON CITIZENSHIP. 207 tary disorganization of ten states was enough to endanger the life of the federal government. The equipoise and di- vision of powers so carefully adjusted by the Constitution were deranged, and it seemed that they would be entirely broken up. If the friends of freedom in America did not despair of the republic, it was because of their trust and belief that the conflict would be short, and that the normal and benignant sway of their institutions would be gradually re- stored. Let us then hope that the regular action of life will by degrees be resumed and felt in each of the Southern States. The natural order of things will then be re-estab- lished throughout the Union; but until this propitious event occurs, there will be eccentric movements in the working of the federal government, and from time to time threatening attempts at centralization.” } § 166. Another author sees danger to the republic from the development and tendency of what may be termed “ execu- tivism,” rather than from “centralization.”? And it may not be denied that all progress in the direction of centraliza- tion will make easier and more practicable the success of executivism, as is fully and well pointed out by an author already quoted. § 167. An English traveller of pronounced views and strong convictions in regard to American as well as English politics, who made a brief sojourn in the United States in 1868, ex- pressed himself very freely as to the political principles and sentiments of the two great party organizations in the coun- try at that date. In a forecast of the political future of the United States, this observer said : — 1 The Executive Power in the United States, M. Adolphe de Chambrun, pp. 233-236. 2 The North American Review, November, 1880,— ‘The Monarchical Principle in Our Constitution.” Upshur, “The Nature and Character of Our Federal Government.” 3 De Chambrun, 208 A TREATISE ON CITIZENSHIP. “The system of presidential election and the constitution of the senate are matters to which the Republicans will turn their attention as soon as the country is rested from the war. It is not impossible that a lifetime may see the abolition of the presidency proposed,! and carried by the vote of the whole nation. If this be not done, the election will come to be made directly by the people, without the intervention of the electoral college. The senate, as now constituted, rests upon the states; and that state rights are doomed, no one can doubt who remembers that of the population of New York State, less than half are native-born New Yorkers. What _ concern can the cosmopolitan moiety of her people have with the state rights of New York? When a system becomes purely artificial, it is on the road to death; when state rights represented the various sovereign powers which the old states allowed to sleep while they entered a federal union, state rights were historical; but now that Congress, by a sin- gle vote, cuts and carves territories as large as all the old states put together, and founds new commonwealths in the wilderness, the doctrine is worn out.” 2 § 168. In 1880 a metropolitan journal? used this language: “ The vastness of the revenue, the multitude of conflicting in- terests, the complexity of the laws, the heterogeneous character of the population, and the recent enlargement of the sphere of the federal government have combined to make the presi- dency an office which ought either to be filled by a trained and experienced civilian or abolished as a public danger and nuisance.” One year later the same journal published a communica- tion in which the following occurs: “ Each presidential 1 See passim “The Monarchical Principle in Our Constitution,” North American Review, November, 1880. 2 Greater Britain, p. 208, Charles Wentworth Dilke. Harper Bros., 1869, New York. 8 The Nation, New York, No. 799. A TREATISE ON CITIZENSHIP. 209 election is, so far as the chief actors are concerned, a mere sordid strife between the office-holders and the office- seekers.” } § 169. The writer of the article on “ The Monarchical Prin- ciple in Our Constitution ” ? says: — “ There are objections to an executive consisting of a single person in confederate or composite states, that do not apply to an homogeneous country. *“ Take, for example, the United States, whose interests, north and south, were avowedly, during the whole period of slavery, antagonistical. It cannot be doubted that a single executive possessing the immense prerogative enjoyed by the president of the United States might influence legislation, as well as the administration of the government, in favor of his section to the prejudice of the others. Some attempts were made, during the disputes with regard to the tariff and slavery, as to a plan by which the rights of each section might be protected. Mr. Calhoun proposed a dual execu- tive, having a legislative and executive action, as one of the means of preserving the balance of power between the two sections. “The discordant interests of Austria and Hungary induced the establishment of two general governments in the Austro- Hungarian monarchy. It ordinarily happens that when, in a confederacy, there is one head, the office is attached not to the individual but to the prominent state. For instance, in the present empire of Germany, it is the King of Prussia, not as an individual, but King of Prussia, who is Emperor of Germany. And the subordination of the other states of Germany to Prussia is always recognized. “But I know of nothing more suitable to our condition than the present constitution of .Switzerland. The Swiss constitution provides for the exercise of the supreme execu- 1 The Nation, No. 800. 2 North American Review, November, 1880. 14 210 A TREATISE ON CITIZENSHIP. tive authority by a federal council, composed of seven mem- bers, only one of whom can be chosen from the same canton. They are named for three years by the two houses of the legislature (federal assembly), denominated the National Council and Council of States, the former corresponding to the House of Representatives, the latter to the Senate, of the United States. From this federal council the president and ‘vice-president of the confederation are annually appointed by a vote, also of the two houses; but their functions are not materially different from those of the other members, and four members are required to sanction every deliberation. The duties of the federal council consist especially in super- intending the national relations of the confederation. “In conclusion, I would remark that the views here stated, however illustrated by recent events, have exclusively in view matters of permanent interest. So far, indeed, as regards the contest now pending, the verdict of the people will be ren- dered before this article comes regularly into the hands of the subscribers.” § 170. Another observer of the tendencies in American poli- tics apprehends danger to the perpetuity of the republic from the aggrandizement and rule of the money oligarchy.1 It has been said, “* When the passion of avarice grows general in a country, the temples of Honor are soon pulled down, and all men’s sacrifices are made to Fortune.” 2 § 171. Some observers claim to discern “ in well-defined and not remote succession the gradual consolidation of power in the hands of the few, the merging of centralization in monarchy, — monarchy loosened from all constitutional moorings, drifting ? North American Review, November, 1880, “The Republican Party as it Was, and as it Is.” 2“ An, hee animos erugo et cura peculi Quum semel imbuerit, speramus carmina fingi Posse linenda cedro, et levi servanda cupresso ?” A TREATISE ON CITIZENSHIP. 211 into imperialism, and imperialism swallowed up at last in anarchy. Others solemnly assure us that the only danger to the republic lurks in the railway monopolies, that our civil institutions are to be finally buried under a despotism of transportation pools and trunk lines.! “Others insist that the government as established by the fathers is to be rolled out of shape and into the dust under the Juggernaut of the National Banks; others again, that the concentration of wealth in the hands of Vanderbilts, Goulds, and the bonanza kings will result in their capturing both Houses of Congress, as they are already in a fair way to cap- ture the Senate, and the rest of the people be left to die of slow starvation. And so on with various other vaticinations. “There is a greater danger than all these. “It is a danger that has done more to make beggars and sycophants than almost anything else, a danger that stunts the growth of young men, demoralizes honest industry, emas- culates a manly ambition. “Tt is a danger that is actual and imminent, that infatu- ates and captivates the strong as well as the weak, — a dan- ger that turns even the wise head, while it enfeebles the less wise. ‘Tt is a danger that has an infinitude of ramifications, like the veins and arteries, —a danger that haunts the corridors of the capitol, that has found its way even to the Chamber of . the Senate, and stolen away the dignity, if not the brains and morals, of the most august legislative assembly on the face of the earth. Of this danger the floors of that assembly for the past three weeks have furnished a striking and significant —it should be a painful and startling — illustration. “Tt is the danger that waits upon an insatiate, incurable, 1 See daily journals. Also, “The Regulation of Railroads,’ The Prince- ton Review, May, 1881; “The Right to Regulate Railway Charges,” The North American Review, June, 1881. 212 A TREATISE ON CITIZENSHIP. and conscienceless mania for the spoils of public office and the drippings of Federal pap, at the cheapening of honor, the betrayal of duty, and the derogation of true statesmanship.” * § 172. An English journal said some time ago that the’ United States was an American heptarchy, being ruled by seven railroad kings, each district having a separate monarch. And an American journal of recent date adds : ‘‘ The compari- son is too true; but if this represented the full extent of the evil we should not have so much of which to complain. It is worse, very much worse. The majority of senators who have recently been elected, although nominally entering the Senate on behalf of the people, will, in reality, be diametri- cally opposed to their interests.” Tn the presence of the above and similar vaticinations as to the political future of the country, it will be comforting to consider the following expression of opinion from the Satur- day Review: “It is the peculiar felicity of the United States that American citizens can afford to occupy themselves with controversies which may be decided either way without serious political disadvantage. The country enjoys unbounded and growing prosperity, and one Secretary of the Treasury after another is enabled to announce large and rapid reductions of the national debt. Almost exempt from domestic anxieties, the United States are also happy in the non-existence or trivial importance of foreign relations. There is, indeed, always a diplomatic squabble with England or with Canada, and the Secretary of State has the opportunity of indulging in patri- otic protests and threats, but it is highly improbable that for an indefinite time America should be engaged in any serious quarrel. The republic is perhaps already the strongest of political communities, and its population and resources are constantly increasing. The government of the country is perhaps not theoretically perfect, but the results are, on the * The Post, Washington, D. C., 1881. A TREATISE ON CITIZENSHIP. 213 whole, satisfactory. It is a proof of the excellence of a ma- chine that it can be regulated and superintended without the exercise of extraordinary skill.” Tn addressing the graduates of a Law School in a western state recently, the orator of the occasion said: “ We are attempting to govern 40,000,000 of people — within your life- time it may be nearly 100,000,000 of people — upon a conti- nent reaching from ocean to ocean, and stretching from the frigid to the torrid zone, with interests more various and more diverse than ever before tested the political wisdom of the statesman ; a nation which for a century has been the asylum of the oppressed, and of the felons of the whole world ; a nation of born egotists, where every man has just enough education to have an opinion of his own upon every conceivable subject, especially upon the structure of society and the best theory of government, — the very things he knows least about; a nation that started out with an illogi- cal and dangerous political sophism as to the natural — that is, the uneducated — capacity of man for self-govern- ment; a nation whose great cities and centres of influ- ence, whence our political literature emanates, are already controlled by the moral and political ignorance of Great Britain and Europe. I say we are trying the experiment of maintaining such a government, with such material and such interests. Some people are sanguine enough to conclude that because we have succeeded thus far our future success is assured and not difficult. . . . Gentlemen, you come upon the stage of action at a period in social experiment and polit- ical history requiring broader learning and greater wisdom than even the founders of the republic possessed. They founded a republic in a Garden of Eden upon a virgin conti- nent, where labor of all kinds was in demand and remunera- tive; where, though the conditions of life were rigorous, they were equable, where both wealth and destitution were almost unknown; where the dullest intellect could perceive, and the 214 A TREATISE ON CITIZENSHIP. most abandoned character appreciate, that it was easier to earn a living within the law than without it; where the power of capital was yet unknown to labor, where the des- potism of capital was yet unfelt by labor.” The author of this treatise does not sympathize with the opinions of the optimist or the pessimist in regard to the future of America. He believes that a truthful representation of the actual condition may be found in a middle statement ; and while he agrees with the English journal just quoted as to the excellence of the organic constitution of the American Republic, he is not, on the other hand, blind to the dangers incident to ignorance or corruption on the part of the admin- istrators of the American government, or of their constituents. It is, unfortunately, too true that there is a large class of politicians in the United States who do not see —or affect not to see — danger to the republic as a result of the indiscrim- inate extension of the franchise to ignorant and unqualified masses, whether white or black, native or foreign; and this reflection opens a wide and profitable field for the attention of the American political reformer. § 178. Inthe single particular of representation in the senate of the United States (unless the independent control of the return of the electoral vote by the states may be considered an exception) is the equality, not to mention the rights of the several states, as autonomous organizations, practically exist- ent to-day as it was on adoption of the original federal con- stitution. And this equality of the states on the floor of the senate, and in the matter of representation and action in the electoral college, is doomed to disappear, if propositions recently advanced and seriously recommended are adopted. 1 Debates in Congress, Congressional Record, 1876, 1880. See passim, “The Future of the Republican Party,” North American Review, December, 1880; “Controlling Forces in American Politics,” Zé. January, 1881; “The Mission of the Democratic Party,” Jd. ; “General Grant and a Third Term,” Zé. April, 1880; “ General Grant and Strong Government,” Jd. May, 1880. A TREATISE ON CITIZENSHIP. 215 § 174. ‘ There has been, for twenty years, a steady and per- sistent effort to concentrate in the executive branch the powers and duties of the House. By the executive branch we mean the president, and the senate in its executive capacity. This aggression must be successfully resisted, or the entire charac- ter of our government will be radically changed. If the process of absorption is to go on, year after year, slowly, and almost imperceptibly, but not the less surely, transferring the rights of the people to the guardianship of the executive ma- chinery, we shall drift into danger from which there will be no peaceful exit.’ } § 175. A married woman may be naturalized,? and that without the concurrence of her husband;? but the statutes of naturalization do not apply to Indians.* Congress, having prescribed a uniform rule of naturaliza- tion, may give to the state courts jurisdiction under it,® and to the territorial courts.® The proceedings in reference to naturalization of aliens are liberally construed, and every intendment is in their favor.’ It is not necessary that the record of naturalization should show that all the legal prerequisites were complied with, the judgment being conclusive of such compliance.® The powers conferred upon the courts to naturalize aliens are judicial and not ministerial, and require an examination into each case, sufficient to satisfy the court. Previous residence may have been not uninterrupted. 1 The Post, Washington, D.C. 2 Re parte Marianne Pic, 1 Cr. C. C. 372. ® Priest v. Cummings, 16 Wend. 617. 4 7 Opinion Attorneys General, 746. 5 State v. Penney, 5 Eng. 621. 6 Biddle v. Richard, Cl. & Hall, 407. But see Ze parte Knowles, 4 Am. L. R. 598; 8. C. 5 Cal. 800; Hagan v. Dudley, 10 Law Rep. 371. 716 Wend. 617. 8 Stark v. Chesapeake Ins. Co., 7 Cr. 420; Spratt v. Spratt, 4 Pet. 406 ; Ritchie ». Putnam, 13 Wend. 524; McCarthy v. Marsh, 1 Seld. 263, 278. And see Campbell v. Gordon, 6 Cr. 176. ® In the matter of Clark, 18 Barb. 444. 216 A TREATISE ON CITIZENSHIP. § 176 In several cases which came before the Mixed Com- mission on British and American Claims, Treaty of Washing- ton, May 8, 1871,! women born within the United States, and always domiciled there, were allowed standing before said Commission as British subjects as a result of their marriage to British subjects, though their husbands had died before the filing of their memorials.” The same Commission dismissed a claim filed as the claim of a British subject, “ without prejudice to the prosecution of the claim elsewhere,”’ in a case submitted by the widow of an American citizen, under this state of facts. The woman was born in Ireland in 1814, and in 1817 came to the United States, where she remained three years; she then returned with her family to Ireland, and resided there till 1837, when she returned to the United States, and in 1839 married a citi- zen of the United States. The husband died in 1849. It appeared in evidence that the widow continued to reside in the United States, and was residing in the United States when she presented her claim as a British subject to the Commission; but that in 1862 she registered herself at the British consulate in New Orleans as a subject of Her Majesty? In another case the commissioners rendered the following decision : — “The first thing to be decided in this case is whether the commissioners have jurisdiction, which depends upon whether the claimant is, within the meaning of the treaty, a British subject. “That he is, in fact, a British subject, there is no doubt ; but it is contended that, being domiciled in the United States, 1 Calderwood’s, Molyneux’s, O’Bryan’s, and Barton’s Cases. 2 Report by Her Majesty’s Agent on the Mixed Commission on British and American Claims, Library of Congress, and Library of State Department, Washington, D. C. 3 Mrs. Brand’s Case, id. pp. 20, 21, 22. A TREATISE ON CITIZENSHIP. 217 he is not one of those intended by the framers of this treaty to be included in that term. It is undoubtedly true, as ap- pears from various cases cited in the arguments, that the sub- ject or citizen of one state, domiciled in another, acquires in some respects privileges, and incurs liabilities, distinct from those possessed in right of his original birth or citizenship. But he still remains the subject or citizen of the state to which he originally belonged, and we see no reason to sup- pose that it was the intention of either government to put the limited meaning on the words ‘ British subject’ contended for in the arguments in support of the demurrer, so as to ex- clude from our jurisdiction a British subject who has never renounced his original allegiance, or become naturalized in any other country.” } § 177. It was held by the Mixed Commission on Mexican and American Claims? that a married woman, by the mere fact of marriage, invests herself with the nationality of her husband, without the necessity of any more manifest expression of her wish. The American commissioner (M. Wadsworth), however, sustained the contrary principle in delivering his opinion in another case.’ The question how far, and when, a change of nationality may be operative as a result pf marriage, was discussed before the Mixed Commission on British and American Claims; * and it was held that by marriage alone a woman born in the United States, and there married to a British subject, always domiciled in the United States, became a British subject, and on the death of her husband still retained such national a character.® 1 Barclay’s Case, Report of Her Majesty’s Agent, p. 9. 2 Martin’s Case, reference supra, p. 128. 8 Mary Biencourt’s Case, reference supra, p. 139. 4 Calderwood’s, Molyneux’s, O’Bryan’s, and Barton’s Cases, Report of Her Majesty’s Agent, pp. 337-841. 5 See Countess of Conway’s Case, 2 Knapp, P. C. Rep. contra, 218 A TREATISE ON CITIZENSHIP. “The grounds on which this decision was made by the Commission were not formally stated, but were understood to be that by international law the national character of the wife was to be considered that of her husband, and that on his death she still retained the national character acquired by her marriage. «Of the first branch of this proposition there would seem to be no question, except so far as raised in the British tribu- nal referred to, where the domicile of the wife had never fol- lowed the national character of the husband. Governor Lawrence, in his tract on the ‘ Disabilities of American Wo- men married abroad,’ plainly recognizes the principle as settled by the international law. (pp.10, 22.) Mr. Attorney- General Stanbery expressly accepted it as the rulet And Lord Chief Justice Cockburn states? that this is the law of all countries ‘except where the English law prevails.’ The decisions of the British Privy Council, passing upon the question purely as one of international law, in the construc- tion of the conventions with France, where the language used was identical with that used in the Treaty under which this Commission sits, recognize, as we have seen, the same rule, with the single qualification above noted in respect to domicile.” 3 § 178. The Court of Commissioners of Alabama Claims, in their interpretation of the organic act creating the court, and providing for the distribution of the money paid to the United States by Great Britain, in conformity with the award at Geneva, decided two points of interest in this relation, in the case of Schreiber and Meyer v. The United States. The act of Congress of 23 June, 1874, provided that no claim should be. 1 Attorney-General’s Opinions, Vol. I. p. 7. 2 Nationality, p. 24. 8 Her Majesty’s Counsel, J. Mandeville Carlisle, arg. See Report of Agent, pp. 339, 340. A TREATISE ON CITIZENSHIP. 219 allowed by the court “ arising in favor of any person not en- titled at the time of his loss to the protection of the United States in the premises.” The court had previously deter- mined that British subjects were not entitled to share in the distribution under the act. Schreiber was a native of Prussia, and Meyer of Hamburg. They were partners in business at Singapore, and had ac- cepted drafts drawn upon a cargo of rice on board the Mar- taban, destroyed by the Alabama 24 December, 1863. At that date Meyer had acquired a commercial domicile at Sin- gapore, having taken out a certificate of naturalization as a British subject, in accordance with the Act No. XXX. of 1852, passed by the government of the East India Company. This certificate entitled him, within the territories under the government of the East India Company, to be deemed a natu- ral-born subject of Her Majesty, as if he had been born within the said territories, and gave him, within the said territories, all the rights, privileges, and capacities of a subject of Her Majesty born within the said territory.” In 1864 Meyer re- turned permanently to Hamburg. The court, Jewell, J., held, first, that foreigners who never had resided in the United States, yet who had laden their property on board of American vessels, were entitled, as to such property, to protection in the premises, and might re- cover for its value if destroyed ; second, that Meyer’s rights as a British subject were limited to the territories of the East India Company, and not being a British native-born subject, the circumstance that he held such qualified naturalization rights did not prevent his recovery in this suit.’ Rayner, J., dissenting. 1 Report from the Secretary of State with Accompanying Papers relating to the Court of Commissioners of Alabama Claims, p. 105. Washington, 1877. See also page 17 of same volume for case of Rodocanochi, Sons & Co. ». United States, where one of the firm had been naturalized in Great Britain, the domicile of the firm being in Italy. 220 A TREATISE ON CITIZENSHIP. § 179. Since the passage of the act of July 27, 1868, the United States, as heretofore indicated, have entered into treaty .. stipulations with nearly all the nations of Europe, by which the contracting powers mutually concede to subjects and citi- zens the right of expatriation, on conditions and under qualifi- cation. And if there shall arise conflict between the above act of Congress and any treaty in this matter, it would seem that the treaty must be held to be of higher dignity and para- mount; for the treaty is a contract between nation and nation in derogation of international law, and any case aris- ing under treaty or convention would be subject to con- struction of public law, as varied or modified by treaty stipulations. In the matter of residence, as a preliminary qualification for naturalization, many nations have recently entered into treaty stipulations, by the terms of which the contracting powers have agreed to make an uninterrupted residence of five years in the adopted country a necessary qualification for admission to citizenship... These treaties contain a provision providing for the punishment, in case of return to the native country, of a naturalized citizen or subject for offences com- mitted against the country of adoption before emigration ; and a provision for renunciation of citizenship by naturaliza- tion, on the return of the individual to the country of birth, and a residence of two years. Under these treaties the con- sideration what shall constitute “ uninterrupted residence” within the meaning of the clause remains; and questions of 1 Austria and the United States, Sept. 20,1870; Grand Duchy of Baden and the United States, July 19, 1868 ; Bavaria and the United States, May 26, 1868 ; Belgium and the United States, Nov. 16, 1868; Grand Duchy of Hesse and the United States, Aug. 1, 1868; Mexico and the United States, July 10, 1868; North German Union and the United States, Feb. 22, 1868; Sweden and Norway and the United States, May 26, 1869; Wiirtemberg and the United States, July 27, 1868; Denmark and the United States, July 20, 1872; Ecuador and the United States, June 28, 1872. See Treaties and Conventions between the United States and other Powers since July 4,1776. Washington, Government Printing Office, 1871. A TREATISE ON CITIZENSHIP. 221 difficulty and embarrassment will doubtless continue to arise on the construction of this clause. And, as between the con- tracting parties to a treaty containing a stipulation in these or similar terms, the objection is that, on this point of resi- dence, it may be open to the nation whose convenience in the particular case it suits to deny the conclusiveness, as evidence of nationality, of a letter or certificate of naturaliza- tion. We have already seen that in practice the nations generally, in the absence of treaties, concede this character to a letter or certificate of naturalization regularly issued under municipal law. § 180. By the terms of the treaty of naturalization be- tween the United States of America and Great Britain, May 13, 1870, provision is made for the naturalization in either country of the subjects er citizens of the other, as well as for the renunciation of such acquired citizenship in such manner as shall be agreed upon by the governments of the respective countries. And the act neretofore referred to ! contains pro- visions from which it appears that Parliament has acted upon and adopted the substantial recommendations contained in the report of Her Majesty’s commissioners. The first conclu- sion at which these commissioners arrived was: ‘“‘ That under a sound system of international law such a thing as a double nationality should not be suffered to exist.” 2 § 181. It is the merit of the modern process of naturali- zation of aliens now under discussion, that the letter or certi- ficate of naturalization constitutes such authentic proof of the nature and character of this intention as may not be ques- tioned or denied. And generally acts of naturalization, by which is meant the admission to citizenship of aliens, are 1 33 Vict. c. 14. 2 Nationality, London, 1869, p. 214; Field’s Iuternational Code, second edition, pp. 129, 130. 222, A TREATISE ON CITIZENSHIP. made matter of public record in the country of adoption. But as the country of origin is not regarded in this matter, unless by concession made under treaty, no provision is made for advising or acquainting the country of origin of the trans- fer of allegiance of her subject or citizen. From this omis- sion, complications and embarrassments in the relations between nations have not infrequently arisen ; the recur- rence of which might be, to a great extent at least, guarded against, if an official list of naturalized citizens were fur- nished to the country of origin. As a method of acquiring citizenship, naturalization — imperfect and subject to some abuse as it still may be in cer- tain quarters and countries — has the peculiar merit that it is made matter of public record, at least in the country of adop- tion. The learned chief justice, heretofore quoted, suggests that if nationality should become, as if ought, matter of inter- national concern, it would be highly expedient that an ar- rangement should be made for communicating the names of _persons naturalized, or electing between two nationalities, to the agents of the states concerned, to be by them transmitted to their governments, so that no dispute as to the fact could afterwards arise. § 182. A year or more after the decisions of Umpire Bar- tholdi and Umpire Blanc before the United States and Spanish Commission, in the cases of Delgado, Dominguez, and Por- tuondo, heretofore cited,! a change in the personnel of the commission occurred, and Count Lewenhaupft? became umpire. Shortly after this change, the cases of Buzzi and San Pedro, claiming to be citizens of the United States by naturalization, came before the same commission. And upon disagreement on the part of the arbitrators on the part of 1 Supra, pp. 78, 79, 80, 81. * Envoy Extraordinary and Minister Plenipotentiary from Sweden to the United States. A TREATISE ON CITIZENSHIP. 223 the two governments, on the question of the citizenship of claimants, the question was referred to the newly accredited umpire (Lewenhaupft), who decided against the claimants in an opinion reversing the decisions of his predecessors, Bar- tholdi and Blanc. The language in which the opinion of Umpire Lewenhaupft is expressed makes it plain that the umpire has followed Calvo in a grave and inexcusable error heretofore exposed in this treatise and elsewhere.! The decision of Umpire Lewenhaupft, which is here ques- tioned, is in these words: “The umpire is of opinion that, according to international law, every country has a right to confer by general or special legislation the privilege of nation- ality upon a person born out of its territory, but in the absence of special consent or treaty such naturalization has, within the limits of the country of origin, no other effect than the govern- ment of said country chooses voluntarily to concede.” —(Buzzi’s Case.) ‘In the absence of consent or treaty, naturalization abroad has, within the limits of the country of origin, no other effect than the government of said country chooses voluntarily to concede.’ —(San Pedro’s Case.) The propositions are altogether untenable under modern international law, and are contrary to all precedent in mod- ern times. They are at variance with the settled practice and policy of the United States; and the Secretary of State of the United States has instructed the advocate of the United States so to inform the commission and the umpire. § 183. Of the five years’ uninterrupted residence clause in the treaty between the. United States and Prussia, on behalf of the North German Confederation, of the 22d of February, 1868, Lord Chief Justice Cockburn says: ‘ This treaty is ambiguous, and open to difficulty on two points. 1. It is left uncertain whether the five years’ residence re- quired by the first article is to run from the time of the natu- 1 Pages 64, 65. 2 Opinions of Attorneys General of the United States, Vol. XII. p. 20. 224 A TREATISE ON CITIZENSHIP. ralization, or whether prior residence will be available to satisfy the condition; 2. It is left in doubt whether, on natu- ralized subjects quitting the country of adoption sine animo revertendi, and returning to their native country, and thereby losing the citizenship of the former, the original nationality would revert.” } The treaty has been the subject of much criticism; and various bills are now pending before the Congress of the United States, having in view the modification or the abroga- tion of this treaty. A member of the United States House of Representatives,2, who was in Berlin in 1879, records this treaty as the crowning work of Mr. Bancroft’s diplomatic career, and says that it works satisfactorily. In commenting upon this treaty soon after its conclusion, it was said by another author:? “ This treaty gives a satis- factory solution to the question presented by Lincoln, in his message of the 8th of December, 1863. In this message attention was called to the fact that foreigners had frequently been naturalized in the United States for the purpose of escaping obedience to the laws of their native country, to which, as soon as naturalized, they would return, claiming for all time the protection of the government of the United States. To prevent this abuse he declared it was necessary to fix some period, on the expiration of which foreigners who had been naturalized in the United States, and had returned to their native country, may not claim the protection of the republic.” 2 Numerous cases which have recently occurred in Germany, and have been the subject of diplomatic intervention by the United States of North America on behalf of naturalized citizens of German extraction, furnish an illustration of the justness of this criticism; and indicate that the treaty does not operate to the satisfaction of American citizens of German extraction.” — Foreign Relations of the United States, title Germany. 1879, Washington, D. C. 2 Hon. William D. Kelley, Letters from Europe. Porter & Coates: Phila- delphia. 8 Calvo, Derecho Internacional, Paris, Vol. I. p. 288 e¢ seg. note. A TREATISE ON CITIZENSHIP. 225 § 184. The zeal and active efforts of the late United States Minister at Berlin,! in behalf of individuals of German extrac- tion who had been naturalized in the United States, and who, on return to their native country, were arrested and held to do military duty in the German army, had much to do with bringing about the physical prostration which resulted in death at his post.? In commenting upon the vigorous and almost universal im- pressment of men for military duty by the German chancellor, a Washington journal of a recent date? used this language : — “ Every increase of the German army sends a much larger number of Germans to the United States than are added to the military establishment of William’s empire. Bismarck has been the most successful emigration commissioner we have ever had in Europe, with the possible exception of famine.” Says another journal *: — “ The emigration from Germany to this country was twenty per cent greater last year than in any preceding. The mili- tary laws incite emigration, and there is no doubt that Bis- marck, who has been attempting to prevent the departure of his subjects, will, if the exodus continues, find some means to compel them to stay at home.” § 185. Interest, not less than a wise policy and the good faith of the United States, requires that the rights of natu- ralized citizens abroad should be sacredly guarded and pro- tected. It is believed that 400,000 immigrants from Europe 1 Bayard Taylor. 2 Letters from Europe, by Hon. William D. Kelley, M. C., p. 39. 8 The Post, April 15, 1880. See also The Political Comedy of Europe. Paris and London, 1880. The reputed author is Mr. Daniel Jobnson, an American ex-diplomatist. The work isa satire mainly directed against German militaryism. “Germany,” wrote a French attaché at Berlin to his government a few years before the Franco-Prussian war, “is not a country which has an army: itis an army which owns a country.” 4 The Capital. 15 226 A TREATISE ON CITIZENSHIP. will be added to the population of the United States this year. There were 319,000 in 1854, and this is the largest number for any one year. Over 1,900 immigrants arrived in New York April 23, 1880, in addition to 4,238 landed the day before, — a total of 6,168 for two days. This will make an aggregate of over 30,000 ar- rivals for the month, and it is estimated that the total for April will exceed 46,000, as compared with 11,408 for the same period last year. The estimate for May is about 50,000, as against 18,520 for the same month last year. The majority of the immigrants are agriculturists, and have their passage tickets to different parts of the West. The greater number of them are German and Irish. The number of foreign- born inhabitants in the United States in 1870 was nearly 6,000,000. 1 Jn the tide of emigration flowing here from Europe the largest volume of it, in proportion to population, still comes from Ireland, which contributed during the month of May to the port of New York alone 13,596 immigrants. Germany, with probably ten times the population of Ireland, contributed only about twice that number, or 27,109. England, with about three times its population, contributed only a little over one half as much, or 7,797. France proves at once her great prosperity and the love of Frenchmen for their own country in the very small contribution which she made in that month to the European exodus, — only 544, The autocratic institutions of Russia do not seem to discontent her people very much, at least not to the extent of driving them from home, for they added only 218 to the American population for the month of May. Sunny Italy only sent us 1,694. Strange to say, the coun- tries that equal, if they do not exceed Ireland in their proportionate contribu- tions to the tide of emigration are Sweden and Norway, where both the politi- cal and social institutions are calculated to conduce most strongly to the prosperity and contentment of the people. Sweden, out of her population of about 4,000,000, contributed 12,563; and Norway, out of her population of about 2,000,000, 3,189. It would appear from these figures that consider- ations of political rule and land tenure do not exercise such a powerful influ- ence on expatriation as has been supposed, for we find Russia, where these considerations might be supposed to favor expatriation, sending us only 218 of her 80,000,000, and Sweden and Norway, self-governing communities with a population of peasant proprietors, sending us 15,752 of their 6,000,000. The subject is well worthy of a thorough study in America as well as in Europe. — The Republic, Washington, D. C., 18th June, 1881. A TREATISE ON CITIZENSHIP. 22,7 The late Senator Morton had occasion to investigate the subject of Chinese immigration to the United States; and referring to the controversies growing out of it, he came to the conclusion that the appropriate solution of the question was to be found in the naturalization of the Chinese.! Under existing law of the United States, the Chinese may not be naturalized.? § 186. In his last message to Congress (Dec. 5, 1876), President Grant, referring to naturalization and expatriation, said: “I suggest no additional requirements to the acquisi- tion of citizenship beyond those now existing, but I invite the earnest attention of Congress to the necessity and wisdom of some provisions regarding uniformity in the records and certificates, and providing against the frauds which fre- quently take place, and for the vacating of a record of natu- ralization obtained in fraud. These provisions are needed in aid and for the protection of the honest citizen of foreign birth, and for the want of which he is made to suffer not in- frequently. The United States has insisted upon the right of expatriation, and has obtained after a long struggle an admission of the principles contended for by acquiescence therein on the part of many foreign powers and by the con- clusion of treaties on that subject. It is, however, but justice to the government to which such naturalized citizens have formerly owed allegiance, as well as to the United States, that certain fixed and definite rules should be adopted gov- 1 See Incomplete Report of Minority of Congressional Committee on the Chinese Question, 44th Congress, 2d Session. See also Chinese Immigration, Seward, Scribner, 1880. 2 A native of China, of the Mongolian race, is not a “ white person” within the meaning of sect. 2,169, as amended in 1875, and therefore is not entitled to become a citizen of the United States. In the Matter of Ah Yup, United States Circuit Court, California, 5 Sawyer, p. 155. And Charles Miller’s Appli- cation, United States Circuit Court, New York, infra, p. 230. Moy Sam’s case, before Moran, J., Chicago, Ill, March 1, 1881. 228 A TREATISE ON CITIZENSHIP. erning such cases and providing how expatriation may be accomplished. While emigrants in large numbers become citizens of the United States, it is also true that persons both native [born] and naturalized, once citizens of the United States, either by formal acts, or as the effect of a series of facts and circumstances, abandon their citizenship and cease to be entitled to the protection of the United States, but con- tinue on convenient occasions to assert a claim'to protection in the absence of provisions on these questions. . . . The delicate and complicated questions continually occurring with reference to naturalization, expatriation, and the status of such persons as I have above referred to, induce me to earn- estly direct your attention again to these subjects.” § 187. In a former message (Dec. 7, 1875), the President called attention to the fact that ‘“‘fraud being discovered, however, there is no practicable means within the control of the government by which the record of naturalization can be vacated ; and should the certificate be taken up, as it usually is, by the diplomatic and consular representatives of the gov- ernment to whom it may have been presented, there is noth- ing to prevent the person claiming to have been naturalized from obtaining a new certificate from the court in place of that which has been taken from him.” § 188. The want of a proper remedy and means for the vacating of any record fraudulently made, with a provision in the law for punishing the guilty parties to the transaction was, and is, casus omissus. And it was under this view of the existing law that the President urged action by Congress. Attention was also called to the necessity of legislation con- cerning the marriages of American citizens, contracted abroad, and concerning the status of American women who may marry foreigners, and of children born of American parents in a foreign country. A TREATISE ON CITIZENSHIP. 229 § 189. The original naturalization laws only extended to free ‘“* white”? persons. But when Congress was engaged in framing the law of July 14, 1870, Senator Sumner moved to strike out the word “ white.” Senator Williams then pro- posed to insert at the end of the section: “ But this act shall not be construed to authorize the naturalization of persons born in the Chinese Empire.” The following debate is then reported : — Morton. — This amendment involves the whole Chinese problem. Are you prepared to settle it to-night ? STEWART. — Without discussion. Morton. — And without discussion? I am not prepared. to do it. SumMNER. — The senator says it opens the great Chinese question. It simply opens the question of the Declaration of Independence, and whether we will be true to it. “ All men are created equal,” without distinction of color. McCreery offered as an amendment to the amendment: “ Provided, that the provisions of this act shall not apply to persons born in Asia, Africa, or any of the islands of the Pacific, nor to Indians born in the wilderness.” Warner offered as a substitute for the original amend- ment: “ That the naturalization laws are hereby extended to aliens of African nativity and to persons of African descent.” This was concurred in, — yeas 20, nays 17.1 Such was the law on the statute book when the revisers of the United States Statutes prepared their’revision, which, in the first draft, was formulated as follows: ‘The provisions of this title shall apply to aliens of African nativity and to persons of African descent.” ? § 190. In 1875, when this section was before Congress for amendment, attention was called to the fact that, as the law stood, it would authorize the the naturalization of Asiatic 1 Sect. 7 of the Act of July 14, 1870. 2 Sect. 2169. 230 A TREATISE ON CITIZENSHIP. immigrants ; and the above section was amended by inserting in the first line, after the word “aliens,” the words, *“ being free white persons, and to aliens,” etc.! The decisions of Sawyer, J.,2 in Ah Yup’s Case, and of Choate J.,2 on Charles Miller’s application, rest upon the law as amended. The protection of the civil rights of Chinamen in the United States are guaranteed by treaty stipulations. Article VI. of the treaty of July 28, 1868, with China, in effect secures to Chinamen the right to reside in the United States upon the same terms as the subjects of Great Britain and France, and this implies the right to follow any lawful pursuit or calling not prohibited to the subjects of these two powers.* § 191. The opinion of Akerman, Attorney-General of the United States in 1871, in the case of Moses Stern,® is some- times cited in denial of the proposition that the record of naturalization is conclusive upon all the world, and may not be impeached, except for fraud, or want of jurisdiction in the court making the record. It is not authority for any such position. This opinion was given in a case which turned upon the construction of the Treaty of 1868 between the United States and the North German Confederation ; and the conclusion was doubtless greatly influenced, and may have been justified, perhaps, by the circumstance that Stern, while in Prussia, never avowed himself an American, but, on the contrary, took a passport as a Prussian. When examined and tested in the light of international law, by the practice of ' Act of Feb. 18, 1875. 2 United States Circuit Court, California, April 29, 1878. 3 Ib., New York, July, 1879. * Chapman »v. Toy Long, 4 Sawyer, U. 8. Cir. Ct. Rep. p. 28. See also, In re Ah Fong, 3 Sawyer, U. 8. Cir. Ct. Rep. p. 144; United States v. Jack- son, 3 Sawyer, U. 8. Cir. Ct. Rep. p. 59. See also Chy Fung v. San Fran- cisco, 92 U.S. Rep. p. 275. 5 Opinions of Attorneys-General, Vol. XIII. p. 376. A TREATISE ON CITIZENSHIP. 231 nations, and under authoritative precedents, it will be found to stand alone. Akerman adds: ‘“ But recitations in the rec- ord of matters of fact are binding only upon parties to the proceedings and their privies. The government of the United States was no party, and stands in privity with no party to these proceedings. And it is not in the power of Mr. Stern by erroneous recitations in ex parte proceedings to conclude the government as to matters of fact.” CS%e.) It will appear from this extract that the attorney-general, in this case, failed to recognize the fact that the certificate or record of - naturalization is in the nature of a judgment in rem, and that the proceeding to obtain it is invariably ex parte. And he seems to be oblivious of the fact that these records are made, or at least are supposed to be made, by the court, and not by the applicants for admission to citizenship. In Levy’s Case,! Williams, Attorney-General, said that the proceeding to obtain naturalization was a judicial act, and that it has the force and effect of a judgment. § 192. It follows, if the proposition heretofore laid down in this treatise be correct, that in absence of treaty stipula- tions or concessions as to naturalization, the matter, in prac- tice, is within the exclusive control of the power issuing the certificate or letter; and the judgment of the tribunal or court, to whom the power to grant the same is confided by the supreme power in the state, is conclusive as to law and fact everywhere and upon all the world.? 1 14 Opinions Attorneys General, p. 509. 2 United States 7. The Acorn, 2 Abbott’s U.S. Rep. 443; The People, &c., v. McGown, 77 Ill. 644, and cases cited. See opinion of Blatchford, J., Circuit Court of the United States for the Southern District of New York, in the matter of Peter Coleman, on Aabeas corpus; opinion of Freedman, J., Su- perior Court of New York, in Christern’s Case, 1879. See letter of Mr. Evarts to Mr. Fish, Nov. 12, 1879, Foreign Relations of the United States, 1880, p. 952; also the decision of Sir Edward Thornton (umpire of the United States and Mexican Commission), in case of heirs of Shreck. 232 A TREATISE ON CITIZENSHIP. “It is an universal principle that where power or jurisdic- tion is delegated to any public officer or tribunal over a sub- ject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter ; and individual rights will not be disturbed collaterally for anything done in the exercise of that discre- tion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person deny- ing its validity, are, power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal is provided for, or other provision, by some appellate or supervisory tribunal, is prescribed by law.” ! § 1938. When the inquiry is, Was there fraud? it will be instructive to refer to the three rules laid down in Conard v. Nicoll,? and which were declared incontrovertible by the Supreme Court of the United States. When the inquiry is, Had the tribunal power or jurisdic- tion? it will be instructive to consult Robinson. In another case the United States Supreme Court said: “« The judgment of confirmation raises a presumption conclu- sive, while that judgment stands unreversed, that whatever was necessary to its legality was proved and found by the court, and it cannot be impeached collaterally.” 6 “The distinction,” said Longyear, J., announcing the de- cision in The Acorn, “between cases in which judgments may and those in which they may not be impeached collater- 1 United States ». Arredondo, 6 Pet. (U. 8.) 729-730, and cases cited. 2 4 Pet. (U. 8.) p. 295. 8 United States v. Arredondo, supra. * Robinson’s Practice, Vol. VII. chap. i. tit. i. 5 Voorhees v. Bank of the United States, 10 Pet. (U. 8.) p. 193. A TREATISE ON CITIZENSHIP. 233 ally, as derived from the authorities, and founded in common sense, may be stated thus: They may be impeached by facts involving fraud or collusion, but which were not before the court or involved in the issue or matter upon which the judg- ment was rendered. They may not be impeached for any facts, whether involving fraud or collusion or not, or even perjury, which were necessarily before the court and passed upon.” § 194. It has been from time to time urged that the same effect should not be given to a certificate of naturalization as is given, generally, to the judgments, sentences, or decrees of courts of record; and that naturalization proceedings, as usually conducted, are virtually ex parte. But the answer to these suggestions is that the proceeding to obtain naturaliza- tion, in the United States at least, is a judicial one ; and it is before a court which exercises a peculiar jurisdiction. The proceeding is, as it is technically termed, in rem, and the gen- eral rule, as to the effect and conclusiveness of a judgment, sentence, or decree thereupon pronounced, is familiar.* A valuable and instructive discussion of the plea of res judicata as estoppel, and of the replication thereto, is found in Robinson’s Practice,2 where the leading cases are com- pared, criticised, and distinguished. § 195. What the policy of the Executive Department of the United States has been may be inferred from what follows. Under date Oct. 14, 1869, the Department of State of the United States issued circular instructions to diplomatic agents and consuls, warning them to issue passports only to citizens of the United States; and requiring of them vigilance in as- certaining in all cases whether applicants were bona fide citi- zens. We quote from this circular, as follows : — 1 Starkie on Evidence, pp. * 241-248. 2 Vol. VIL. chap. i. tit. i. 234 A TREATISE ON CITIZENSHIP. “Cautious scrutiny is enjoined in such cases, because evi- dence has been accumulating in this department for some years that many aliens seek naturalization in the United States without any design of subjecting themselves by per- manent residence to the duties and burdens of citizenship, and solely for the purpose of returning to their native country and fixing their domicile and pursuing business therein, relying on such naturalization to evade the obligations of citizenship to the country of their native allegiance and actual habita- tion. To allow such pretensions would be to tolerate a fraud upon both the governments, enabling a man to enjoy the ad- vantages of two nationalities, and to escape the duties and burdens of each. “The United States have treaties with several powers regu- lating the rights of naturalized citizens of the United States on their return to their native lands. The protection which the passport gives is regulated in each such case by the terms of the treaty.” Again, “It is provided by the laws of 1855! that persons born out of the limits and jurisdiction of the United States, whose fathers were or shall be, at the time of their birth, cit- izens of the United States, shall be deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States. Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens; but, while the United States may by law fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon per- sons who are not rightfully subject to the authority of any ' foreign country or government, it ought not, by undertaking to confer the rights of citizenship upon the subject of a for- eign nation who had not come within our territory, to inter- 1 10 Stat. at Large, p. 604. A TREATISE ON CITIZENSHIP. 235 fere with the just rights of such nation to the government and control of its own subjects. If, by the laws of the country of their birth, children of American citizens born in such a coun- try are subjects of its government, the legislation of the United States will not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory. If, therefore, such a person, who remains a resident in the country of his or her birth, applies for a passport, as a citizen of the United States, such passport will be issued in the qualified form. * The same law of 1855 further provides, that any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen. The recog- nition of this citizenship will be subject to the qualification above referred to.” §196. The conflict which existed for some time between the views of the executive and the judicial department of the Gov- ernment of the United States on the subject of expatriation! has been accounted for by pointing out that the policy of the federal judiciary was shaped by Marshall and other Federal- ists and Whigs who followed Hamilton, while the policy of the executive department was formulated and generally con- trolled by statesmen of the Jeffersonian or Democratic school. Mr. Ashton accounts for the contrariety between the judi- ciary and executive and the’ legislative departments as fol- lows: ‘*While the tendency of the judicial mind in this country has been against the right of a citizen to expatriate himself, the executive and legislative departments of our government have, from the beginning, proceeded upon the notion that such a right existed, and could not be denied. The explanation of the contrariety of opinion on this subject is found in the fact that the judicial department has had 1 Supra, pp. 118, 119. 236 A TREATISE ON CITIZENSHIP. occasion to deal with the doctrine, in its application to citi- zens of the United States who have asserted the right as against our Government, whereas the other departments have been called upon to consider the question principally in its relation to the citizens or subjects of other countries who have sought to adopt our allegiance. The discussion of the subject finally led to the passage of the Act of Congress, July 27,1868. 15 Statutes, p. 223.1 § 197. The present condition of the laws of the United States relating to citizenship and naturalization leave some- thing to be desired in the matter of details. Among other things, the law should prescribe uniformity in the forms and blanks used in proceedings for naturaliza- tion ; and the courts intrusted with the power to naturalize should be required to keep a record of the declaration of in- tention, as well as of the certificate of naturalization, certi- fied copies of which should be required to be executed, one copy for the use of the applicant, and one copy to be for- warded to the Department of State.? It is very desirable that there should be in all countries a -regular system of laws for naturalization. The actual crude condition of the laws of the United States should be reme- died by enactments that would make the intention, as indi- cated by permanent residence, a sufficient proof to entitle to full citizenship. It has been said that the original law was the best. The taking out of two papers is cumbersome and unnecessary. It was based on the technical theory of, first, affiliation, and, secondly, adoption. A law which would confer citizenship upon any one who solicits it after a certain residence would seem to be all-sufficient. 1 J, Hubley Ashton, Counsel for the United States, Avg. before the United States and Mexican Commission, in De Leon »v. Mexico, No. 593. 2 See passim, Billto establish a uniform rule and to provide certificates of naturalization. — 46th Congress, 2d Session, H. R., 4384. A TREATISE ON CITIZENSHIP. 237 § 198. Attention has been heretofore directed to this mat- ter, and it is receiving the consideration of a committee of the present Congress. As the laws of naturalization are enacted by the national legislature, it is incumbent upon that body to insist upon a faithful administration by the officers and the courts in all the proceedings had thereunder. An alien (alienus alienigena), under the common law of England, was, generally speaking, one born in a foreign coun- try, out of the allegiance of the king.! Two things usually combine to give the character of alien to an individual: first, birth in a foreign country ; secondly, birth out of the alle- giance of the sovereign. By the laws of the United States all persons born or naturalized in the United States, and subject to the jurisdic- tion thereof, are citizens of the United States, and of the state wherein they reside.? But the word “jurisdiction” must be understood to mean absolute or complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this coun- try, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. Persons born in the United States, who have, according to the laws of a foreign country, become subjects or citizens thereof, must be regarded as aliens.? 1 Tomlin’s Law Dictionary, word “ Alien.” — 2 Fourteenth Amendment, Constitution, sect. 1. 2 Opinion of the Attorney-General to the President, Papers on Natural- ization and Expatriation, p. 50. Executive Documents, Washington, D. C., a Indian tribes within the territory of the United States are independent political communities, and a child of a member thereof, though born within the limits of the United States, is not a citizen thereof, because not born subject to its jurisdiction. 2 Sawyer, p. 118. An Indian residing within the United States is not a “foreign citizen or 238 A TREATISE ON CITIZENSHIP. Two things usually occur to create citizenship by birth: first, birth locally within the dominion [or territory] of the sovereign ; secondly, birth within the protection and obe- dience, or, in other words, within the legiance [or jurisdiction] of the sovereign.! § 199. Children sub potestate parentis follow the condition of the father; or, if no father, of the mother. If of full age, and emancipated, they are subject to the same rules as any adult person.? Under this principle, children of aliens, the accident of whose birth occurs in American soil, and minors commorant in the country, are invested with the national character of the parent. Formerly the governments of Europe, which were mostly founded on feudal principles, regarded the sovereign as hav- ing a kind of property in his subjects or lieges, which bound them to him for life. Liegance, or allegiance, therefore, was a tie which the subject could not sunder at his pleasure. But the practice of all nations to naturalize the subjects of other nations, without inquiry as to the will of their former sover- subject ” within the meaning of sect. 2, art. 3 of the Constitution, and cannot, on the ground that he is a * foreign citizen or subject,” maintain a suit in the Circuit Court of the United States (1870). 1 Dillon, U.S. Cirt. Ct. p. 344. 1 Mr. Justice Story, 3 Pet. U. 8. Sup. Ct. Rep. 155. By the common law a child born within the allegiance of the United States is born a subject thereof, without reference to the political status or condition of its parents. — 2 Sawyer, p. 118. By art. 3 of the convention of October 20, 1818 (8 Stat. 249), between the United States and Great Britain, it was agreed that the Oregon territory should “be free and open to vessels, citizens, and subjects of the two powers,” which convention was continued in force until the convention of June 15, 1846 (9 Stat. 869): Held, that during the period of such joint occupation, the coun- try, as to British subjects therein, was British soil, and subject to the juris- diction of the King of Great. Britain, but as to citizens of the United States it was American soil, and subject to the jurisdiction of the United States; and that a child born in such territory in 1823, of British subjects, was born in the allegiance of the King of Great Britain, and not that of the United States. Jd. 2 Opinion of Secretary of the Navy. Papers on Naturalization and Expa- triation, p. 45. Government Printing Office, Washington, D. C., 1873. A TREATISE ON CITIZENSHIP. 239 eign, shows that the doctrine of the law of nations, as now accepted, really is that a man may throw off his old allegiance and embrace a new one. This has always been the American doctrine, and has now become a subject of treaty with Great Britain, all the Ger- man States, Denmark, and Sweden. These treaties, recently effected, dispose of many of the intricate questions which for- merly arose out of the claim of perpetual allegiance put forth by foreign nations.! By these treaties the rule now prevailing may be expressed generally thus: Continuous residence in this country for five years, and naturalization, effects an entire change of citizen- ship and allegiance, and all obligations to the mother country are extinguished, except those actually incurred before emigra- tion; these remain if the emigrant return to his native coun- try ; but all liability to military duty which he evaded by emi- gration is discharged. But if an emigrant return to his native country, without the intent to return to his adopted country, he is held to have renounced his naturalization. Two years’ residence in the native country manifests such in- tent not toreturn. A citizen of the United States remains a citizen until he changes his nationality in due and recognized form, and becomes a citizen of some other country.? § 200. A mere residence abroad, with no apparent intention of returning, does not denationalize an American-born citizen ; it only impresses upon him a national character for commer- cial purposes. He is still bound by the allegiance due to the country of his birth. By virtue of that allegiance that coun- try can demand his services whenever they are needed. He is entitled to its protection.® 1 See these treaties, Wharton’s Conflict of Laws, pp. 1-20, and Statutes United States, Vols. XVI., XVII. 2 Opinion of the Secretary of the Navy, 2b. pp. 43, 44... 8 Opinion of the Secretary of the Treasury, id. p. 34. In this opinion the several questions propounded by the President have been considered and answered ix extenso. 240 A TREATISE ON CITIZENSHIP. § 201. “ The act of Feb. 10, 1855,' provides that ‘ persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the right of citizenship shall not descend to persons whose fathers never resided in the United States.’ “Tt will be noticed that the act professes to extend citizen- ship only to those born abroad whose fathers ‘at the time of their birth’ are citizens. “ Every independent state has, as one of the incidents of its sovereignty, the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this, without regard to the municipal laws of the country whose subjects are so naturalized, so long as they remain, or exercise the rights con- ferred by naturalization, within the territory and jurisdiction , of the state which grants it. “ Tt may also endow with the rights and privileges of its cit- izenship persons residing in other countries, so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the state thus conferring its citizenship. “« But no sovereignty can extend its jurisdiction beyond its own territorial limits, so as to relieve those born under and subject to another jurisdiction from their obligations or du- ties thereto; nor can the municipal law of one state interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign state, and without the jurisdiction of their own country.” ? The limitation herein announced in reference to the effects 1 10 Stat. at Large, 604. 2 Opinion of the Secretary of State, 2d. p. 17. A TREATISE ON CITIZENSHIP. 241 of naturalization belong to an effete jurisprudence; and the above propositions submitted by a former Secretary of State are in conflict with the whole policy of the United States and in direct contradiction of the unbroken practice of the Executive Department. See Opinions of Attorneys-General of the United States, Vol. XII. p. 20.1 § 202. “It is evident from the proviso in the act of Feb. 10, 1855, viz., ‘ that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,’ that the law-making power not only had in view this limit to the efficiency of its own municipal enactments in foreign juris- diction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the juris- diction of the United States, and has denied to them what pertains to other American citizens, the right of transmitting citizenship to their children, unless they shall have made themselves residents of the United States, or, in the language of the Fourteenth Amendment of the Constitution, have made themselves ‘subject to the jurisdiction thereof.’”? *§ 203. “The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father. “The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and enti- tles the country within whose jurisdiction they are born to claim them as citizens, and to subject them to duties to it. “Such children are born to a double character: the citizen- ship of the father is that of the child so far as the laws of the 1 See infra, pp. 65, 66. 2 Opinion of the Secretary of State, 7. p. 17. 16 242 A TREATISE ON CITIZENSHIP, country of which the father is a citizen are concerned, and within the jurisdiction of that country ; but the child, from the circumstances of its birth, may acquire rights and owes another fealty besides that which attaches to the father. “Persons who have formally renounced their allegiance to the United States, and have assumed the obligations of citi- zen or subject of another power,— in other words, persons who have denationalized or expatriated themselves, — are ‘aliens to the United States, and can become citizens only by virtue of the same laws, and with the same formalities, and by the same process, by which other aliens are enabled to be- come citizens. “‘ Having replied to the several questions submitted, I may be permitted to express my opinion of the necessity of legis- lation to define how and by what acts, whether of commission or of omission, or of both, United States citizenship is lost. “It has been shown that in some instances recent treaties provide one test; but even in these cases further legislation is needed to relieve the decision in each case of much embar- rassment and of much doubt.” } § 204. “It is not easy to define citizenship, and but few have done it, although the general idea of what is included in the term ‘ citizen’ is pretty well understood. All agree that it includes males and females and minors. It includes all those who owe allegiance, fidelity, and support to the gov- ernment, and who, in return for the same, are entitled to be protected and defended by it. I would define a citizen of the United States to be a native-born or naturalized person, of either sex, who owes allegiance to and is entitled to pro- tection from the United States, or a person who is made a citi- zen by treaty stipulations or statutory or constitutional law.2 “ The power of conferring or taking away citizenship rests in ? Opinion of the Secretary of State to the President, id. p. 18. ? Opinion of the Secretary of the Interior, id. p. 52. A TREATISE ON CITIZENSHIP. 243 Congress. The Constitution has conferred upon it the power ‘to establish a uniform rule of naturalization.’! It is impos- sible to execute this power and make citizenship uniform unless the United States have exclusive control over the subject ; and hence it must be admitted that all the powers which the states previously had were surrendered and vested in the nation. This seems so palpably just and necessary that it requires no argument or authority in its support; but, as it may be denied, I venture to refer to the following authorities : / “In 2 Kent Com., 30, it is said, ‘ The question of citizen- ship is one of national, and not of individual (or state) sover- eignty.’ ** Judge McLean, in the Dred Scott case,? declares ‘ that a state may authorize a foreigner to hold real estate, but it has no power to naturalize foreigners and give them the rights of citizens. Such a right is opposed to the acts of Congress and subversive of the federal powers.’ “« Attorney-General Bates says: ‘Every person who is a citizen of the United States, whether by birth or naturaliza- tion, holds his great franchise by the laws of the United States, and above the control of any particular state.’ § “ Whatever difference of opinion there may be as to what other rights appertain to a citizen, all must agree that he has the right to petition, and also to claim the protection of the government. These belong to him as a member of the body politic, and the possession of them is what separates citizens of the lowest condition from aliens and slaves. To suppose that a state can make an alien a citizen, or confer on him the right of voting, would involve the absurdity of giving him the direct and immediate control over the action of the general government, from which he can claim no protection, and to which he has no right to present a petition. 1 Art. 4, sect. 8, 2d. 2 19 How. 533. = 10th Opinions, 382. 244 A TREATISE ON CITIZENSHIP. “Now, admit that a state may confer the right of voting on aliens, and it follows that we might have among our constit- uents persons who have not the right to claim the protection of the government, nor present a petition toit. But a still greater difficulty remains. Suppose a war should be declared between the United States and the country to which the aliens belong. They, as alien enemies, would be liable to be seized under the laws of Congress, and to have their goods confiscated, and themselves imprisoned or sent out of the country.” 4 § 205. “The right of protection is not confined to citizens, but extends to denizens and those having their domicile in the United States. All persons, citizens or not, who make the United States their home, whose domicile is here, and who claim the protection of the government, will obtain it if the claim be made in good faith, and the conduct of the party has not been such as to forfeit the claim. “‘ This was the case of Martin Koszta, who had only declared his intention to become a citizen, and who resided in the United States, but was temporarily absent in Turkey, inno- cently employed.” 2 This would be a more correct expression of a principle which finds support under international law, if the proposi- tion be qualified, or understood to mean that such protection will be extended to an individual whose person was at the. time of injury or arrest literally or constructively under the jurisdictional protection or within the territory of the sover- eign or state to whom the appeal is addressed. § 206. In a recent case® the Supreme Court of the United States maintained the right, under treaty stipulations, of alien 1 Calhoun (Wheaton’s Int. Law, Lawrence’s ed., 905). 2 Opinion of the Secretary of the Navy, 26. p. 46. 8 Hauenstein e¢ a/. v. Lynham, 100 U 8.5. C. Rep. p. 483. A TREATISE ON CITIZENSHIP. 245 heirs to inherit real estate situate in one of the states of the Union whose law is contra. The decision is instructive; and while pointing clearly to the character of the relations of the several states to the United States, the opinion suggests the nature of the obligation assumed ‘by the United States under treaty stipulations in respect to aliens commorant in the terri- tory and to the heirs of such aliens. The appellant was a citizen of Switzerland; and between the Swiss Confederation and the United States there is a treaty guaranteeing the security and full enjoyment of the property, right to adminis- tration, succession, etc., on behalf of citizens of either state.! A very early case is cited by the court.?, In 1857 an attor- ney-general of the United States had given his opinion that “the government of the United States has constitutional power to enter into treaty stipulations with foreign states for the purpose of restricting or abolishing the property disabili- ties of aliens or their heirs in the several states.”® The United States is a party to a large number of treaties with foreign states to this effect.* With a large number of foreign states, the United States of America have, at different times, entered into treaty stipu- lations of similar import and effect with the treaty of May 18, 1847, between the Swiss Confederation and the United States. Some of these are obsolete ; but most of them are in force.® 1 Treaty, May 16, 1847, Art. 1. 2 Ware v. Hylton, 3 Dallas, 199 (237). 3 Cushing, Droit d’Aubaine, 8, Opinions of Attorneys-General, p. 411. 4 See Treaties and Conventions between the United States and Foreign Powers, title “‘ Real Estate.” 5 Treaties with Italy, France, Bavaria, Colombia (New Grenada), Ottoman Empire, San Salvador, Two Sicilies, Peru, Nicaragua, Hesse, Nassau, Saxony, Wirtemburg, Austria, Brazil, Ecuador, Guatemala, Hanseatic Republic, Bo- livia, Dominican Republic, Brunswick and Luneberg, Orange Free State, Spain, Prussia, Hawaiian Islands, Portugal, Russia, Hanover, Sardinia. — Trea- ties and Conventions between United States and Other Powers, p. 1252. Washington, Government Printing Office, 1876. 246 A TREATISE ON CITIZENSHIP. The purpose of these stipulations is to guarantee full pro- tection in the matter of property rights to aliens, resident or non-resident, who have immediate or descendible interests in real estate and other property situated in the United States. The effect of these treaty provisions is to abolish the property disabilities of aliens, or their heirs, in the several states of the Union. The theory upon which these and simi- lar engagements have been entered into seems to have been founded, in the first instance, on the intention of the sov- ereign powers of the respective governments to prevent escheat to the state; and the purpose —as is sufficiently manifest — was to protect primarily resident aliens and their resident heirs ; and, secondly, non-resident aliens and their non-resident heirs. A TREATISE ON CITIZENSHIP. 247 PART V. § 207. Tue following is the provision of the Federal Con- stitution in reference to citizenship of the United States : — ‘* All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges -or 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 juris- diction the equal protection of the laws.” 1 Desty? has digested and grouped the decisions under this section as follows : — “«¢ Citizen’ and ‘person’ are synonymous terms ; and this section refers to natural persons. An incorporated company is not a citizen of the United States, nor a person, within the meaning of this section.* ‘ Citizen’ is entirely analogous to ‘subject’ at common law. A person may be a citizen of the 1 Constitution of United States, Fourteenth Amendment, sect. 1. See, also, Revised Statutes of the United States, p. 351, sects. 1992-2001. The language of the Act of Congress (9 April, 1866), defining citizenship, is “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” 14 Stats. at Large, p. 27, sect.1. See United States v. Elm, Internal Revenue Record, Vol. XXIII. p. 419, opinion by Wallace, J. 2 Federal Constitution. ; 8 People v. C. & A. R. R. Co., 6 Chic. L. N. 280; 6 Bissell, 107. 4 Insurance Co. v. New Orleans, 1 Woods, 85. , 5 United States v. Rhodes, 1 Abb. U.S. 39; North Carolina v. Manuel, 4 Dev. & B. 20; McKay v. Campbell, 2 Sawy. 129. 248 A TREATISE ON CITIZENSHIP. United States without being a citizen of any state! Women may be citizens,2, This section does not confer citizenship upon persons of foreign birth.3 The words ‘subject to the jurisdiction thereof’ exclude the children of foreigners tran- siently within the United States, as ministers, consuls, or subjects of a foreign nation. This amendment does not in- clude Indians and others not born in and subject to the juris- diction of the United States ;® but an Indian, if taxed, after tribal relations have been abandoned, is a citizen. Colored persons, equally with whites, are citizens;7 but an escaped slave, resident in Canada, or his children, are not citizens.’ This section recognizes the difference between citizens of the United States and citizens of the state. The main purpose of this section was to establish the citizenship of the negro.” This clause applies only to citizens removing from one state to another. The purpose of this amendment was to secure to the colored race in the South the benefit of the freedom previously accorded to them.” Privileges and immunities of citizens include such as are derived from, or recognized by, the Constitution, and are not identical with those referred to in Sect. 2 of Art. 4.% This amendment adds nothing 1 Slaughter House Cases, 16 Wall. 74; United States v. Cruikshank, 92 U. 8. 548, 1 Woods, 308; Cully v. Baltimore, etc. R. R. Co., 1 Hughes, 536. 2 Miner v. Happersett, 21 Wall. 162. 3 Van Valkenburgh v. Brown, 43 Cal. 43. 4 Slaughter House Cases, 16 Wall. 73. 5 McKay vo. Campbell, 2 Sawy. 129. 8 United States v. Elm, 23 Int. Rev. Rec. 419. ™ In re Turner, 1 Abb. U. 8. 84. 8 Hedgman v. Board, 26 Mich. 51. ® Frasher v. State, 3 Tex. Ct. App. 267. © Slaughter House Cases, 16 Wall. 36; Frasher v. State, 3 Tex. Ct. App. 267. Wl fy parte Hobbs, 1 Woods, 542; Live Stock, etc. Asso. v. Crescent City, 1 Abb. U. 8. 397. 12 Slaughter House Cases, 16 Wall. 71. 33 State v. McCann, 21 Ohio St. 198. ™4 Slaughter House Cases, 16 Wall. 75. The meaning of “ privileges” in art. 4, sect. 2 (1) is such as each state gave to its own citizens; while its A TREATISE ON CITIZENSHIP. 249 to the rights of one citizen as against another,! nor does it add to the privileges or immunities existing at the time of its adoption ;? it is merely a guaranty that they shall not be impaired by the states or by the United States3 It not merely requires equality of privileges and immunities, but demands that they shall be absolutely unabridged and unim- paired. States may pass laws to regulate the privileges and immunities of its own citizens, provided they do not abridge the privileges and immunities of citizens of the United States,> so a state may pass laws for the protection of the lives, health, and property of its citizens.6 Congress cannot protect a citizen in the right to the use of a public convey- ance for local travel.” The right of intermarriage between the races is not a priv- ilege or immunity protected by this amendment, the mar- riage laws being under control of the states ;° so states may meaning in this section embraces much more and applies to all citizens of the United States (Live Stock, etc. Asso. v. Crescent City, 1 Abb. U.S. 398; United States v. Anthony, 11 Blatchf. 204), the meaning to be determined by the court in each particular case. Zx parte Hobbs, 1 Woods, 542; Live Stock, etc. Asso. v. Crescent City, 1 Abb. U.S. 397. See ante, art. 4, sect. 2. 1 United States v. Cruikshank, 92 U. 8. 543; 1 Woods, 308; Ward »v. Flood, 48 Cal. 36. 2 Miner v. Happersett, 21 Wall. 162; Ward v. Flood, 48 Cal. 36; Frasher v. State, 3 Tex. Ct. App. 267. 8 United States v. Cruikshank, 92 U.S. 543; 1 Woods, 308; Van Valken- burgh v. Brown, 43 Cal. 43. But see United States v. Hall, 13 Int. Rev. Rec. 181; 3 Ch. L. N. 260. 4 Live Stock, etc. Association v. Crescent City, 1 Abb. U. S. 398. 5 Slaughter House Cases, 16 Wall. 36. 6 74.; Thorpe v. Rutland, etc. R. R. Co., 27 Vt. 149; New York v. Miln, 11 Peters, 102; Prige ». Comm., 16 Peters, 539; Comm. v. Kimball, 24 Pick. 359; Frasher v. State, 3 Tex. Ct. App. 273. This amendment was not intended to interfere with state laws for the regulation of pursuits, professions, or the use of property. Munn ». People, 69 Ill. 80. 7 Cully v. Balt. & O. R. R., 1 Hughes, 536. 8 Ex parte Hobbs, 1 Woods, 539; Lonas ». State, 3 Heisk. 287; State v. Gibson, 36 Ind. 389; Conner ». Elliott, 18 How. 591; Frasher ». State, 3 Tex. Ct. App. 263. But see Burns v. State, 48 Ala. 195. 250 A TREATISE ON CITIZENSHIP. provide against miscegenation, and make it a felony.! Nor is the right of trial by jury,? nor the right to practise law? or medicine, nor the right to sell intoxicating liquors,’ nor the right of fishery.® The possession of all political rights is not essential to citi- zenship.’ So a state may regulate the conditions for the ten- ure of office,’ or determine the class of inhabitants who may vote.2 The elective franchise is not a natural right, nor an immunity.” By this amendment, all persons born in the United States are citizens thereof and capable of becoming voters, but the provision is not self-executing." It abrogates the provision in a statute discriminating in votes for corpo- ration commissioners on account of race or color. By this amendment, Congress had the right to pass the Civil Rights Bill,® which is constitutional.* Congress can only legislate in the protection of the rights of citizens of the United States, as such.® This amendment authorizes an act pro- 1 Frasher v. State. 3 Tex. Ct. App. 263; State v. Gibson, 36 Ind. 389. 2 Walker v. Sauvinet, 92 U. 8. 90. ® Bradwell v. State, 16 Wail. 130; United States 7, Anthony, 11 Blatchf. 204. 4 Ex parte Spinney, 10 Nev. 323. 5 Bartemeyer v. Iowa, 18 Wall. 129. ®° McCready v. Virginia, 94 U. 8. 391. 7 People v. De La Guerra, 40 Cal. 311. 8 Kennard v. Louisiana, 92 U.S. 480; Spencer v. Board, 1 McArth. 169. ® Van Valkenburgh v. Brown, 43 Cal. 43; United States ». Anthony, 11 Blatchf. 200; United States v. Crosby, 1 Hughes, 448; Miner ». Happersett, 21 Wall. 162; United States v. Cruikshank, 92 U. 8. 543. But see Dillard wv. Webb, 55 Ala. 468. 10 Miner ». Happersett, 21 Wall. 162; United States ». Cruikshank, 92 U. 8. 542; 1 Woods, 308; United States ». Anthony, 11 Blatchf. 200; Spencer’ v. Board, 1 McArth. 169; Van Valkenburgh ». Brown, 43 Cal. 43. 11 Spencer v. Board, 1 McArth. 169. 12 Dillard v. Webb, 55 Ala. 468. 18 Smith v. Moody, 26 Ind. 307. 14 In re Turner, 1 Abb. U. 8. 88; Chase, 157. 15 Cully v. Balt. & O. R. R. Co., 1 Hughes, 536 ;' United States v. Cruik- shank, 92 U. 8S. 560; 1 Woods, 308. A TREATISE ON CITIZENSHIP. 251 viding for the equal enjoyment of accommodations, advan- tages, facilities, and privileges of inns, conveyances, thea- tres, etc.1 It was not intended to transfer the protection of all civil rights to the federal government, nor to bring within the power of Congress the entire domain of civil rights here- tofore belonging exclusively to the several states.? The protection of life and personal liberty rests in the state alone.? The federal government cannot punish an indi- vidual for conspiring to deprive a person of life, liberty, or property without due process of law. An arrest made by an officer of the state militia, in pursuance of authority granted in time of insurrection, is not a deprival of liberty without due process of law.> A law allowing overseers to commit a vagrant on an ex parte hearing deprives of liberty without due process of law. A state law regulating a pursuit or profession, or regulating the use of property, does not abridge the liberty of the citizen.’? A statute regulating the use and even the price of property does not, in all cases, deprive of property without due process of law ;* nor does a law which prohibits common carriers from discriminating against pas- sengers on account of race or color. Private property de- voted to public use ceases to be private property to the extent of that use.” Due process of law means such an ex- ertion of the power of government as the settled maxims of 1 United States v. Newcomer, 22 Int. Rev. Rec. 115; 2 Am. L. T., Rep. U.S. 198. 2 Slaughter House Cases, 16 Wall. 36; Frasher v. State, 3 Tex. Ct. App. 267. : 8 United States v. Cruikshank, 92 U. 8. 542; 1 Woods, 308. 4 United States v. Cruikshank, 92 U. 8. 542; 1 Woods, 308. ® In re Burgen, 2 Hughes, 513. ® Portland v. Bangor, 65 Me. 120. 7 Munn ». Illinois, 94 U. 8. 113; 69 Ill. 80; Bx parte Spinney, 10 Nev. 323; Railroad Co. v. Richmond, 96 U. 8S. 521. § Munn ». Illinois, 94 U. 8. 113; 69 Il. 80. ® De Cuir v. Benson, 27 La. An. 1. 1 Munn ». Illinois, 94 U. S. 118; 69 Til. 80. 252 A TREATISE ON CITIZENSHIP. law permit and sanction! in the regular course of administra- tion, according to the prescribed forms,? according to the law of the land. It means more than a special act authorizing the deprivation. Where the statute makes ample provision for judicial inquiry, it is due process of law.6 A party is not deprived of property without due process of law, although the case was tried without a jury.6 The requirement is met if the trial is had according to the settled course of judicial proceedings.’ So, the fact that the judgment of the commis- sioner is final does not deprive such person of due process of law ;® and the entry of judgment on a forfeited recognizance does not take property without due process of law.2 The amendment does not apply to revenue collection.” Assessment of taxes is necessarily summary, and need not be by judicial procedure." So, a levy by a collector, in pur- suance of a state law, is due process of law.? A statute reg- ulating proceedings in contestations between claimants for a judicial office is not a violation of this section." Equal protection implies not only equal accessibility to courts for the prevention or redress of wrongs and the en- forcement of rights, but equal exemption with others of the same class from all charges and burdens of every kind.¥ This amendment does not create any new rights, but oper- 1 Ex parte Ah Fook, 49 Cal. 402. 2 Rowan »v. State, 30 Wis. 129. 8 Walker v. Savinet, 92 U.S. 98; Kennard v, Louisiana, 92 U. 8. 483. 4 Clark v. Mitchell, 64 Mo. 564. ’ 5 Pearson v. Yewdall, 95 U.S. 296. 6 Walker v. Savinet, 92 U. 8. 90. e ™ Murray v. Hoboken etc. Co., 18 How. 280; Walker v. Savinet, 92 U. 8. 93. 8 Ex parte Ah Fook, 49 Cal. 402. ® People v. Quigg, 59 N. Y. 83. 10 Davidson v. New Orleans, 96 U. 8. Rep. p. 97. 1 McMillen v. Anderson, 95 U. 8. Rep. p. 37. 12 Id, 18 Kennard v. Louisiana, 92 U. S. 480. 4 Fe parte A Fong, 3 Sawy. 144, A TREATISE ON CITIZENSHIP. 258 ates on rights as it found them established.! It applies to all persons, whether natives or foreigners, while within the ju- risdiction of the United States,? including persons of color,? and operates as a guaranty. It means that persons made citizens by this amendment should be protected in the same manner, and to the same extent, that white citizens are pro- tected.6 A statute excluding colored children from the ben- efits of the school system denies them the equal protection of the laws ;® but a statute providing for the education of col- ored children in separate schools is valid.7 A law imposing a tax on minors, which discriminates in its operation as to race, is in conflict. A state may legislate as to the rules of evi- dence,? and may exclude Chinese from the right to testify where a white person is a party. The Civil Rights Bill had the effect of excluding the testimony of Chinese, for or against negroes, equally with whites. This clause does not prevent the states from imposing a more severe punishment for adultery or fornication where the parties are of different races.2 A statute authorizing the recovery of double the value of property destroyed by a railroad train does not deprive of the equal protection of the laws ; 8 nor does a statute regulat- ing slaughter houses; nor a statute regulating the charges 1 Ward v. Flood, 48 Cal. 36. j 2 Ex parte Ah Fong, 3 Sawy. 144. 8 Slaughter House Cases, 16 Wall. 36. 4 United States v. Cruikshank, 92 Wall. 543; 1 Woods, 308. 5 Slaughter House Cases, 16 Wall. 36. 6 Ward v. Flood, 48 Cal. 836; but see Marshall v. Donovan, 10 Bush, 681. 7 Ib. Cory v. Carter, 48 Ind. 327; State ». McCann, 21 Ohio St. 198. 8 United States v. Jackson, 3 Sawy. 61. 9 People v. Brady, 40 Cal. 198; Duffy v. Hobson, 40 Cal. 240. 0 7%., overruling People v. Washington, 36 Cal. 658. 11 People v. Washington, 36 Cal. 658. 12 Ford v. State, 53 Ala. 150; Ellis v. State, 42 Ala. 525. 18 Tredway v. 8. C. & St. P. R. Co., 43 Iowa, 527. 44 Slaughter House Cases, 16 Wall. 36. 254 A TREATISE ON CITIZENSHIP. for storage in warehouses.! A state may legislate to prevent lewd and debauched women from landing as passengers,” or to prohibit females from being in places where liquor is sold.* This provision simply prevents states from doing that which will deprive of property, not from regulating the use of property.* Claims against the United States. § 208. Claims against the United States are examined either by officers in the departments of the Government, by the Court of Claims, the Commissioners of Claims, by committees of Congress, or by mixed commissioners, under treaties. Claims may be presented in either House of Congress, by petition or by bills introduced by members. These are gen- erally referred to appropriate committees, and by these ex- amined, and then a report is made to the House in which the claim was presented, and if in favor of the claim with a bill or joint resolution for an appropriation to make payment, which is considered and passed, or rejected, as other private bills. Sometimes the bill refers the examination of the claim to the Court of Claims or to the Commissioners of Claims. The Court of Claims renders judgments subject to an ap- peal to the Supreme Court of the United States, in which final judgment is entered, and these judgments are regarded as conclusive, and paid without examination by appropria- tions made by Congress. The officers of the several departments of the Government examine the ordinary claims for salaries and other expenses of the Government, when they are reported to the proper 1 Munn ». Illinois, 94 U. 8. 118; 69 Dl. 80. 2 Fe parte Ah Fook, 49 Cal. 402. 8 Ex parte Nellie Smith, 38 Cal. 709, 4 Munn ». Illinois, 94 U.S. 134. A TREATISE ON CITIZENSHIP. 255 officers of the Treasury Department and paid out of appro- priations made from time to time by Congress. An examination of the statutes will show the jurisdiction exercised by the officers of the departments, the Court of Claims, and the Commissioners of Claims, in the examination of claims, and the mode of procedure authorized by law. Mixed commissions, under treaties, exercise such jurisdic- tion and in such mode as the treaties provide, aided by such legislation of Congress as may be necessary, and their awards are paid by appropriations made by Congress.} International Tribunals, or Mixed Commissions under Treaty Stipulations for the Settlement of Claims. § 209. Since the organization of the Government of the United States, there have been many international tribunals or mixed commissions under treaties for the adjustment of claims between this and foreign powers. The adjustment of such claims is usually committed to a tribunal composed of three members, —an arbitrator to represent each of the contracting parties, and an umpire, se- lected in accordance with the treaty stipulations. The com- missioners are assisted by counsel and agents appointed by the respective governments. Usually, these commissions are constituted to examine and adjudicate the claims of the citi- zens of the respective countries, parties to the convention ; but occasionally, as in the case of a commission? now in ses- sion in Washington, they have been of a unilateral character. These tribunals are organized somewhat in the manner of modern judicial courts, being clothed with broad jurisdiction and having officers of the character to properly administer 1 The Law of Claims against Governments. Government Printing Office, Washington, D. C., 1875. 2 The United States and Spanish Commission under Agreement, Feb. 12, 1871. 256 A TREATISE ON CITIZENSHIP. the business. They have, usually, cognizance of all claims on the part of corporations, companies, or private individuals, citizens of the respective countries, arising from injuries to their persons or property by authorities of the other. Before proceeding to business, the commissioners are, according to the usual formula, required to make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to public law, justice, and equity, without fear, favor, or affection to their own country, upon all such claims above specified as shall be laid before them. The theory — which may be assumed from the language of all the treaties which have been entered into in late years, at least —is that the commissioners (or judges) provided for are to be persons learned in the law, practised in diplo- macy, familiar with justice and equity, and conversant with principles of public and international law. This has not, un- fortunately, but in exceptional instances, been the case ; and the immediate result is, that the reports and decisions of many of these commissions will be examined in vain and without discovering the existence of any uniform or consist- ent system or rule, by virtue of which claims have been adjudicated, or principles of international law have been applied or vindicated. The functions of officers of commis- sions or courts so organized, are of an elevated and dig- nified character; and should be exercised not only with diplomatic courtesy and zeal, but also in judicial gravity and. fairness. It is usually the province of the commissioners to take up controversies where diplomacy has left them. The function, office, and general jurisdiction of interna- tional commissions have been well pointed out by the Supreme Court of the United States.? It would be creditable to such governments as may here- 1 Comegys v. Vasse, 1 Peters, 212; Judson v. Corcoran, 17 Howard, 612; Phelps v. McDonald, 99 U. S. 306. A TREATISE ON CITIZENSHIP. 257 after enter into treaty stipulations with a view of organizing international tribunals or mixed commissions, if the execu- tive department of the respective states would see to it that none but persons qualified by character, experience, and the learning appropriate to the positions and offices to which they are called, are appointed to represent them. With a commission thus organized, it would not be in vain to expect decisions and adjudications of vexed but practical and im- portant living questions that would be a credit to interna- tional jurisprudence, at the same time that it would furnish a body of principles and precedents for future guidance. A recent writer advocates the creation of an International Court of Claims at the capitals of the several great powers as the best form of tribunal to consider and dispose of all claims of a character which have heretofore been submitted to international commissions. His views of the utility of such a court are presented with vigor and intelligence.1 The following proposition in relation to the conclusiveness of a certificate of naturalization has been submitted by a con- temporary American writer, as the existing law. “ The pos- session of a certificate of naturalization is not positive proof of the holder being a citizen. It is prima facie evidence, but not absolute evidence. It may have been obtained by fraud, and fraud vitiates everything. The Government, or the par- ties which dispute the claim to citizenship, must produce the proof of fraud, however, and until such proof is produced the claimant to the protection of the flag should be protected by all the power of the nation as if he were a native of the soil.” In the absence of proof of a change, the original or primitive citizenship will be presumed to continue.” 1 Washington Law Reporter, Vol. VIII. No. 49, p. 769. ? Hauenstein v. Lynham, 100 U. 8. p. 483. 17 258 A TREATISE ON CITIZENSHIP. PART VI. PROVISIONS IN THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION IN RESPECT OF CITIZENSHIP. [The reader will observe that the references, where the name of the reporter is not mentioned, are to the volume of the State Reports, and to the page in the order in which they occur.] ALABAMA, § 210. That all persons resident in this state, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the state of Alabama, possessing equal civil and political rights. — Art. 1, Sect. 2, Constitution of 1875.1 ARKANSAS. § 211. Every male citizen of the United States, or male person who has declared his intention of becoming a citizen ? 1 A person who removed to the territory of Louisiana after the treaty of Paris, in 1803, and before its admission into the Union as a state, and was an inhabitant thereof from the time of his removal until after the adoption of the state constitution and its admission into the Union, does not thereby become a citizen of the United States. State v. Primrose, Smith’s Condensed Reports, Alabama, Vol. VII. p. 260. Aliens entitled to same protection of the law as citizens. 52 Ala. p. 115. To bring a case within the rule as to alien enemies, the two parties to the contract must, at the time, be under the dominion of different and opposing flags. 60 Ala. p. 568. 2 Citizen means inhabitant, 24, p. 155. Son made citizen by naturalization of father; when, 10, p. 621; cannot be A TREATISE ON CITIZENSHIP. 259 of the same, of the age of twenty-one years, who has resided in the state twelve months, and in the county six months, and in the voting precinct or ward one month next preced- ing any election where he may propose to vote, shall be en- titled to vote at all elections by the people. — Art. 3, Sect. 1, Constitution of 1874. CALIFORNIA. § 212, Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to abridge or re- strain the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good mo- tives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact. Indictments found, or information laid, for publications in newspapers shall be tried in the county where such news- papers have their publication office, or in the county where the party alleged to be libelled resided at the time of the deprived of rights and privileges, how lost, 24, p. 161; not lost because U. 8. courts have no original jurisdiction, when, 2 Dillon, 229. Persons of color are not, 6, p. 509; rights of, not to be affected by acts of comity between states, when, 23, p. 523. In September, 1867, the U. 8. forces had power to arrest citizens, 25, p, 315 ; controversies between aliens, and jurisdiction of courts, 29, p. 637; who aided rebellion were traitors, 25, p. 574. Free negroes are not, 6, p. 509; of county, toll-bridges free to, 20, p. 625; defined, homestead, 24, p. 155; within Confederate lines is an enemy, 24, p. 337. Of state, foreman of grand jury must be, 10, p. 78. Alien suing jointly with, 2 Peters, 556; of parties as affecting jurisdiction of U.S. courts, Woolworth, p.175; Hempstead, pp. 472, 534. Becoming an adopted citizen of a foreign government does not work a for- feiture of any rights vested in one by law, while a citizen of the United States, though he afterward leaves this country, and takes an oath of allegiance to for- eign government with intent and effect to expatriate himself. 16, 414, 436. 260 A TREATISE ON CITIZENSHIP. alleged publication, unless the place of trial shall be changed for good cause. — Constitution of 1879, Art. 1, Sect. 9. No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legis- lature ; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. — Constitution of 1879, Art. 1, Sect. 21. Every native male citizen of the United States, every male person who shall have acquired the rights of citizenship under or by virtue of the ‘treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now, or hereafter may be, authorized by law ; provided, no native of China, no idiot, insane person, or person convicted of any infamous crime, and no person hereafter convicted of the embezzlement or misappropriation of public money, shall ever exercise the privileges of an elector in this state. — Constitution of 1879, Art. 2, Sect. 1. The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say : — Twenty-second.— Restoring to citizenship persons con- victed of infamous crimes. Foreigners of the white race or of African descent, eligible to become citizens of the United States under the natural- ization laws thereof, while bona fide residents of this state, shall have the same rights in respect to the acquisition, pos- session, enjoyment, transmission, and inheritance of prop- A TREATISE ON CITIZENSHIP. 261 erty as native-born citizens. — Constitution of 1879, Art. 1, Sect. 17. The presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well- being of the state, and the Legislature shall discourage their immigration by all the means -within its power. Asiatic coolieism is a form of human slavery, and is forever pro- hibited in this state, and all contracts for coolie labor shall be void. All companies or corporations, whether formed in this country or any foreign country, for the importation of such labor shall be subject to such penalties as the Legisla- ture shall prescribe. The Legislature shall delegate all necessary power to the incorporated cities and towns of this state for the removal of Chinese without the limits of such cities and towns, or for their location within prescribed por- tions of those limits, and it shall also provide the necessary legislation to prohibit the introduction into this state of Chinese after the adoption of this constitution. This section shall be enforced by appropriate legislation. — Constitution of 1879, Art. 19, Sect. 4.1 1 No white person born within the limits of the United States, and subject to their jurisdiction, or born without those limits, and subsequently naturalized under their laws, owes his status of citizenship to the recent amendments to the Federal Constitution. 43, p. 43. The purpose of the Fourteenth Amendment to the Constitution of the United States was to confer the status of citizenship upon a numerous class of persons domiciled within the limits of the United States, who could not be brought within the operation of the naturalization laws, because native-born, and whose birth, though native, had at the same time left them without the status of citizenship. Such persons were not white persons, but in the main were of African blood, who had been held in slavery in this country, or, having themselves never been held in slavery, were the native-born descendants of slaves. Id. Under the Fourteenth Amendment to the Federal Constitution the privi- leges and immunities of citizens of the United States are guaranteed and pro- tected in every state beyond the operation of state laws. 43, p. 43. The possessign of all political rights is not essential to citizenship. 40, p. 311. The elective franchise is not one of the immunities or privileges intended in 262 A TREATISE ON CITIZENSHIP. COLORADO. § 218. Every male person over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections : — First. He shall be a citizen of the United States, or, not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote. Second. He shall have resided in the state six months immediately preceding the election at which he offers to vote, and in the county, city, town, ward, or precinct, such time as may be prescribed by law: Provided, That no person shall be denied the right to vote at any school-district elec- tion, nor to hold any school-district office, on account of sex. — Art. 7, Sect. 1, Constitution of 1876. CONNECTICUT. § 214. All persons who have been, or shall hereafter, previous to the ratification of this constitution, be admitted freemen, according to the existing laws of this state, shall be electors. —Art. 4, Sect. 2, Constitution of 1818. { Every white male citizen of the United States who shall have gained a settlement in this state, attained the age of twenty-one years, and resided in the town in which he may offer himself to be admitted to the privilege of an elector at least six months preceding, and have a freehold estate of the yearly value of seven dollars in this state; or, having been enrolled in the militia, shall have performed military duty the first section of the Fourteenth Amendment to the Federal Constitution. 43, p. 43. The mere power of the state to determine the class of inhabitants who may vote within her limits is not curtailed in the Fourteenth Amendment. Jd. The Fifteenth Amendment took away the authority of the state to discrimi- nate against citizens of the United States on account of either race, color, or previous condition of servitude; but the power of exclusion upon all other grounds, including that of sex, remains intact. Jd. A TREATISE ON CITIZENSHIP. 263 therein for the term of one year next preceding the time he shall offer himself for admission, or, being liable thereto, shall have been, by: authority of law, excused therefrom, or shall have paid a state tax within the year next preceding the time he shall present himself: for such admission, and shall sustain a good moral character, shall, on his taking such oath as may be prescribed by law, be an elector. — Art. 4, Sect. 2, Constitution, 1818.1 DELAWARE. § 215. All elections for governor, senators, representatives, sheriffs, and coroners shall be held on the second Tuesday? of .November, and be by ballot ; and in such elections every free white male citizen of the age of twenty-one years, or up- wards, having resided in the state one year next before the election, and the last month thereof in the county where he offers to vote, and having within two years next before the election paid a county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector; and every free white male citizen of the age of twenty-one years, and under the age of twenty-two years, having resided as aforesaid, shall be entitled to vote without payment of any tax: Provided, That no person in the mili- tary, naval, or marine service of the United States shall be considered as acquiring a residence in.this state by being sta- tioned in any garrison, barrack, or military or naval place or station within this state; and no idiot, or insane person, or pauper, or person convicted of a crime deemed by law a felony, shall enjoy the right of an elector; and that the legis- lature may impose the forfeiture of the right of suffrage as a punishment for crime. — Art. 4, Sect. 1, Constitution, 1831.3 1 A free colored person born in this state is a citizen of the state and of the United States, within the meaning of the amendment to the constitution of the state, adopted in October, 1845. Opinion of the judges. 382, p. 565. 2 Amended in 1855. Tuesday following first Monday. 8 The disability and incompetency of free negroes to testify as witnesses in 264 A TREATISE ON CITIZENSHIP. FLORIDA. § 216. Every male person of the age of twenty-one years and upwards, of whatever race, color, nationality, or previous condition, or who shall, at the time of offering to vote, be a citizen of the United States, or who shall have declared his intention to become such in conformity to the laws of the United States, and who shall have resided and had his habita- tion, domicile, home, and place of permanent abode in Florida for one year, and in the county for six months, next preceding the election at which he shall offer to vote, shall, in such county, be deemed a qualified elector at all elections under the constitution. Every elector shall, at the time of his reg- istration, take and subscribe to the following oath : — «eT, , do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States, and the constitution and government of Flor- ida, against all enemies, foreign or domestic; that I will bear true faith, loyalty, and allegiance to the same, any ordinances or resolution of any state convention or legislation to the contrary, notwithstanding: so help me God.’’ — Art. 15, Sect. 1, Constitution, 1868. No person under guardianship, non compos mentis, or in- sane shall be qualified to vote at any election; nor shall any person convicted of felony be qualified to vote at any elec- tion unless restored to civil rights. — Art. 15, Sect. 2, Consti- tution, 1868. At any election at which a citizen or subject of any foreign country shall offer to vote, under the provisions of this con- stitution, he shall present to the persons lawfully authorized any civil action in which a white person is a party is removed and abolished by the Thirteenth Amendment of the Constitution of the United States, and the act of Congress entitled “ The Civil Rights Bill.” And a negro slave, continu- ing voluntarily in the service of her former owner after the adoption of it, may maintain an action of indebitatus assumpsit against him to recover for such ser- vice without an express contract or promise on his part to pay for it. — Hous- ton’s Delaware Reports, Vol. IV. p. 16. A TREATISE ON CITIZENSHIP. 265 to conduct and supervise such election a duly sealed and cer- tified copy of his declaration of intention ; otherwise he shall not be allowed to vote ; and any naturalized citizen, offering to vote, shall produce before said persons, lawfully authorized to conduct and supervise the election, his certificate of natu- ralization, or a duly sealed and certified copy thereof; other- wise he shall not be permitted to vote. — Art. 15, Sect. 3, ' Constitution, 1868. The legislature may at any time impose such a tax on the Indians as they may deem proper; and such imposition of tax shall constitute the Indians citizens, and they shall thenceforward be entitled to all the privileges of other citi- zens, and thereafter be barred of special representation. — Art. 17, Sect. 8, Constitution, 1868. GEORGIA. § 217. All citizens of the United States, resident in this state, are hereby declared citizens of this state; and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privi- leges, and immunities due to such citizenship. — Art. 1, Sect. 1, par. 25, Constitution, 1877.1 1 Free persons of color are not citizens, 4, p. 68. All persons found within the limits of a government, whether their resi- dence be deemed permanent or temporary, are to be deemed so far citizens or subjects thereof as that the right of jurisdiction, civil and criminal, will attach to such persons. 30, p. 440. A certificate of naturalization in these words, namely: I, A. B., clerk, etc., hereby certify that at a superior court held at Savannah, etc., before X. Y., judge, etce., on a certain day, C. D., an alien, petitioned the court to be ad- mitted a citizen, and, having in all things complied with the law in such cases, etc., the said C. D. was accordingly admitted a citizen of the United States, having first taken and subscribed in open court the oath of naturalization. Given under my hand and seal of said court, ete.: Held, To be insufficient to show that C. D. was naturalized. 18, 239. 266 A TREATISE ON CITIZENSHIP. ILLINOIS. § 218, Every person having resided in this state one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this state on the first day of April, in the year of our Lord 1848, or obtained a certificate of naturalization, before any court of record in this state, prior to the first day of January, in the year of our Lord 1870, or who shall be a male citizen " of the United States above the age of twenty-one years, shall be entitled to vote at such election. — Art. 7, Sect. 1, Consti- tution, 1870.4 INDIANA. § 219. In all elections not otherwise provided for by this constitution, every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately pre- ceding such election; and every white male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided 1 Foreign corporations are not, 48, p. 172, and 55, p. 85. The Criminal Court of St. Louis, being a court of record, having common- law jurisdiction of a certain class of cases, a seal, and a clerk, has jurisdiction, under the acts of Congress, to admit aliens to citizenship. 77, 644. Where a person of foreign birth, who was a minor when he came to this country, testified that he had never been naturalized, and did not know that his father had been: Held, That this afforded prima fucie evidence that such person is not entitled to vote, notwithstanding he had voted. 76, 34. The courts authorized by the act of Congress to admit aliens to citizenship need not possess general common-law jurisdiction over all classes of actions, but must be courts of record for all purposes, possessing powers incident to such courts, with common-law jurisdiction over all subjects upon which they have authority to adjudicate, and must exercise their powers according to the course of the common law. 77, 644. A record of naturalization, made by court of competent jurisdiction, cannot be impeached in a collateral proceeding, by parol evidence that the preliminary steps required by law had not in fact been taken. People » McGowan, Jd. Citizens may not be legal voters. 88 Lllinois, p. 202. A TREATISE ON CITIZENSHIP. 267 in the state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States conformably to the laws of the United States on the subject of naturalization, shall be en- titled to vote in the township or precinct where he may reside. — Art. 2, Sect. 2, Constitution, 1851. No soldier, seaman, or marine in the army or navy of the United States, or of their allies, shall be deemed to have ac- quired a residence in the state in consequence of having been stationed within the same, nor shall any such soldier, seaman, or marine have the right to vote.— Art. 2, Sect. 3, Constitution, 1851. No person shall be deemed to have lost his residence in the state by reason of his absence, either on business of this state or of the United States. — Art. 2, Sect. 4, Consti- tution, 1851. No negro or mulatto shall have the right of suffrage. — Art. 2, Sect. 5, Constitution, 1851. The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person con- victed of any infamous crime. — Art. 2, Sect. 8, Constitution, 1851. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens — Art. 1, Sect. 23, Constitution, 1851. [The Legislative Assembly of Indiana of 1873-1874 pro- posed several amendments to the constitution of 1851, but the Supreme Court of the state has held that they have never been adopted. These were as follows :— 1. Amend sect. 2, of art. 2, so as to read as follows: “Sect. 2. In all elections not otherwise provided for by this constitution, every male citizen of the United States of the age of twenty-one years and upward, who shall have re- sided in the state during six months, and in the township sixty 268 A TREATISE ON CITIZENSHIP. days, and in the ward or precinct thirty days, immediately pre- ceding such election, and every male of foreign birth, of the age of twenty-one years and upward, who shall have re- sided in the United States one year, and shall have resided in this state during the six months, and in the township sixty days, and in the ward or precinct thirty days immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote in the township or precinct where he may reside, if he shall have been duly registered according to law.” 2. That the constitution of the state of Indiana be amended as follows: ‘“ By striking out the words, * No negro or mulatto shall have the right of suffrage,’ contained in Sect. 5 of the second article of the constitution.” Strike the word “ white” from sects. 4 and 5 of art. 4.1] Iowa. § 220. Every [white?] male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law. — Art. 2, Sect. 1, Constitution 1857.2 1 That a freeman of color, born within the United States, is a citizen of the United States. — 26, p. 299. The law presumes all persons who reside here to be citizens of the United States, until the contrary appears. — 6 Blackford, Indiana, 488. The declaration of an alien of his intention to become a citizen of the United States is not objectionable because the name of the sovereign, allegiance to whom he particularly renounces, is not stated. 8 Blackford, Indiana, 395. Citizen defined, 48 Ind. p. 327; 36 Ind. p. 267. 2 Stricken out in 1868. 8 Removal from the county, and residence under another government for a A TREATISE ON CITIZENSHIP. 269 KANSAS. § 221. Every white male person, of the age of twenty-one years and upwards, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector: First, citizens of the United States ; Second, persons of foreign birth, who shall have de- clared their intention to become citizens conformably to the laws of the United States on the subject of naturalization. — Art. 5, Sect. 1, Constitution 1859.1 KENTUCKY. § 222. Every white male citizen of the age of twenty-one years, who has resided in the state two years, or in the county, town, or city in which he offers to vote one year, next pre- ceding the election, shall be a voter; but such voter shall have been, for sixty days next preceding the election, a resident of period of years, does not deprive one of his citizenship in this country. — 45, p. 99. (See also 30 Maine, 511; 26 Wend. 612; 3 Peters, 99.) Involuntary military service in a foreign army by a citizen of this country, and the acceptance of a bounty therefor, does not have the effect to deprive him of his citizenship here. Id. The citizenship of the child is determined by that of the father ; and, though the latter reside in another country, the child will be a citizen of this, if the father has not forfeited or surrendered his allegiance thereto. — 45, 99. Land of a non-resident alien descends to his children who are citizens of the United States to the exclusion of non-resident alien children. 53 Iowa, p. 97. 1 The right of suffrage is not the test of citizenship. — 1, p. 313. A white male person, of twenty-one years or upwards, being a citizen of the United States, or having declared his intention to become such, as required by law, who has resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days preced- ing such election, is a legal voter in Kansas (art. 5, sect. 1, State Constitu- tion), notwithstanding he may be an officer or soldier in the army of the United States; but a person shall not be deemed to have gained a residence for the purpose of voting by reason of his presence in the state, while employed in the service of the United States. (Amendment to art. 5, sect. 3, Const. L. 764, 81.) (1868) 4 Kansas, 549. 270 A TREATISE ON CITIZENSHIP. the precinct in which he offers to vote, and he shall vote in said precinct, and not elsewhere. — Art. 2, Sect. 8, Constitu- tion 1850. ? LovIsIANA. § 223. Every male citizen of the United States, and every male person of foreign birth who has been naturalized, or who may have legally declared his intention to become a citizen of the United States before he offers to vote, who is twenty-one years old or upwards, possessing the following qualifications, shall be an elector and shall be entitled to vote at any elec- tion by the people, except as hereinafter provided : — First. He shall be an actual resident of the state at least one year preceding the election at which he offers to vote. Second. He shall be an actual resident in the parish in which he offers to vote at least six months next preceding the election. Third. He shall be an actual resident in the ward or pre- cinct in which he offers to vote at least thirty days next preceding the election. — Art. 185, Constitution of 1879. 1 Corporations are not regarded as citizens except for the assertion of rights lawfully acquired, and suing in the federal courts. —12 B. Monroe, 218. The citizens of every municipality owe public duties to the corporate bod- ics of which they are members, many of which are to be performed without compensation. —15 B. Monroe, 257. Though a citizen may expatriate himself with the consent of his state, ex- pressed or implied, no act of legislation can denationalize a citizen without his concurrence. — 10 Bush, 760. A person may be a citizen of a state, although a non-resident. — 6 J. J. Marshall, 257. No one is a citizen who is not entitled, upon the terms prescribed by the institutions of the state to all the rights and privileges conferred by those in- stitutions on the highest class of society. Though females and infants do not personally possess those rights and privileges, they partake of the quality or those adult males who belong to the same class and condition in society, and will or will not be citizens, as those adult males are or are not so.—1 Lit- tell’s Selected Cases, p. 333. 2A free person of color, in 1844, was a citizen of the United States.—25 Louisiana Annual Reports, p. 189. A citizen, in the largest sense, is any uative [born] or naturalized person, A TREATISE ON CITIZENSHIP. 271 MAINE. § 224. Every male citizen of the United States, of the age of twenty-one years and upwards, excepting paupers, persons under guardianship, and Indians not taxed, having his resi- dence established in this state for the term of three months next preceding any election, shall be an elector for governor, senators, and representatives, in the town or plantation where his residence is so established, and the elections shall be by written ballot. But persons in the military, naval, or marine service of the United States, or this state, shall not be con- sidered as having obtained such established residence by being stationed in any garrison, barrack, or military place, in any town or plantation; nor shall the residence of any student at any seminary of learning entitle him to the right of suffrage in the town or plantation where such seminary is established. — Art. 2, Sect. 1, Constitution 1820.1 who is entitled to full protection in the exercise and enjoyment of the so-called private rights. bd. id. As to residents of Louisiana before cession to United States, Re Harold, 2 Penn. Law Jour. 119. As to status of inhabitants of Louisiana, subsequent to the treaty between France and the United States (30th -April, 1803), see Paschal’s Annotated Constitution of the United States, p. 223. 1 The rights of citizenship are not lost by desertion from the U. S. service unless the deserter is also convicted by a court-martial. 59, p. 464. By virtue of the act of Feb. 10, 1855, chap. 71, although a person was born out of the jurisdiction of the United States, he is a citizen thereof, if at the time of his birth his father was a citizen of the United States. 58, 353. Free colored persons of African descent, Held, to be entitled to the rights of citizenship, and authorized under the constitution of this state to be electors for governor, senators, and representatives. Opinions of Justices, 44 Me. 506, 595. The terms ‘‘citizen” and “citizenship” considered and defined. Id. A residence of the father within the United States, and an adherence to its government from the commencement of the Revolutionary War until the definite treaty of peace in 1783, conferred all the rights of citizenship both upon him- self and upon his minor child residing in his family. 30, p. 511. By the common law, allegiance is not a matter of individual choice. It 272 A TREATISE ON CITIZENSHIP. MARYLAND. § 225. All elections shall be by ballot, and every white male citizen of the United States, of the age of twenty-one years or upward, who has been a resident of the state for one year, and of the legislative district of Baltimore City, or of the county in which he may offer to vote, for six months next preceding the election, shall be entitled to vote in the ward or election district in which he resides, at all elections here- after to be held in this state; and, in case any county or city shall be so divided as to form portions of different electoral dis- tricts for the election of representatives in Congress, senators, delegates, or other officers, then to entitle a person to vote for such officer, he must have been a resident of that part of the town or city which shall form a part of the electoral dis- trict in which he offers to vote for six months next preceding the election; but a person who shall have acquired a resi- dence in such county or city, entitling him to vote at any such election, shall be entitled to vote in the election-district attaches at the time and on account of birth, under circumstances in which the family owes allegiance and is entitled to protection. Jd. Although the child whose citizenship is thus established may have removed immediately after coming of age to act for himself, into a British province, and adhered to its government, he is, on his return to the United States, entitled to the rights of citizenship. Id. The treaty concluded at Washington, Aug. 6, 1842, confers the elective franchise on the subjects of the Queen of Great Britain, residing on the dis- puted territory in the northeastern portion of the state, at the time of the treaty, and not otherwise naturalized. Opinions of Justices, 68 Me. 589. A debtor, temporarily within the state, is not excluded from the benefits of the statutes of this state exempting certain property from attachment. 46, p. 357. When a person has forfeited his rights of citizenship under the Act of Con- gress of March 2, 1865, chap. 79, sect. 21, he loses his right of suffrage only when this right, under the constitution of the state to which he belongs, is re- stricted to citizens of the United States. 57, p. 148. Under the said act, a citizen of this state can be deprived of the right of suffrage, or any right of citizenship, only after trial, conviction, and sentence of a court-martial. Jd. Sce also 58, p. 353. A TREATISE ON CITIZENSHIP. 273 from which he removed until he shall have acquired a res- idence in the part of the county or city to which he has removed, — Art. 1, Sect. 1, Constitution 1867.1 * The proviso of the fourth section of this Act of Congress of 1802, chap. 28, is not prospective, but applies only to persons who were citizens at the time of its passage, and denies citizenship to the children of persons born abroad, un- less their fathers, who may have been born abroad, had resided in this country. 9, p. 74. Under this act children of naturalized persons are citizens, if under twenty- one years, and dwelling in the country at the time of the naturalization of the parents, and this applies to the children of a widow who has been naturalized. Id. : A plaintiff residing in Maryland, after institution of suit, sold out his farm- ing utensils and furniture, went to Virginia, and for three or four years prior to the trial of his case was stationed there as an itinerant preacher by the con- ference of the religious society to which he belonged. This conference had power to assign him to any place they saw fit within their limits, which in- cluded part of Virginia and part of Maryland. He said he lived in Virginia, and had been living there three or four years, having occasionally visited his children whom he left in Maryland. There was no proof of any declaration, either at the time of leaving or since, of an intention to retain a residence in Maryland, or to resume it at any future time. Held, That this plaintiff was within the provisions of the ninth section of the Act of 180], chap. 74, in regard to a removal out of the state after the institution of a suit; and may be required to give security for costs. 9, p. 194. A temporary or transient residence bya citizen of another state in a county of this state, where his personal property is, at the time, situated is such a residence as amounts to a compliance with the provisions of the Act of 1856, chap. 154, requiring bills of sale or mortgages to be recorded and acknowledged in the county where the party executing the same resides. 13, p. 392. The meaning of the word “citizen”’ in the Act of 1795, chap. 56, is synony- mous with “inhabitant or permanent resident”; all such are alike entitled to the most enlarged remedial process and protection from summary proceedings, equally with natives or adopted citizens, enjoying the elective franchise and right of purchasing and holding real estate. This construction does not con- flict with the provisions of the Act of 1715, chap. 40, but gives a cumulative , remedy, adapted to the exigencies of trade and commerce, which would other- wise be much embarrassed by the delays of the law. Id. The question of citizenship, in the purview of the Acts, is a mixed question of law and fact, to be found by the jury, under the direction of the court. 19, . 82. 3 The Act of 1802, chap. 28, does not exclude females from the rights of citi- zenship by naturalization. 9, 74. 274 A TREATISE ON CITIZENSHIP. MASSACHUSETTS. § 226. Every male citizen of twenty-one years of age and upwards (except paupers and persons under guardianship), who shall have resided within the commonwealth one year, and within the town or district in which he may claim a right to vote six calendar months next preceding any election of governor, lieutenant-governor, senators, or representatives, and who shall have paid, by himself or his parent, master, or guardian, any state or county tax which shall, within two years next preceding such election, have been assessed upon him in any town or district of this commonwealth, and also every male citizen who shall be by law exempted from taxa- tion, and who shall be in all other respects qualified as above mentioned, shall have a right to vote in such election of gov- ernor, lieutenant-governor, senators, and representatives, and no other person shall be entitled to vote in such election. — Art. 3, Amendments to the Constitution of 1780, ratified 1822. No person of foreign birth shall be entitled to vote, or shall be eligible to office, unless he shall have resided within the jurisdiction of the United States for two years subsequent to his naturalization, and shall be otherwise qualified, according to the constitution and laws of this commonwealth: Provided, that this amendment shall not affect the rights which any person of foreign birth possessed at the time of the adoption thereof; and provided further, that it shall not affect the rights of any child of a citizen of the United States, born dur- ing the temporary absence of the parent therefrom. — Art. 26, Amendments to the Constitution of 1780, ratified 1863.1 * An alien is subject to taxation as a citizen but acquires no political rights thereby. 7 Mass. p. 523. An alien becomes jointly seized of real estate conveyed to his wife in her right, subject to escheat at the suit of the government. 13 Pickering, Dp. 523. An alien husband cannot be tenant by the curtesy. 20 Pickering, p. 121. Nor can the wife have the right of dower. 9 Mass. p. 363. An alien can take by purchase or devise, and hold any real estate so A TREATISE ON CITIZENSHIP. 275 MICHIGAN. § 227. In all elections, every white male citizen, every white male inhabitant residing in the state on the twenty-fourth day of June, one thousand eight hundred and thirty-five; every white male inhabitant residing in this state on the first day of January, one thousand eight hundred and fifty, who has declared his intention to ‘become a citizen of the United States, pursuant to the laws thereof six months preceding an election, or who has resided in this state two years and six months, and declared his intention as aforesaid; and every civilized male inhabitant of Indian descent, a native of the United States and hot a member of any tribe, shall be an elector and entitled to vote; but no citizen or inhabitant shall be an elector, or entitled to vote at any election, unless he shall be above the age of twenty-one years, and has re- sided in this state three months, and in the township or ward in which he offers to vote ten days next preceding such elec- tion. — Art. 7, Sect. 1, Constitution 1850. MINNESOTA, § 228. Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the United States one year, and in this state four months next preceding any election, shall be enti- tled to vote at such election, in the election district of which he shall at the time have been for ten days a resident, for acquired until office found. 1 Mass. p. 257; 12 Mass. p. 148; 13 Pickering, . 522. , Under the Revised Statutes, chap. 119, sect. 12, he may by possession sufficiently long acquire an indefeasible title even against the Commonweath. 9 Metcalf, p. 154. But on the death of an alien, intestate, his real estate vests in the Common- wealth immediately, without office found. 15 Pickering, p. 845; 16 Picker- ing, p. 177. If an alien derives his title from the Commonwealth by deed of warranty, it will descend to his heirs though aliens, and is not liable to escheat: 3 Pick- ering, p. 224. 276 A TREATISE ON CITIZENSHIP. all officers that now, or hereafter may be, elective by the people :— First. — Citizens of the United States. Second. — Persons of foreign birth, who shall have declared. their intention to become citizens, conformably to the laws of the United States upon the subject of naturalization. Third. — Persons of mixed white and Indian blood, who have adopted the customs and habits of civilization. Fourth. — Persons of Indian blood residing in this state, who have adopted the language, customs, and habits of civili- zation, after an examination before any district court of the state, in such a manner as may be provided by law, and shall have been pronounced by said court capable of enjoying the rights of citizenship within the state. — Art. 7, Sect. 1, Con- stitution of 1857, as amended in 1868.1 MISSISSIPPI. § 229. All persons resident in this state, citizens of the United States, are hereby declared to be citizens of the state of Mississippi. — Art. 1, Sect. 1, Constitution of 1868.2 MIssouRi. § 230. Every male citizen of the United States, and every’ male person of foreign birth, who may have declared his inten- 1 Where the father becomes a naturalized citizen during the minority of his children resident with him in this country, the latter need not, upon coming of age, take out naturalization papers, to entitle them to the privileges of citi- zensbip. 26 Minn. p. 183. . 2 That persons of African descent are not citizens. 8 George’s Reports, p. 209, and Id, 235. Proof that a free white person has been residing in the state and keeping a boarding-house for twelve months is sufficient to show that he is a citizen. of the state, in the absence of all proof that he was a mere sojourner or transient person (9 George’s Reports, p. 198) ; and if it appear that a party to a suit married in this state, kept a boarding-house, and hired slaves, it is sufficient to show, in the absence of contrary proof, that he is a free white person and a citizen. A TREATISE ON CITIZENSHIP. 277 tion to become a citizen of the United States according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, pos- sessing the following qualifications, shall be entitled to vote at all elections by the people : — First. — He shall have resided in the state one year imme- diately preceding the election at which he shall offer to vote. Second. — He shall have resided in the county, city, or town where he shall offer to vote at least sixty days immedi- ately preceding the election. — Art. 8, Sect. 2, Constitution of 1875. NEBRASKA. § 231. Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector : — First. — Citizens of the United States. Second. — Persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election. — Art. 7, Sect. 1, Constitu- tion of 1875. NEVADA. § 232. Every white male citizen of the United States (not laboring under the disabilities named in this constitution) of the age of twenty-one years and upwards, who shall have ac- tually and not constructively resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers who are now, or hereafter may be, elected by the people, and upon all ques- tions submitted to the electors at such election; provided, That no person who has been or may be convicted of treason or felony in any state or territory of the United States, unless 278 A TREATISE ON CITIZENSHIP. restored to civil rights, and no person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States, or either of them, unless an amnesty be granted to such by the Federal Government, and no idiot or insane person, shall be entitled to the privilege of an elector. — Art. 2, Sect. 1, Constitution of 1864. New HAMPSHIRE. : § 283. The Senate shall be the first branch of the Legisla- ture, and the senators shall be chosen in the following man- ner, viz.: Every male inhabitant of each town and parish with town privileges, and places unincorporated in this state, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request, shall have a right, at the annual or other meeting of the inhabitants of said towns and parishes, to be duly warned and holden an- nually forever in the month of March, to vote in the town or parish wherein he dwells, for the senator in the district whereof he is a member. — Part II, Sect. 28, Constitution of 1792.1 NEw JERSEY. § 234. Every [white ?] male citizen of the United States, of the age of twenty-one years, who shall have been a resident of 1 Jt is not necessary, in a petition for naturalization, under the act of April 14, 1802, for the applicant to allege or prove that he has resided within the state or territory where the application is made during the year next preceding his application. But he must show, to the satisfaction of the court, that during the whole period of residence required by law, it has dona side been his inten. tion to become a citizen of the United States. Cummings’s Petition, 41, 270. The states may prohibit their courts from naturalizing aliens. Stephens’s case, 4 Gray, 559; Beavin’s case, 33, 89. An individual whose father appears to have been a resident in this country, and to have married and had children born here, is presumed to be a citizen, although he himself was born subsequently to his father’s removal to a foreign country, there being nothing else to show his father to have been an alien. — 12, 362. 2 The word “ white” stricken out by amendment of 1875. A TREATISE ON CITIZENSHIP. 279 this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are, or hereafter may be, elective by the people. Provided, That no person in the military, naval, or marine service of the United States shall be consid- ered a resident in this state, by being stationed in any garri- son, barrack, or military or naval place or station within this state; and no pauper, idiot, insane person, or person con- victed of a crime which now excludes him from being a wit- ness, unless pardoned or restored by law to the right of suffrage, shall enjoy the right of an elector. — Art. 2, Sect. 1, Constitution of 1844. New YorRK. § 235. Every male citizen of the age of twenty-one years who shall have been a citizen ten days and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election-district in which he may offer his vote, shall be entitled to vote at such election in the election-district of which he shall at the time be a resident, and not elsewhere, for all officers that now are, or hereafter may be, elective by the people, and upon all questions that may be submitted to the vote of the people: Provided, That in time of war no elector in the actual military service of the United States, in the army or navy thereof, shall be deprived of his vote by reason of his absence from such elec- tion district, and the legislature shall have the power to pro- vide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respect- ively reside. — Art. 2, Sect. 1, of Constitution of 1846, as amended in 1874." 1 Native-born citizens, and their rights and responsibilities as such: 17 Johnson, p. 511; 19 Johnson, p. 205; 6 Cowen, p. 404; 2 Wendell, p. 64; 3 Johnson’s Chancery, p. 587; 1 Paige, p. 183; 31 Barbour, p. 486. 280 A TREATISE ON CITIZENSHIP, Norta CAROLINA. § 236. Every male person born in the United States, and every.male person who has been naturalized, twenty-one years Children of aliens — when citizens: 21 Wendell, p. 389; 26 Wendell, p. 613; 8 Paige, p. 433; 26 Barbour, p. 383; 31 Barbour, p. 486; 26 N. Y. Rep. p. 356; 22 Howard’s Practice, p. 99. The power to confer naturalization: 3 Parker’s Criminal, p. 358; 18 Barbour, p. 444; 10 Howard’s Practice, p. 246; 1 Abbott’s Practice, p. 90. Qualifications for naturalization, and application therefor: 16 Wendell, p. 617; 20 Wendell, p. 338; 7 Hill, p. 56; Id. p. 1387; 3 Barbour’s Chancery, p. 438; 7 Robertson, p. 635; 1 Daly, p. 531; Jd, p. 534; 2 Daly, p. 525; 18 Barbour, p. 444. Effect of naturalization— when retroactive : 1 Johnson’s Cases, p. 399; 1 Cowen, p. 89; 5 Cowen, p. 713; 7 Wendell, p. 883; 13 Wendell, p. 524; 2 Hill, p. 67; 3 Barbour’s Chancery, p. 438; 33 Barbour, p. 360; 4 Lansing, p- 440; 5 N. Y. p. 263; 39 N. Y. p. 338. Evidence of citizenship or naturalization: 2 Hill, p. 320; 51 Barbour, p. 589; 53 Barbour, p. 472; 41 N.Y. p. 397; 3 Abbott’s Practice, N. 8. p. 453. The right of expatriation: 2 Johnson’s Cases, p. 407; 20 Johnson, p. 188. In proceedings instituted for naturalizing an alien, his residence cannot be established by affidavit, but must be proved in court by the testimony of wit- nesses. Nor are affidavits admissible to establish the alien’s good moral char- acter, or his attachment to the principles of our government ; though on these points his oath is admissible. But it seems that the oath of the alien should be corroborated by other evidence. Anon. 7 Hill, 137. The powers conferred upon the courts to naturalize foreigners are judicial, and not ministerial or clerical, and therefore must be exercised by the court and not by the clerks, and require an examination into each case sufficient to satisfy the court of the following facts: 1. Five years’ continuous residence of the applicant within the United States, and one year of like residence within the state or territory where the court to which: the application is made is held. 2. That the applicant during the five years has conducted himself as a person of good moral character. 38. That the applicant is in principle attached to and well disposed toward the Constitution of the United States. The prac- tice of the clerk of the court to receive and pass upon all applications for naturalization, and grant certificates without consulting the court, is forbidden. Re Clark, 18 Barb. 444. An act of Congress (3 March, 1865, sect. 21), providing that, in addition to other penalties for desertion from the military or naval service of the United States, there shall also be a forfeiture of the rights of citizenship is constitu- tional. Itis not an ex post facto law; neither is it a bill of attainder, for the reason that it contemplates a trial by a court-martial to enforce this penalty, .A TREATISE ON CITIZENSHIP. 281 old or upward, who shall have resided in the state twelve months next preceding the election, and ninety days in the together with the other penalties for desertion. 58 Barb. 152; 40 How. Pr. 97. Sees. c. 61, 420. Satisfactory proofs by a person applying to be naturalized, that he is of good moral character, that he has resided one year within the United States previ- ous to the application, and that he is of the age of twenty-one years and up- wards, that he was regularly enlisted in the United States navy, where he served as an enlisted man, and that he was honorably discharged from service, entitle him to natitralization, under the provisions of sect. 21 of the act of July 17, 1862. The provisions of the act embrace the army as well as the navy. Le Stewart, 7 Rob. (N. Y.) 635. Where it is clearly inferable from a record of naturalization that the alien had not, at least three years previous to the date thereof, declared, on oath, his intention to become a citizen of the United States, and to renounce all allegiance, etc., as required by the act of 1802, but that the court has mistaken the registry of the arrival of the alien in the United States for such declaration of intention, i¢ seems that the naturalization is invalid. But if regular on its face, it is conclusive. 3 Barb. Ch. 438. It is provided by sect. 2165 of the Revised Statutes that an alien may be admitted to be a citizen of the United States by “a court of record of any of the states, having common-law jurisdiction and a seal and clerk.” A city court, which is a court of record and has a seal and clerk, and has conferred. upon it, by a statute of New York, all the power and jurisdiction of justices of the peace, and all jurisdiction and power, within the city, of the Marine Court in the city of New York, and whose judge is clothed with all the powers of a county judge and of a judge of the Supreme Court of the state at chambers, and which has civil jurisdiction in all actions for the recovery of money, when the amount recovered does not exceed $1,000, is a court having common-law jurisdiction, within the meaning of said sect. 2165. New York, 14 Blatch. 223. An alien who arrived in this country since the act of March 3, 1813, applied to become a citizen, and it appeared that, during the five years next preceding his application, he had been in Upper Canada, though for a few minutes only, and without any intention of changing his residence: Held, that he was not entitled to be naturalized. Zz parte Paul, 7 Hill, 56. Sce Ze parte Hawley, 1 Daly, 531. A child born in the United States, of alien parents, during its mother’s temporary sojourn, is a native-born citizen. 26 Barb. 383. A mariner of foreign birth, who, for five years previous to his application for citizenship, has been continuously and exclusively employed in American vessels, and for the last year of that term has shipped only in vessels belong- ing to the port of New York, is deemed a resident of the United States during the five years, and of New York for one year, unless it is shown that he has 282 A TREATISE ON CITIZENSHIP. county in which he offers to vote, shall be deemed an elector ; but no person, who, upon conviction or confession in open maintained his previous residence. Re Bye, 2 Daly, 525. See Lx parie Scott, 1 Jb. 534. An alien feme covert may be naturalized without the concurrence of her husband. 16 Wend. 617. Naturalization relates back, and confirms the title to land purchased during alienage. 1 Cow. 89. But it does not retrospectively confirm a title claimed by descent. 39, 333. State courts, in admitting aliens to citizenship under the naturalization laws, act as United States courts. The act of admission is in the nature of a judgment, of which the preliminary proofs, judge’s a//ocatur, and oath of alle- giance, duly filed, are the record. Entry in a book is not necessary; and the omission to enter, or defect in entering the admission in the minute-book, may be cured mune pro tunc. Re Christern, 43 (Superior Ct.), 523. Acts of Congress prescribing naturalization proceedings, reserved and ex- plained at length, with special reference to whether voting on a certificate of naturalization, which was completely and duly made, but was defectively re- corded, constitutes an unlawful and punishable use of the certificate. Td. March 18, 1807, Charles Anton Bollerman was born at Mainz in the Grand Duchy of Hesse, of parents who were residents and subjects thereof. In Feb- ruary, 1843, his parents were married at that place, m accordance with the provisions of the laws there existing, and there signed and executed a certifi- cate declaring “that they had already engendered together the following chil- dren,” naming them, “which children they hereby duly acknowledged and legitimated.” By the laws of the said Grand Duchy, children so legitimated enjoy the same rights as if they were born in wedlock. There was no proof of any actual former marriage between the parties, nor was any evidence given to show whether the parents had lived together as husband and wife, or were reputed to be married, or that the children had been baptized, or had been regarded as legitimate by their parents or by strangers. In an action of ejectment involving the title to real estate in this State, of which Charles Anton Bollerman, who was at the time of his death a citizen thereof, died seised, — Held, that the question whether or not Bollerman was legitimate or illegiti- mate was to be determined by the laws of this State. That the term illegiti- mate, as used in the statute of descents of this State, means a child begotten and born out of wedlock. That the circumstances proved in this case were not only insufficient to authorize the inference of a marriage of Bollerman’s parents prior to his birth, but disproved the existence of any such prior mar- riage. That Bollerman was illegitimate, and that the real estate descended to his relatives on the part of his mother. Bollerman died May 18, 1866, leaving as his heirs-at-law two brothers and a sister, all non-resident aliens. In 1845 a convention was made between A TREATISE ON CITIZENSHIP. 283 court, shall be adjudged guilty of felony, or of any other crime infamous by the laws of this state, and hereafter committed, shall be deemed an elector, unless such person shall be re- stored to the rights of citizenship in a manner prescribed by law. — Art. 6, Sect. 1, amended Constitution of 1876. OHIO. § 237. Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides such time as may be the United States of America and the Grand Duchy of Hesse, “for the mu- tual abolition of the droit d’aubaine and taxes on emigrants.” By art. 1 thereof, every kind of droit d’aubaine was abolished, and art. 2 pro- vided that where a citizen of either country would be entitled to inherit real estate, were he not disqualified by alienage, he should be allowed two years to sell the same and withdraw the proceeds thereof without molestation. In April, 1868, the legislature, by ch. 433, of 1868, released all the estate and interest of the State of New York in the real estate in question to Bollerman’s heirs-at- law. In November, 1868, the alien heirs-at-law conveyed the land to defendant. Held, that under the convention made in 1845, the real estate vested upon Bollerman’s death, in his alien heirs-at-law, subject to be divested, upon their failure to sell the same within two years; that the passage of the act of 1868 removed this condition and vested the estate absolutely in them. Bollerman v. Blake, 31 Supreme Court (24 Hun), p. 188. When an alien female intermarries with a citizen, by virtue of the marriage she becomes a citizen and capable of taking and holding lands in this state by purchase or descent. 80 New York (Court of Appeals), p. 171. The words “resident alien” in the provision of the act of 1845, “to enable resident aliens to take and hold real estate” which enables those answering the description of heirs of a deceased alien resident to take, whether they are citi- zens or aliens, do not include or designate a naturalized citizen. Id. So, also, the alien children of a deceased brother or sister of the intestate, who was an alien, are not within the provisions of the statute (1 Rev. Stats. 754, sect. 22) which saves a person “capable of inheriting” from being barred of the inheritance by reason of the alienage of any ancestor. Id. The incapacity, therefore, of alien heirs of a naturalized citizen, who died intestate, to take lands of which he died seised, was not removed by the act of 1845. Id. 1 That is, after Jan. 1, 1877. For judicial determination of citizenship, see The State v. Manuel, 4 Dev. & Bat. 20. Opinion by Gaston, J. 284 A TREATISE ON CITIZENSHIP. provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections. — Art. 5, Sect. 1, Con- stitution of 1851.1 OREGON. § 238. In all elections not otherwise provided for by this constitution, every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately pre- ceding such election, and every white male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections au- thorized by law. — Art. 2, Sect. 2, Constitution of 1857. PENNSYLVANIA. 239. Every male citizen twenty-one years of age, possess- ing the following qualifications, shall be entitled to vote at all elections : — First. — He shall have been a citizen of the United States at least one month. Second. — He shall have resided in the state one year (or if, having previously been a qualified elector or native-born citizen of the state, he shall have removed therefrom and re- turned, then six months) immediately preceding the elec- tion. 1 The legislature has no power, directly or indirectly, to abridge the con- stitutional rights of citizens to vote, or unnecessarily to. impede its exercise ; and laws passed professedly to regulate its exercise, or prevent its abuse, must be reasonable, uniform, and impartial. The act of April 16, 1868, 65 O. L. 97, is unconstitutional, null, and void. 17 Ohio Rep. p. 665. “Citizen” and “resident” defined. 11 Ohio Rep, p. 27. A TREATISE ON CITIZENSHIP, 285 Third.— He shall have resided in the election district where he shall offer to vote at least six months immediately preceding the election. Fourth. —If twenty-two years of age or upwards, he shall have paid within two years a state or county tax, which shall have been assessed at least two months, and paid at least one month before the election. — Art. 8, Sect. 1, Constitution of 1873.1 RHODE ISLAND. § 240. Every male citizen of the United States, of the age of twenty-one years, who has had his residence or home in this state for one year, and in the town or city in which he may claim a right to vote six months, next preceding the time of voting, and who is really and truly possessed in his own right of real estate in such town or city of the value of one hundred and thirty-four dollars, over and above all incumbrances, or which shall rent for seven dollars per annum, over and above any rent reserved on the interest of any incumbrances thereon, being an estate of fee-simple fee-tail for the life of any per- son, or an estate in reversion or remainder, which qualifies no other person to vote, the conveyance of such estate, if by deed, shall have been recorded at least ninety days, shall hereafter have a right to vote at the election of all civil offi- cers, and on all questions, in all legal town or ward meetings, 1 A rule to vacate a decree of naturalization will not be granted at the in- stance of a private citizen in the courts of Pennsylvania. The attorney-gen- eral must be a party. State v. Paper, 1 Brews. 263. The seal of the court is conclusive as to the naturalization, unless the cer- tificate has been obtained by falsehood or fraud. Jd.; also; 2 26. 180. One who has been improperly naturalized may surrender his certificate and present a new petition. State v. Paper, 1 Brews. 263. An alien cannot vouch for a person petitioning to be naturalized. State o. Paper, 1 Brews. 263. - But one citizen can vouch for a number of petitioners. 1d. A certificate of naturalization establishes a prima facie right to vote; the election officers cannot go behind it. Commonwealth ». Lee, 1 Brews. 273; Commonwealth v. Sheriff, 1 Brews. 183. 286 A TREATISE ON CITIZENSHIP. so long as he continues so qualified. And if any person here- inbefore described shall own any such estate within this state out of the town or city in which he resides, he shall have a right to vote in the election of all general officers and mem- bers of the General Assembly, in the town or city in which he shall have had his residence and home for the term of six months next preceding the election, upon producing a certifi- cate from the clerk of the town or city in which his estate lies, bearing date within ten days of the time of his voting, setting forth that such person has a sufficient estate therein to qualify him as a voter, and that the deed, if any, has been recorded ninety days. — Art. 2, Sect. 1, Constitution of 1842. SouTtH CAROLINA. § 241. Every male citizen of the United States, of the age of twenty-one years and upwards, not laboring under the disa- bilities named in this constitution, without distinction of race, color, or former condition, who shall be a resident of this state at the time of the adoption of this constitution, or thereafter shall reside in this state one year, and in the county in which he offers to vote sixty days next preceding any election, shall be entitled to vote for all officers who now are, or hereafter may be, elected by the people, and upon all questions submit- ted to the electors at any elections; provided, That no person shall be allowed to vote or hold office who is now or hereaf- ter may be disqualified therefor by the Constitution of the United States, until such qualification shall be removed by the Congress of the United States ; provided, further, that no person, while kept in any almshouse or asylum, or of unsound mind, or confined in any public prison, shall be allowed to vote or hold office. — Art. 8, Sect. 2, Constitution of 1868. 1 1 Where a father has been a citizen of the United States, his son is entitled to the privileges of citizenship, though born without the limits of the United States. —1 Nott & M. 292. Otherwise where the mother is a citizen, and the father an alien. Id. Under the acts of Congress, children born abroad, not only of citizens by A TREATISE ON CITIZENSHIP. 287 TENNESSEE. § 242. Every male person, of the age of twenty-one years, being a citizen of the United States, and a resident of this state for twelve months, and of the county!wherein he may offer his vote for six months next preceding the day of election, shall be entitled to vote for members of the General Assem- bly, and other civil officers for the county or district in which he resides ; and there shall be no qualification attached to the right of suffrage except that each voter shall give to the judges of election, where he offers to vote, satisfactory evi- dence that he has paid the poll taxes assessed against him for such preceding period as the legislature shall prescribe, and at such time as may be prescribed by law, without which his vote cannot be received ; and all male citizens of the state shall be subject to the payment of poll taxes, and the performance of military duty within such ages as may be prescribed by law. The General Assembly shall have power to enact laws requir- ing voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot-box.— Art. 4, Sect. 1, Constitution of 1870. birth, but also naturalized citizens, are citizens of the United States. 10 Rich. Eq. 38. When citizenship presumed. 10 Rich. Eq. 38. It was held, many years ago, that on a question of title the court may in- quire into the regularity of an alien’s proceeding in obtaining a certificate of citizenship. Vaux v. Nesbitt, 1 McCord, Ch. 370. Norz.— But this is at variance, and inconsistent with all the authorities (Federal and state), and this position has long been abandoned. Proof that a foreigner resided in this state at least as early as 1778, and that he exercised the privileges and was reputed to be a citizen until his death in 1823, eld, sufficient to raise the presumption that he had complied with the law in relation to naturalization which existed prior to 1790, and had become a citizen. Sasportas v. De La Motta, 10 Rich. 38. 1 Under sec. 1, art. 4, Const. 1834, by “citizen of the county” is meant one who is a member of the body politic by naturalization or birth, and not simply an inhabitant. 5 Sneed, 482. 288 A TREATISE ON CITIZENSHIP. TEXAS. § 243, The following classes of persons shall not be allowed to vote in this state : — First. — Persons under twenty-one years of age. Second. — Idiots and lunatics. Third. — All paupers supported by any county. Fourth. — All persons convicted of any felony, subject to such exceptions as the legislature may make. Fifth. — All soldiers, marines, and seamen, employed in the service of the army or navy of the United States. — Art. 6, Sect. 1, Constitution of 1876. Every male person subject to none of the foregoing dis- qualifications, who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, and who shall have resided in this state one year next preceding an election, and the last six months within the district or county in which he offers to vote, shall be deemed a qualified elector; and every male person of foreign birth, subject to none of the foregoing disqualifications, who, at any time be- fore an election, shall have declared his intention to become a citizen of the United States, in accordance with the federal naturalization laws, and shall have resided in this state one year next preceding such election, and the last six months in the county in which he offers to vote, shall be deemed a qual- ified elector, and all electors shall vote in the election precinct of their residence ; provided, That electors living in any un- organized county may vote at any election precinct in the county, to which such county is attached for judicial purposes. — Art. 6, Sect. 2, Constitution of 1876. VERMONT. § 244. Every man, of the full age of twenty-one years, having resided in this state for the space of one whole year, next before the election of representatives, who is of a quiet and peaceable behavior, and will take the following oath (or A TREATISE ON CITIZENSHIP. 289 affirmation), shall be entitled to all the privileges of a freeman of this state : — You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the state of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the constitution, without fear or favor of any man. — Chap. 2, Sect. 18, Constitution of 1786. No person, who is not already a freeman of this state, shall be entitled to exercise the privilege of a freeman, unless he be a natural-born citizen of this or some one of the United States, or until he shall have been naturalized agreeably to the acts of Congress. — Art. 1 of the Amendment of the Con- stitution of 17938, adopted 1828. VIRGINIA. § 245. Every male citizen of the United States, twenty-one years old, who shall have been a resident of this state twelve months, and of the county, city, or town in which he shall offer to vote three months next preceding any election, shall be entitled to vote upon all questions submitted to the people at such election; Provided, that no officer, soldier, seaman, or marine of the United States army or navy shall be consid- ered a resident of this state by reason of being stationed therein. And provided also, That the following persons shall be excluded from voting : — First. — Idiots and lunatics. Second. — Persons convicted of bribery in any election, embezzlement of public funds, treason, or felony. Third. — No person who, while a citizen of this state, has, since the adoption of this constitution, fought a duel with a deadly weapon, either within or beyond the boundaries of this state, or knowingly conveyed a challenge, or aided or assisted in any manner in fighting a duel, shall be allowed to. 290 A TREATISE ON CITIZENSHIP. vote or hold any office of honor, profit, or trust under this constitution. — Art. 8, Sect. 1, Constitution of 1870. WEST VIRGINIA. § 246. The male citizens of the state shall be entitled to vote at all elections held in the counties in which they re- spectively reside, but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of felony, or bribery in an election, or who has not been a resident of the state for one year, and of the county in which he offers to vote for sixty days next preceding such offer, shall be per- mitted to vote while such disability continues ; but no person in the military, naval, or marine service of the United States shall be deemed a resident of this state by reason of being stationed therein. — Art. 4, Sect. 1, Constitution of 1872. WISCONSIN. § 247. Every male person of the age of twenty-one years or upward, belonging to either of the following classes, who shall have resided in the state for one year next preceding any election, shall be deemed a qualified elector at such elec- tion : — First. — White citizens of the United States.! Second.— White persons of foreign birth who have de- clared their. intention to become citizens conformably to the laws of the United States on the subject of naturalization. Third. Persons of Indian blood, who have once been declared by law of Congress to be citizens of the United States, any subsequent law of Congress to the contrary not- withstanding. 1 By a decision of the Supreme Court, made during the year 1866 in the case of Gillespie v. Palmer, the right of suffrage was decided to have been extended to colored people by vote of the people at the general election held Nov. 6, 1849. A TREATISE ON CITIZENSHIP. 291 Fourth. — Civilized persons of Indian descent, not mem- bers of any tribe. Provided, that the legislature may, at any time, extend by law the right of suffrage to persons not herein enumerated; but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election. — Art. 3, Sect. 1, Constitution of 1848. No person under guardianship, non compos mentis, or. insane, shall be qualified to vote at any election, nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights. — Art. 3, Sect. 2, Constitution of 1848. 292 A TREATISE ON CITIZENSHIP. PART VIL § 248. UnprER the Revised Statutes, Sect. 2165, allowing naturalization [before “any court of any of the states having common-law jurisdiction and a seal and a clerk,” it is not necessary that the court should have full and complete com- mon-law jurisdiction. If a court may exercise any part of common-law jurisdiction, that is enough. To entitle an alien to naturalization he must show that he has behaved as a man of good moral character during all his residence in this country. Conviction of a crime since he came to this country to reside will bar his application, not- withstanding it occurred more than five years previous to the application.” A Chinaman is not entitled to become naturalized because not a white person.? § 249. The rights which a person has as a citizen of a state are those which pertain to him as a member of society, and which would belong to him if his state were not one of the United States. Over such rights the state has the usual rights belonging to government. The rights which a person has as a citizen of the United 18 Metcalf (Mass.), p. 168; 2 Curtis, p. 98; 50 N. H. p. 245; 389 Cal. p. 98; 3 Peters, pp. 433-446. The city court of Yonkers (N. Y.) can naturalize. 2 Circuit (N. Y.), 1877; 14 Blatchford, p. 223. ? 9 Circuit (Ore.), 1878; 18 Albany Law Journal, p.153; 6 Reporter, p. 294; 5 Sawyer, p. 195. * 9 Circuit (Cal.) ; 6 Central Law Journal, p. 387; 5 Sawyer, p. 155. * 4 Circuit (Va.) 1879; 3 Hughes, p. 9; 7 Reporter, p. 712. A TREATISE ON CITIZENSHIP. 293 States are such as he has by virtue of his State being a member of the Union, under the provisions of the Constitu- tion. But the privilege of marrying does not belong to this class of rights. The regulation of the marriage relation is not within the jurisdiction of the federal government. Id. That rights of citizenship, even since the Fourteenth Amendment, does not prevent a state from forbidding whites and blacks to intermarry, nor entitle a person convicted of violating such prohibition to the privilege of a federal habeas corpus. Id. The right of a citizen to vote depends upon the laws of the state in which he resides, and is not granted to him by the Constitution of the United States, nor is such right guaran- teed to him by that instrument. All that is guaranteed is that he shall not be deprived of suffrage by reason of his race, color, or previous condition of servitude. § 250. The Civil Rights Act of Congress of 1866 (14 Stat- utes at Large, p. 27) was intended to protect against legal disabilities and legal impediments, not against private in- fringements of rights arising through prejudice or otherwise, when the laws are impartial and sufficient. The Fourteenth Amendment, in guaranteeing equal benefit of the laws to all, only prohibits state legislation contrary to equal rights ; it does not deal with individual action. Thus a state jury law which authorizes appointment of jury com- missioners charged with the duty of selecting, impartially, good men to serve on juries, is not void because the commis- sioners may, and in fact do, select only white persons for jurors, and exclude negroes, although negroes arraigned. for trial are thereby prejudiced.? The Fourteenth Amendment does not prohibit the states 1 4 Circuit (S. C.), 1871; 1 Hughes, p. 448. 25 Circuit (La.), 1877; 5 Reporter, p. 201. 8 Jb, 1878; 17 Albany Law Journal, p. 111. 294 A TREATISE ON CITIZENSHIP. from passing laws to regulate the charges of warehousemen and persons in other vocations, as they have formerly been accustomed to do.! Under the principle that a government may regulate the conduct of its citizens towards each other, and, when neces- sary for the public good, the manner in which each shall use his own property, it has been customary in England from time immemorial, and in this country from its first coloniza- tion, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing, to fix a maximum charge to be made for services rendered, accommo- dations furnished, and articles sold. Jd. It has never been supposed that statutes regulating the use, or even the price of the use, of private property, neces- sarily deprived an owner of his property without due process of law. Rights of property, and to a reasonable compensa- tion for its use, created by the common law, cannot be taken away without due process of law; but the law itself, as a rule of conduct,.may, unless constitutional limitations forbid, be changed at the will of the legislature. The limitation by legislative enactment of the rate of charge for services ren- dered in a public employment, or for the use of property in which the public has an interest, establishes no new principle in the law, but only gives a new effect to an old one. Td. § 251. Special legislation, which imposes a degrading and cruel punishment upon a class of persons entitled to the equal protection of the laws, is unconstitutional and void.? An ordinance of San Francisco declared that every male person imprisoned in the county jail, etc., should have the hair of his head cut or clipped to the uniform length of one inch from the scalp, etc. The ordinance was enforced against 1 Supreme Court, 1876, 94 U. 8. (4 Otto), p. 113. 29 Circuit (Cal.), 1879; 20 Albany Law Journal, p. 250; 18 American Law Register, p. 676, N.S; 8 Reporter, p. 195; 13 Western Jurist, p 409; 25 Internal Revenue Record, p. 312; 5 Sawyer, p. 552. A TREATISE ON CITIZENSHIP. 295 the plaintiff, a Chinaman, the loss of whose queue is regarded as a disgrace by the Chinese, and, according to their religious faith, is attended with suffering after death. Held, that the ordinance was unconstitutional and void. Id. The ordinance being directed against the Chinese only, imposing upon them a degrading and cruel punishment, is also subject to the further objection that it is hostile and dis- criminating legislation against a class, forbidden by that clause of the Fourteenth Amendment to the Constitution, which declares that no state “shall deny to any person within its jurisdiction the equal protection of itslaws.” This inhibition upon the state applies to all the instrumentalities and agencies employed in the administration of its govern- ment; to its executive, legislative, and judicial departments, and to the subordinate legislative bodies of its counties and cities. Jd. The equality of protection thus assured to every one whilst within the United States implies not only that the courts of the country shall be open to him on the same terms as to all others for the security of his person or property, the preven- tion or redress of wrongs, and the enforcement of contracts, but that no charges or burdens shall be laid upon him which are not equally borne by others, and that in the ad- ministration of criminal justice he shall suffer for his offences no greater or different punishment. Jd. The legislation of Congress, carrying out the provisions of the Fourteenth Amendment in accordance with these views, reviewed and explained. — Id. The Virginia statute prohibiting intermarriage between the white and the negro citizens of the commonwealth is not in conflict with the Federal Constitution.! § 252. There is a limitation upon the power of Congress to fine and imprison contumacious witnesses 1 3 Hughes, p. 9. 2 Kilbourn v. Thompson, 103 U. 8. Sup. Ct. (13 Otto) p. 168. 296 A TREATISE ON CITIZENSHIP. The right to be secure in one’s house is not derived from the Constitution, having existed long before; and is not em- braced in the phrase, “right, etc., granted or secured by the Constitution” employed in the Civil Rights Act of Congress of May 31, 1870.1 4 A colored woman boarded a steamer as a passenger, and took her position on the upper deck aft, which place was assigned to the exclusive use of white passengers. One of the officers of the boat directed her to go to the lower deck, which afforded substantially the same accommodations as the upper, but was designed expressly for colored people. She declined to go, and tendered the customary fare, which was refused. She was informed that unless she would go below she would be ejected from the boat at the next landing-place, so she voluntarily left the boat at such landing-place. Held, that she had no cause of action for such exclusion.? The rights of colored persons to be received at and enter- tained in inns, and the liabilities and duties of innkeepers towards them, explained at length in a charge to the grand jury.® § 253. Receiving the preliminary application and oath of an alien to be naturalized is a ministerial, rather than a ju- dicial act, and may be done before a clerk of the court as well as the court itself. An alien enemy cannot be permitted to make the declara- tion required by law preparatory to the naturalization of aliens. See also an exhaustive discussion of The Power of Congress to punish Con- tempts and Breaches of Privileges, by Charles P. James, of the Washington Bar. This pamphlet was written and published some time prior to the decision of the Supreme Court in Kilbourn »v. Thompson. 1 16 Statutes at Large, p. 140; 4 Circuit (S. C.) 1871; 1 Hughes, p. 448. 2 5 Cireuit (Ga.), 1879; 9 Central Law Journal, p. 206. 8 | Hughes, p. 541. * Butterworth’s case, 1 Woodb. & M. 323. 5 Ex parte Newman, 2 Gall. 11. A TREATISE ON CITIZENSHIP. 207 The statute of the state of California, prohibiting all aliens incapable of becoming electors of the state from fishing in the waters of the state is in violation of the Fourteenth Amendment of the Constitution of the United States, and of the fifth and sixth articles of the treaty with China, and is void.! 1 In re Ah Chong ef al. v. United States, Circuit Court, District of Califor- nia, decided June 9, 1880; Pacific Coast Law Journal, June 12, 1880; also 2 Federal Reporter, p. 733. APPENDIX. The existing law of the United States in respect of citizenship has been digested by Desty, as follows :— A. ELIGIBILITY AND TiTLE To OFFICE IN THE UNITED STATES AND IN THE SEVERAL STATES OF THE UNION. Title to office depends on the fact of election, and not upon acts or omissions of officers. The person who denies the eligibility of a candidate must take the burden of proof.? The Legislature cannot add qualifications to those prescribed by the Constitution.* A person who is not an elector because of some disqual- ification, which he has the power to remove at any time, is not eligible to be elected. The disqualification does not relate to the election, but to the holding of the office.* So a minor, or a person who lacks the qualifications of residence, may be elected, and may enter on the duties of his office in case the disabilities as to age or residence are removed before the term of office commences, and such term com- mences when he enters upon its duties.® If the person elected has resided in the state for the time required, it is not essential that he shall have been a citizen during the whole of 1 State v. Wright, 10 Heisk. 237; Hartt v. Harvey, 32 Barb. 55. 2 Amer. Law of Elect. 162; Kentucky Election, 2 Bart. 329. 5 Page v. Hardin, 8 B. Mon. 661. See State v. Covington, 29 Ohio St. 109. 4 Paynter’s Pract. at Elect. 55; 1 Douglas, 143; 2 Id. 450; Hammond «. Herrick, Clarke & H. 297; Case of Harl, 1:7. 314; Case of Mumford, Zd. 316; State v. Murray, 28 Wis. 100; Cush. Law & Pr. of Legis. Assemb. sect. 76; Amer. Law of Elect. 192. 5 State v. Murray, 28 Wis. 100; Cush. Law & Pr. of Legis Assemb. sect. 78. APPENDIX. 299 that time. It is the person, the individual, the man, who is to pos- sess the qualifications at the time he is elected,! and he may qualify himself after election.? The statute providing for contesting elections should be liberally construed, to the end that the will of the people in the choice of public officers may not be defeated by any formal or technical objec- tions,’ the people being parties in interest.4 The fact that voters have notice of the ineligibility of the candidate at the time they cast their votes makes no difference.® No votes should be rejected simply on account of the ineligibility of the candi- date voted for. It is a legal and proper mode of exercising the right of suffrage if the voter choose it. It is a vote against all the can- didates voted for, eligible or ineligible. The difference between the two kinds of votes affects the candidates, not the voter.® The certificate of election is prima facie evidence of right to the seat.’ It is the best, but not the only evidence.* It is conclusive of the right of the office, although a prior incumbent contesting is authorized to hold.® ; Where the credentials are in due form the party must be sworn in pending the investigation and until a decision on the merits.” A CITIZENSHIP BY BIRTH. Who are citizens ? First. — Persons who are born in or are naturalized in the United States.4 1 Biddle v. Richard, Clarke & Hall (Cont. El. Cas. 1789-1834), 407. 2 State v. Murray, 28 Wis. 96. 8 Hadley v. Gutridge, 58 Ind. 309; State o. Murray, 28 Wis. 100. 4 Cush. El. Cas. 264, 265. 5 Case of Abbott of N. C., Senate Rep. No. 58, 42d Cong. 2d Sess. 6 Vote for Inelig. Cand., Cush. El. Cas. 497. 7 State v. Governor, 1 Dutch. 381; People v. Miller, 16 Mich. 56; People ». Vail, 20 Wend. 12; Cush. El. Cas. 216; Am. Law of El. 159, 160; Com. ». Baxter, 35 Pa. St. 263; Kerr v. Trego, 47 Id. 296 ; Crowell o. Lambert, 10 Minn. 369; State v. Sherwood, 15 Minn. 221; State v. Churchill, Zd. 455. ® Richard’s Case, Clarke & H. 95; Clement’s Case, 1 Bart. 266. ® Moulton v. Reid, 54 Ala. 320. © Porter v. Robbins, Clarke & H. 877; Amer. Law of Elect. 148, 149. 11 United States v. Rhodes, 1 Am. L. T. Rep. 22; Spencer v. Board, ete. 1 McArthur, 169. 300 A TREATISE ON CITIZENSHIP. Second. — The children of native or naturalized citizens.+ Third. — Persons born on an American vessel.? Fourth. — Persons made such by treaty.® Fifth. — Children born abroad, whose fathers were at the time of their birth citizens, and had at some time resided in the United States.* Sixth. — Citizens made. such by collective naturalization acts of Congress.® As citizens made by emancipation.® So, impliedly, Indians taxed are citizens.’ And all persons born in the district of country formerly the terri- tory of Oregon are citizens as if born elsewhere in the United States.® CririzensHip BY NATURALIZATION. Right of Expatriation. — The right of allegiance, though a funda- mental right,®is not perpetual.” It may be renounced," or it may be dissolved by mutual consent,” or it may be regulated or restrained.™ But all persons have a right to expatriate themselves and to dis- solve their connection with their parent country.“ Emigration with intent not to return, and assuming the obligations of a subject to a foreign government, is sufficient expatriation.® Actual emigration is 1 Rev. St. U. S., sect. 1993, 1999. 2 United States v. Gordon, 5 Blatchf. 18. * Pueblo Indians of New Mexico, 1 Chic. L. N. 169; McKay v. Campbell, 2 Sawy. 118. * Citizenship, 13 Op. Att.-Gen. 91. 5 Id. 397; Jones v. McMasters, 20 How. 8; McKinney ». Saviego, 18 How. 235. ® United States v. Rhodes, 1 Abb. U. 8S. 28; Matter of Turner, 1 Abb. U.S. 84. 7 United States v. Elm, 23 Int. Rev. Rec. 419. See Rev. Stat. U.S. sect. 1992. * Rev. Stat. U. 8. sect. 1995. ® Stoughton v. Taylor, 2 Paine, 655. ” Vattel, Book I. chap. 19, sects. 220-228; Rev. Stat. U. S. sect. 1999. Ut Eixpatriation, 14 Op. Att.-Gen. 295; Jansen v. Cath. Magdalena, Bee, 11; 3 Dall. 383. 12 Tuglis v. Sailor’s Snug Harbour, 3 Pet. 101. 13-9 Op. Att.-Gen. 62; 8 Ib. 139. 4 Rev. Stat. U. 8. sect. 1999; Vattel, Book I. chap. 19, sects. 220-228, 1 9 Op. Att.-Gen. 62, APPENDIX, 301 evidence, with other concurring acts.1 Renunciation of citizenship and actual removal, and the acquisition of a foreign domicile, is suffi- cient.? Expatriation includes naturalization.® CITIZENSHIP THROUGH HusBAND OR PARENT. Women may be citizens.* Naturalization by Marriage. — Any woman who is now, or may hereafter be, married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.> She becomes ¢pso facto a naturalized citizen of the United States.® The object of the act was to allow the citizenship of the wife to fol- low that of her husband without the necessity of any application for naturalization on her part.’ The term “who might lawfully be naturalized under the existing laws,” only limits the application to free white women.® _ An alien woman, who marries a citizen of the United States resid- ing abroad — the marriage being solemnized abroad, and the parties continuing abroad—is a citizen of the United States within the meaning of the act of 1855, though she never resided in the United States. Thus a woman born in the United States, but married to a citizen of France, and domiciled there, is not a citizen of the United States residing abroad.” Children of citizens of the United States, heretofore or hereafter born out of the United States, are to be considered as citizens of the United States.1 So, as to children of naturalized citizens,” and the questions of legitimacy cannot be inquired into.” 1 Stoughton v. Taylor, 2 Paine, 655. 2 Talbot v. Jansen, 3 Dall. 183 ; Bee, 11. 3 9 Op. Att.-Gen. 356. , 4 Miner v. Happersett, 21 Wall. 162. 5 Rev. Stat. U. 8. sect. 1994; Kelly ». Owen, 7 Wall. 496. 6 Kelly v. Owen, 7 Wall. 496. 7 Ib. 8 Ib. § Citizenship, 14 Op. Att.-Gen. 402. 10 %., 13 Op. Att.-Gen. 128. 4 Rey. Stat. U. 8. sect. 1993; Amer. Law of Elect. p. 46; Sasportas ». De la Motta, 10 Rich. Eq. 38. : 12 Rey. Stat. U. 8. sect. 2172; Campbell ». Gordon, 6 Cranch, 176 ; Sas- portas v. De La Motta, 10 Rich. Hg. 38. 18 Dale v. Irwin, 78 Ill. 170. 302 A TREATISE ON CITIZENSHIP. In determining whether a person is a legal voter, it is not proper to inquire whether he is legally married to the woman with whom he lives and keeps house.? State CirizENsHip — Its ExIsTENCE. There is a state citizenship,? as distinguished from United States citizenship.® The comity between states and citizens of the United States, so far as it concerns rights, privileges, and immunities not guaranteed by the Constitution of the United States, must yield to the law and policy of the state in which it is sought to be invoked.* A person may be a citizen of the United States and not be a citizen of a particular state. But a state court cannot make a citizen of the United States.® Although a state by its law, passed since the adoption of the con- stitution, may put a foreigner or any other description of person upon a footing with its own citizens as to the rights and privileges enjoyed by them within its dominion and by its laws, it will not entitle him to sue in its courts nor grant any privileges and immunities of a citi- zen of another state.” The inhabitants of the District of Columbia, by its separation from the states of Virginia and Maryland, ceased to be citizens of those states, and became citizens of such district.® That there is a state citizenship, see Registry Act of California of 1865-1866, sect. 11. 1 Draper v. Johnson, Clark & H. 702. 2 Cush. El. Cas. 343; Constitution of United States, art. 4, sect. 2, (1)- See Corfield v. Coryell, 4 Wash. C. C. 871; Conner v. Elliott, 18 How. 591. % United States v. Cruikshank, 92 U. 8. 542; Dred Scott v. Sandford, 19 How. 393. 4 Donovan v. Pitcher, 53 Ala. 411. 5 Cully v. Baltimore, etc., R. R. Co., 1 Hughes, 536; Prentiss v. Brennan, 2 Blatchf. 162; Slaughter House Cases, 16 Wall. 74; United States v. Cruik- shank, 92 U. 8. 543; 1 Wogds, 308; Frasher v. State, 3 Tex. Ct. App. 267. § Matthew v. Rae, 8 Cranch, C. C. 699; Dred Scott v. Sandford, 19 How. 393. 7 Dred Scott v. Sandford, 19 How. 393. * Reilly v. Lamar, 2 Cranch, 344. See Const. Cal. art. 1, sect. 8, par. 17. APPENDIX. 803 State Citizenship depends on Domicile. -Two things must concur : First, residence ; second, intent to make it a home.} It depends largely on intention and the conduct of the party.? One who emigrates to another state must be regarded as a citizen of such state.3 Citizen and person are synonymous terms.’ Citizen is analagous to subject at common law.5 Domicile is the place where a person lives or has his home, — the place to which when absent he has the intention of returning. A fixed residence in any place with an intention of staying there.7 Length of time, or even the shortest residence, with a design of permanent settlement, stamps the party with the national charac- ter.8 Residence, however short, if taken animo manendi, establishes domicile.? The presumption arising from actual residence is conclusive that the party is there animo manendi.” Residence is the source and foundation of domicile, and length of residence is evidence of inten- tion.2 In general, the national character of a person is to be decided by that of his domicile. ‘Where a person is bona jide domiciled in a 1 Story, Confl. of Laws, 37. 2 Ewing v. Blight, 3 Wall. Jr. 134. 3 Com. v. Towles, 5 Leigh, 743. 4 People v. C. & A. R. R. Co., 6 Chic. L. N. 280; 6 Bissell, 107. 5 United States v. Rhodes, 1 Abb. U. S. 39; North Carolina ». Manuel, 4 Dev. & B. 20; McKay v. Campbell, 2 Sawy. 129 ; The Ann Green, 1 Gall. 274. ® Story Confl. of Laws, 35. 7 Vattel, Book I. chap. 19, sect. 218. 8 The Ann Green, 1 Gall. 274; Walker ». Walker, 1 Mo. App. 404; The Venus, 8 Cranch, 253; White v. Brown, 1 Wall. Jr. 217; United States v. The Penelope, 2 Pet. Ad. 438; Burnham v. Rangeley, 1 Wood. & M. 7; Case v. Clarke, 5 Mason, 70. ® Johnson v. Falconer, 2 Paine, 602; Van Ness, 1; Case v. Clarke, 5 Mason, 70; Ex parte Wiggin, 1 Bank. Reg. 90; 1 Nat. Bank. Reg. Rep. 386. 10 Rogers v. The Amado, 1 Newb. 400; Bailey’s Case, Clarke & H. 411. 41 Johnson v. Falconer, 2 Paine, 602; Van Ness, 1. 12 The San Jose Indiano, 2 Gall. 268; Murray ». The Charming Betsy, 2 Cranch, 64; Maley’s Cases, 8 Cranch, 458; The Ann Green, 1 Gall. 274; Wildes v. Parker, 3 Sum. 593. 304 A TREATISE ON CITIZENSHIP. particular country, the character of the country irresistibly attaches to him whatever his trade or business.? A party can have only one domicile? And if a party have two residences he may elect which shall be his domicile.* The place of residence must be taken to be the domicile of choice,* and it is not changed by absence for educational purposes.® ‘ Domicile of origin is presumed retained until residence elsewhere has been shown.® It easily reverts.” A change of domicile depends on intent. A domicile of origin can- not be abandoned till another is acquired.® The determination depends on all the facts and circumstances taken together.” Domicile can only be divested by an actual departure,” ‘and not then if the removal is without intent to remain, unless suited." By a bona fide change.™ A person altering his,domicile to another state may be a citizen of that state though not having the right to vote.™ 1 Livingston v. Md. Ins. Co., 7 Cranch, 506. ? Abington v. North Bridgewater, 23 Pick. 170; Brent ». Armfield, 4 Cranch, C. C. 579. ® Burnham v. Rangeley, 1 Wood. & M.7; Brent v. Armfield, 4 Cranch, C.C. 579. * Butler v. Farnsworth, 4 Wash. C. C. 101; Rogers » The Amado, 1 Newb. 400. 5 Granby v. Amherst, 7 Mass. 1. See Cush. El. Cas. 436, 510. ® Ennis v, Smith, 14 How. 401; Burnham v. Rangeley, 1 Wood. & M.7; Prentiss v. Barton, 1 Brock. 373. 7 Catlin v. Gladding, 4 Mason, 308; Johnson ». Twenty-one Bales, 2 Paine, 601; The Nereide, 9 Cranch, 389; Prentiss v. Barton, 1 Brock. 389; Clarke v. Territory of Washington, 1 Wash. Terr. 68. See The Frendschaft, 3 Wheat. 14; The Francis, 8 Cranch, 335. ® Harris v. Firth, 4 Cranch, C. C. 710; Hayes ». Hayes, 74 Ill. 312; Jennison v. Hapgood, 10 Pick. 77. ® Kellogg v. Super. of Winnebago, 42 Wis. 97. 10 Huidmann’s App., 85 Pa. St. 466; Kellogg v. Super. of Winnebago, 42 Wis. 97. 11 Johnson v. Falconer, 2 Paine, 602; Van Ness, 1. 22 Beardstown v. Virginia, 81 Ill. 541. 8 Cooper v. Galbraith, 3 Wash. C. C. 546; Butler v. Farnsworth, 4 Wash. C.C.101; Jones v. League, 18 How. 76; Case ». Clark, 5 Mason, 70; Evans v. Davenport, 4 McLean, 574; Catlett v. Pac. Ins. Co., 1 Paine, 594. 14 Burnham v. Rangeley, 1 Wood. & M. 7. APPENDIX. ~ 805 The domicile of an infant is always presumed to be that of its mother.! A person in Mexico becomes a citizen by buying land.® State CITIZEN QUALIFIED FOR SENATOR. That the qualification for a senator is that he be a citizen of the state.3 As distinguished from the qualification for governor, who must be a citizen of the United States.4 LExpressio unius est exclusio, etc. The Legislature cannot add qualifications to those prescribed by the Constitution. One may be a citizen of the United States without having all the privileges and immunities of citizenship.® Constitutions are to be studied in the light of ordinary language, the circumstances attending their foundation, and the constructions placed upon them by the people whose bond they are.” A constitution is not to be construed technically.® And a construction which would necessarily occasion public or pri- vate mischief must yield to a construction which would occasion neither.9 Perhaps the safest rule of interpretation is to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history.” “Tt is stable and permanent, — not to be worked on by the temper of the times nor to rise or fall with the tide of events, — and notwith- 1 Sprague v. Litherberry, 4 McLean, 442. 2 Commiss. under Corwin, bet. United States and Mexico, in 1868. 8 Const. of California, art. 4, sect. 4. 4 7d. art. 5, sect. 3. 5 Page v. Hardin, 8 B. Mon. 661; and see State v. Covington, 29 Ohio St. 102. ® Scott v. Sandford, 19 How. 583, denying Amy v. Smith, 1 Litt. 326. ? Cronise v. Cronise, 54 Pa. St. 255; Paddleford v. Mayor, etc., 14 Ga. 438. 8 Wilkinson v. Leland, 2 Pet. 661; People v. Dawell, 25 Mich. 247 ; Dor- man v. State, 34 Ala. 216; Page v. State, 58 Pa. St. 338. ® Re parte Griffin, Chase, Dec. 364; 25 Tex. Supp. 623, 10 Prige v, Commonwealth, 16 Pet. 539. 306 A TREATISE ON CITIZENSHIP. standing the competition of opposing events and the violence of con- tending parties, it remains firm and immovable as a mountain amid the strife of storms, or as a rock in the ocean amid the raging waves.”1 | All power proceeds from the people of the states. The general government can claim no powers except such as are expressly granted, or are given by necessary implication.2 It cannot impose on a state officer any duty whatever.* The Fifteenth Amendment to the Federal Constitution does not confer the right of suffrage on any one.5 The elective franchise is not a natural right or immunity.® So a state has supreme and exclusive power to regulate the right of suffrage, or determine the class of inhabitants who may vote, with which Congress cannot interfere.7_ The state has exclusive power to regulate the conditions of tenure of office, and to regulate proceed- ings in election contests,9 and to determine the status, or domestic and social condition of its citizens.” The constitutions of Alabama, art. 8, sect. 1; Arkansas, art. 3, sect. 1; Colorado, art. 7, sect. 1; Florida, art. 15, sect. 1; Georgia, art. 2, sect. 1; Indiana, art. 2, sect. 2; Kansas, art. 5, sect. 1; Michigan, art. 7, sect. 1; Minnesota, art. 7, sect. 1; Missouri, art. 8, sect. 2; Nebraska, art. 7, sect. 1; Oregon, art. 2, sect. 2; Texas, art. 6, sect. 2, and Wisconsin, art. 3, sect. 1, declare that foreigners who ' Van Horne’s Lessee v. Dorrance, 2 Dall. 309, cited in Bourland ». Hil- dredth, 26 Cal. 161. * Sturgess 0. Crownenshield, 4 Wheat. 122; and see Desty’s Fed. Const. p. 41. - ® Martin v. Hunter, 1 Wheat. 304; s. c. 4 Munf. 1; Frasher v. State, 3 Tex. Ch. App. 278. 4 Com. v. Dennison, 24 How. 66. 5 Desty’s Fed. Const. p. 287, notes. § Id. p. 282, note 21. 7 Huber ». Reily, 53 Pa. St. 112; United States v. Anthony, 11 Blatchf. 200; Spencer v. Board of Registration, 1 McArth. 169; see Desty’s Fed. Const. p. 281, note 20. ® Kennard v, Louisiana, 92 U. 8. 480; Spencer v. Board of Registration, 1 McArthur, 169. ® Kennard »v, Louisiana, 92 U. 8. 480. 10 Strader v. Graham, 10 How. 82; see Desty’s Fed. Const, p. 286, note 4, APPENDIX. 307 have declared their intention to become citizens of the United States are qualified voters. In Connecticut “all persons who have been, or shall hereafter, previous to the ratification of this Constitution, be admitted freemen, according to the existing laws of this state, shall be electors.”+ And by sect. 2, as if some regard should be paid to United States, citizen- ship, it states that citizens of the United States may be admitted as electors on certain conditions and qualifications not prescribed for its own citizens.” In Delaware every white male citizen of the age of twenty-one or over is an elector.? In Illinois, by the Constitution of 1848, every white male inhabi- tant and resident of the state at the time of its adoption is an elector.* And by the Constitution of 1870 this right is perpetuated.® In New Hampshire every inhabitant of the state is an elector.6 In New York every male citizen is an elector.” In West Virginia every male citizen of the state is an elector.8 And in Kentucky every free (white) male citizen is an elector.9 And the state of Kentucky alone, of all the states above men- tioned, requires the candidate for state senator to be a citizen of the United States. In all the rest the qualifications of an elector is sufficient for a candidate to the Legislature in either branch. Thus it appears that in a majority of the states, state citizenship is the highest qualification, which, associated with age and residence, is required for the right of elective franchise, or for the right to hold office, while full United States citizenship is wholly or partially ignored. Hence the decision that a state has exclusive power to regulate the conditions of the tenure of office. 1 Const. of Connecticut, art. 6, sect. 1. 2 7b. sect. 2. 8 Const. of Delaware, art. 4, sect. 1. 4 Const. of Illinois, art. 6, sect. 1. 5 7b. art. 7, sect. 1. ® Const. of New Hampshire, Part. I, sect. 11. 7 Const. of New York, art. 2, sect. 1. 8 Const. of West Virginia, art. 4, sect. 1. ® Const. of Kentucky, art. 2, sect. 8. 10 Kennard v. Louisiana, 92 U. 8. 480; Spencer v. Board of Registration, 1 McArthur, 169. 308 A TREATISE ON CITIZENSHIP. B. FRANCE. [Translation.] The provisions of the Code Napoléon,* March 8, 1803, are as fol- lows :— Cuapter I. —On. tHE Ensoyment or Crvit RicHTs. 7. The exercise of civil rights is independent of the quality of a citizen, which is acquired and retained only in conformity to constitu- tional law. 8. Every Frenchman shall enjoy civil rights. 9. Every individual born in France of an alien may, within a year following the time when he shall have attained his majority, claim the quality of a Frenchman, provided that, in case he reside in France, he declares that it is his intention to fix his domicile there, and in case he reside in a foreign country he makes a declaration that he will take up his residence in France, and that he will establish himself there within a year, counting from the act of this declara- tion. 10. Every child of a French citizen, born in a foreign country, is French. Every child of French parents born abroad, whose father shall have lost his French citizenship, may recover this citizenship by fulfilling the formalities prescribed in art. 9. 11. An alien shall enjoy in France the same civil rights as those accorded to the French by the treaties of the nation to which this alien shall belong. 12. An alien woman who shall have married a Frenchman shall follow the condition of her husband. 13. An alien who shall have permission by authority of the king to establish his domicile in France shall enjoy all civil rights as long as he shall continue to reside therein. 14, An alien, even not residing in France, may be cited before French courts for the execution of obligations contracted by him in France with a Frenchman. Code Napoléon, “ Code Civil” Liv. I. chap. 7. APPENDIX. 309 15, A Frenchman may be arraigned before a court of France for obligations contracted by him in a foreign country, even with an alien. 16. In all affairs, other than those of commerce, the alien who shall be the plaintiff shall be obliged to give bail for the payment of the costs and damages resulting from the process, at least when he does not possess real estate in France of a sufficient value to insure this payment. Cuaprter II. — On tue Forreirure or Crvin RicHts. Section I.— On the forfeiture of civil rights by the loss of French citizenship : — 17. French citizenship shall be lost: First, by naturalization in a foreign country ; second, by the acceptance, without the author- ization of the king, of a public office conferred by a foreign govern- ment ; third, and finally, by any establishment in a foreign country without intent to return. Commercial establishments can never be considered as having been made without intent to return. 18. A native of France who shall have lost his citizenship may always recover it on re-entering France with the authorization of the king, and on declaring that he wishes to remain there, and that he renounces all distinction contrary to French law. 19. A Frenchwoman, who shall marry an alien, shall follow the condition of her husband. If she become a widow she shall recover her quality of a French citizen, provided that she reside in France, or that she return there with the authorization of the king, and on de- claring that she wishes to establish herself there. 20. Individuals who shall regain the quality of French citizens in the cases provided for by arts. 10, 18, and 19, shall not profit by it until they shall have fulfilled the conditions imposed on them by these articles, and only for the exercise of the rights opened for their bene- fit since this époque. 21. The French citizen who, without the authorization of the king, shall enter a foreign military service, or who shall affiliate him- self with a foreign military corporation, shall lose his French citizen- ship. He can re-enter France only by the permission of the king, and recover French citizenship only by fulfilling the conditions im- 310 A TREATISE ON CITIZENSHIP. posed on a foreigner about to become a citizen, —all without preju- dice to the punishment pronounced by criminal law against Frenchmen who have borne or shall bear arms against their country. NATURALIZATION OF FRENCHMEN ABROAD. An imperial decree of 1811 imposes severe penalties upon French- men naturalized abroad, without permission from their own govern- ment. It is a question whether this decree is still in force, but it appears to have been acted upon in 1834; and it is referred to in an official communication from the French government in 1859. At all events, it has never been formally abrogated, and its exist- ence in the French statute-book must be borne in mind when the liberality of the French law in récognizing expatriation is extolled. The other disabilities mentioned in it having been abolished, the only penalty enacted by this decree which could now be enforced is that of the seventy-fifth article of the penal code :—1 “Every Frenchman who shall have borne arms against France shall be punished by death.” — (Imperial decree of the 26th of August, 1811.) Titte I. French citizens naturalized in a foreign country with our authorization. Articte 1. No French. citizen can be naturalized in a foreign country without our authorization. Art. 2, Our authorization shall be accorded by letters patent drawn up by our chief justice, signed by our hand, countersigned by our secretary of state, indorsed by our cousin, the Prince Archichan- celier, inserted in the bulletin of laws, and registered in the imperial court of the last domicile of those whom they concern. Arr. 3. Frenchmen so naturalized in foreign countries shall enjoy the right of possessing, of transmitting property, and of succession thereto, even when the subject of the country where they shall be naturalized shall not enjoy these rights in France. Art. 4, Children of a Frenchman naturalized in a foreign country, and who are born in that country, are aliens. They recover the qual- _ 2 Les Cing Codes “ Code Pénal,” Liv. IIT. art. 75. APPENDIX. 311 ity of French citizens by fulfilling the formalities prescribed by arts. 9 and 10 of the Code N: apoléon. Nevertheless they shall collect inheritances, and exercise all rights which shall be open to their profit during their minority, and in the ten years which shall succeed the time when they shall attain their majority. Art 5. Frenchmen naturalized in a foreign country, even with our authorization, shall never bear arms against France under penalty of being arraigned before our courts, and condemned to the punishment provided in the Penal Code, Book 3, art. 75 and following. Titte IT. French citizens naturalized in a foreign country without our authorization. Articte 6. Any Frenchman naturalized in a foreign country with- out our authorization shall suffer the loss of his property, which shall be confiscated. He shall no longer have the right to inherit prop- erty, and any legacies which may be left to him shall pass into the hands of the person whose claim is next to his, provided that such person be a French citizen. Art. 7. It shall be proved before the court of the last domicile of the defendant, on the initiative of our “ procureur-général,” or on the request of the civil party interested, that the individual, having been naturalized in a foreign country without our authority, has lost his civil rights in France ; and consequently the succession opened to his profit shall be adjudged to whomsoever has the right thereto. Art. 8. Individuals whose naturalization in a foreign country without our authorization shall have been proved, as provided in the preceding article, and who shall have received, directly or by trans- mission, titles instituted by the “ senatus consultum” of the 14th of August, 1806, shall forfeit them. Art. 9, These titles and the property thereto attached, shall de- volve upon the next in law, excepting the rights of the wife, which shall be regulated as in case of widowhood. Art. 10. If the individuals mentioned in art. 8 shall have re- ceived any of our orders, they shall be stricken off from the registers and rolls, and shall be forbidden to wear the decoration. Art. 11. Those who were naturalized in a foreign country, and against whom proceedings shall have taken place as provided in arts. 312 A TREATISE ON CITIZENSHIP. 6 and 7 preceding, if found within the territories of the empire, shall on the first offence be arrested and conducted across the fron- tier ; on a repetition of the offence, they shall be indicted before our courts and condemned to imprisonment for a period of not less than one year, nor more than ten years. Art. 12, And no commutation or release from the punishment above mentioned can take place but by letters of relief granted by us in conseil privé as letters of pardon. Arr. 13. Every individual naturalized in a foreign country with- out our authorization, who shall bear arms against France, shall be punished in conformity with art. 75 of the Penal Code. The ninth article of the Code Napoléon was modified by a law of 1851; — “ January 28, 29, and February 7, 1851. (10th series, No. 2730, (art. 9, C. N.) Law concerning individuals born in France of foreigners who themselves were born there, and the children of naturalized foreigners : . “ Articye 1. Every individual born in France of an alien, who himself was born there, is himself a French citizen, provided that within a year after attaining his majority, as fixed by French law, he does not claim the quality of a foreigner by a declaration made either before the municipal authority of the place of his residence, or before the diplomatic agents or consuls accredited to France by the foreign government. “2. Art. 9 of the Civil Code is applicable to the children of a naturalized foreigner, although born in a foreign country, if they were minors at the time of the naturalization. As regards the chil- dren born in France or abroad, who were of age at this same period, art. 9 of the Civil Code is applicable in the year following that of the said naturalization.” By the law on the army of 1831 (21st March, 1832), ‘No one shall be allowed to serve in the French army who is not a French citizen.” This provision has led to much correspondence between France and other powers, more especially the United States, respecting the right to exemption from the conscription, on their return to France, of Frenchmen naturalized abroad. APPENDIX. 313 In 1859 M. Walewski furnished ‘the American chargé d’affuires with an authoritative declaration of the views of the French govern- ment on this point ?; — Paris, Nov. 25, 1859. “Str :— I have the honor to communicate to you the reply of the government of the Emperor to the questions which the deceased Mr. Mason had put to him in his letter of the 27th of July last, relative to Frenchmen, emigrants to the United States, who have there ob- tained letters of naturalization. “After having set forth the principles of the American law in the matter of naturalization, Mr. Mason reduced his inquiry to a formula, as follows : — “* Horst question. Does the French legislation recognize in individ- uals, French by birth, the right to cause themselves to be naturalized as subjects or citizens of a foreign country, without preliminary author- ization from the government ?’ “French legislation does not confer on a Frenchman the right to renounce his nationality, but he loses it by positive law (art. 7, Code Napoléon) through naturalization in a foreign country. “That naturalization, by the terms of the decree of Aug. 26, 1811, may have grave consequences, provided for by that decree when it has not been authorized by the government. “Even in cases in which such authorization has been accorded, it effectively disperses the prejudicial results of an unauthorized natural- ization, but expressly maintains the loss of nationality. “ ¢ Second question. Are Frenchmen by birth, but naturalized citi- zens of the United States, who return to France without having the intention to recover nationality nor to establish themselves perma- nently, subject to the law of conscription ? ’ “The law of conscription imposes on every Frenchman the obliga- tion of military service. It attaches to the fulfilment of this obli- gation a penal sanction. “Therefore, the Frenchman who, before he has lost that quality, shall have emigrated, thus placing himself out of the way of the obli- gation of military service, would assuredly be punishable on his return to France, even although he should have obtained a foreign naturali- 1Senate Ex. Doc. 1859-1860, Vol. XI. p. 214. 314 A TREATISE ON CITIZENSHIP. zation, and he may be prosecuted, whether as refractory (art. 230, du nouveau Code Militaire, loi du Juin, 1859) or as a deserter. (Arts. 235, 236, 237, of same date.) “This, moreover, is recognized by the Government of the United States, as it is a sequence from the letter of Mr. Mason, that it re- fuses its protection to the Frenchman become a stranger, in the two cases following :— “J, If the obligation of military service be anterior to the epoch of emigration : “2, If, before his emigration, the Frenchman had not satisfied the law of conscription. The question becomes more difficult when it treats of a man born abroad of French parents, and who, conse- quently, by the provisions of art. 10 of Code Napoléon, is himself a Frenchman, and bound to military service, in conformity with art. 6 of the law of March 21, 1832. “ But if, in France, the quality of citizen is now actually acquired by parentage, yet, for a long time, nativity alone conferred it, and it may still be so in the United States. In such a case it would be hard to subject to French law an individual who should have fulfilled similar obligations toward the country in which he was born. “« Third question. Does the French law of conscription render the Frenchman born and resident in a foreign country subject to military service in the same degree as if he had not left the country of his birth. or as if he had not caused himself to be naturalized as a foreigner 2’ “This question is disposed of by the solution which the Federal Government itself admits to the second. “If, in effect, the Frenchman, before emigrating and causing him- self to be naturalized in a foreign country, has not satisfied the obli- gation of military service, evidently he may be prosecuted in France, in case of his return, even though the return ‘should be only acciden- tal. Besides, he might, during his absence, have been sentenced for contumacy, and his presence in France would impose, as well on the public authority as himself, the duty of clearing off this contumacy. “Such are the solutions which the three questions that the lega- tion of the United States has presented to me can receive. It is difficult, however, to treat them theoretically, without knowledge of APPENDIX. 315 the circumstances which may have given birth to them, which often are of a nature to draw out modifications of the application of strict law. “TY will add that all the points treated in the present dispatch present veritable questions of state, upon which the government of the Emperor can only express opinions, but the solutions belong ex- clusively to the courts. “ Receive, et., WALEWSKI. “‘Mr. CaLnoun, / Chargé d Affaires of the United States at Paris.” It will be seen from M. Walewski’s note that he considered that a Frenchman naturalized abroad was liable to the law of conscription on his return to France; but a case occurred in 1860 in which it was decided by a civil tribunal that naturalization in a foreign coun- try exempted a Frenchman from the conscription. The case, that of Mr. Zeiter, is frequently referred to in the corre- spondence, and is of importance as establishing a principle of French law, : It has never been published, but a copy has now been procured from Wissembourg, where the judgment was delivered, and is printed in the Addenda. These conscription cases are ordinarily dealt with by the local mil- itary tribunals (conseils de guerre), and there does not seem to have been any other instance of a recent decision on the subject by a civil court, nor does this provincial judgment appear to have been revised by a superior court. Lord Lyons has been good enough to procure a report from M. Treitt, the counsel to the Paris embassy, upon the general question of the status in France of Frenchmen naturalized abroad, with refer- ence especially to their liability to the conscription. As this report gives full explanation of the French law and of the practice of the French government, it is here inserted at length : — “ Pants, January 26, 1868, ‘His Excellency Lorp Lyons, Embassador of Her Britannic Majesty at Paris: “My Lorp: Your Excellency has requested of me a copy of a judgment rendered by the French court at Wissembourg, in favor of 316 A TREATISE ON CITIZENSHIP. Michael Zeiter, a French citizen by birth. The judgment is quoted by Laurence, in his notes on Wheaton (edition of 1863), as having discharged Michael Zeiter from all the obligations which a French- man owes to his country, among others the obligation to perform mil- itary service. The reason alleged for this decision is that Zeiter had been naturalized as a citizen of the United States. “Tt is added that this judgment seems to be one of the rare decis- ions (if not the only one) in which a court has acknowledged that the naturalization of a person in a foreign country is sufficient to annul the sovereign rights of the mother country, and the obligations which he has there contracted by his birth. “In view of the remarks which I had the honor to address to your Excellency, you have referred me to a note which Count Walewski, Minister of Foreign Affairs of France, addressed to Mr. Calhoun, the American minister, under date of Nov. 25, 1859, which note was published in 1860 among the documents communicated to the Congress of the United States. In that note M. Walewski does not admit that a French citizen can, by the mere fact of his naturaliza- tion abroad, be exempted from the obligations imposed upon him by the laws of his country, and escape, among other requirements, the military service. In this latter case, says the minister, such refrac- tory Frenchman incurs the penalties provided by the Military Code (art. 230) for failure to perform military duty. M. Walewski, moreover, calls attention to the imperial decree of Aug. 26, 1811, which provides severe penalties for Frenchmen who have become naturalized as foreigners without the authorization of their govern- ment. “Finally, your Excellency has been pleased to point me to the case of one Alibert, belonging to the class of 1839, who failed to perform military duty, and who was, on the 10th of October, 1852, sentenced to be imprisoned for one month therefor, by a court-martial at Mar- seilles. He appealed, however, from the sentence to the court of revision at Toulon, and there, with the assistance of the American consul, he pleaded his naturalization in the United States, and was acquitted. “Tn sum, your Excellency has addressed to me the following question : * APPENDIX. 317 “What is the law governing a Frenchman who has been natural- ized as a foreigner after his return to France ? “The question is simple, but the reply will necessarily be complex. “T give, in the first place, a copy of a sentence of the court at Wissembourg, dated June 2, 1860. “As is seen, this sentence only shows that Zeiter has lost his French citizenship. The legal consequence of this showing is that he can no longer serve in the French army. It was no part of the duty of the court, however, to concern itself with the penalties and civil incapacities which Zeiter might have incurred, as we shall subse- quently see. This decision is based upon law, as are several others rendered by different courts in similar cases, especially since the war between the North and South, on account of which many Frenchmen, naturalized as American citizens, returned to France. “The naturalization of a Frenchman abroad, whatever may be his new country, involves the loss of his French citizenship, and this in- volves ipso facto incapacity for the military service. This is the case of Alibert ; he doubtless proved his American citizenship, and was ex- empted from the penalty attached to the offence of wilfully avoiding military duty, said penalty being imprisonment for from one month to one year, according to art. 38 of the army law of 1832. ‘The above two cases are not reported in any work on jurispru- dence ; they are not, however, the only ones; there are half a score of them in the bureau of military justice at the ministry of war. “The military authorities in France observe with regret the dispo- sition which has been manifested during the past three years, by the young men of the country, to avoid the performance of military duty. “The ministry of war now proceeds in such cases as follows: “When the case of a person who has sought to avoid the due per- formance of military duty is brought before it, it has the party charged with the offence taken before a court-martial, for such a person is a soldier who has not rejoined his regiment. “If the person seeking to avoid the performance of military duty pleads naturalization in a foreign country, the court-martial defers the enforcement of the penalty and grants the accused a delay, that he may be enabled to prove his foreign citizenship in the courts. “If he obtains a judgment declaring that he has lost his French 318 A TREATISE ON CITIZENSHIP. citizenship, the court-martial acquits him, but only when his naturali- zation took place three years before. If this is not the case, the judges enforce the penalty provided for the offence. In fact, the avoidance of military service is an offence which no mere lapse of time can cancel; it lasts until the military service is rendered. Now, the jurisprudence of courts-martial says that the offence no longer exists when the offender has become naturalized in a foreign country ; thenceforward the offender who has been naturalized more than three years’ incurs no penalty. If, on the other hand, the naturalization did not take place more than three years previously, the ex-French- man is treated as a person wilfully avoiding military service, and is punished, even though he be a citizen of some other country, no mat- ter which. “Thus, in order to escape such a penalty, the ex-Frenchman must pass at least three years abroad. If he returns before the expiration of such time, he incurs the risk of suffering punishment for from one month to one year, by sentence of court-martial, for he is still avoiding the performance of military duty. “We must not forget to say that when, in this case, the person seeking to avoid military service has suffered his punishment he is free, and his foreign citizenship prevents him from being compelled to serve in the French army. “Such are the rules observed by the bureau of military justice at the ministry of war. “Things are managed in about the same way for the national guard. Then there are boards of verification. “Tt is the duty of these boards to decide concerning the grounds of exemption claimed by persons who refuse to do military duty. “Now, it often happens (this I say of my own knowledge) that natives of France, when called to serve in the national guard, present American or other naturalization papers. In presence of such docu- ments these persons have been declared exempt from the service by reason of their foreign citizenship. Moreover, an opinion of the coun- cil of state of Nov. 18, 1842, has sanctioned this system of jurispru- dence. “From all the foregoing observations, what are we to conclude ? It is that a Frenchman may, by getting naturalized abroad, escape APPENDIX, 319 the obligations which are imposed upon him by the country of his birth. “This consequence is derived from the common law and from the exceptional law. “Art. 17 of the Civil Code expressly says that French citizenship is lost by naturalization acquired in a foreign country. It appears from the debates of the legislature of 1803 that the word ‘acquired’ was applied to an act of express will, performed according to the legal forms of the new country, and having for its object the renunciation, proprio motu, of French citizenship. “The Civil Code, then, permits Frenchmen to acquire a foreign nationality. It is, in fact, a principle inherent in human liberty, a principle of natural right, that a person may leave the soil on which his birth may by chance have thrown him. This principle is ad- mitted by all publicists from Cicero? down to those of our time. The French laws contain frequent enunciations of it. Naturalization in Prussia, however, is subject, it is said, to the previous authorization of the government.® “In France, however, according to the Civil Code, which is the common law, the right of being naturalized abroad is absolute. “On the 26th of August, 1811, the Emperor Napoleon I. promul- gated a decree relative to the naturalization of Frenchmen abroad. “ Art. 1 of this decree is as follows :— “ “No Frenchman can be naturalized in a foreign country without our authorization. “¢The following articles mention the civil rights which Frenchmen naturalized in a foreign country shall continue to enjoy in France.’ “ Art. 6 is as follows : — “¢ Art. 6. Any Frenchman naturalized in a foreign country, with- out our authorization, shall suffer the loss of his property, which shall be confiscated ; he shall no longer have the right to inherit property, 1 Locré, Esprit du Code Civil, Vol. I. p. 333. 2 Ciceron, Oratio pro Cornelio Balbo, chap. 13; Grotius, Lib. IT. and V. sect. 24; Puffendorf; Lib. VIII. chap. 11, s. c. 2; Merlin, Répertoire Gé- néral, Verbo Souveraineté, sect. 4; Wolf, 76th part, p. 187; French Constitu- tion of Frimaire, year VIII., in its 4th article; Toullier, Code Civil, Vol. IL, No. 266, ete. 2 Prussian Code, art. 2, Book XVII. sect. 127. 320 A TREATISE ON CITIZENSHIP. and any legacies which may be left to him shall pass into the hands of the person whose claim is next to his; provided that such person be a French citizen.’ “Finally, art. 11 gives the government the power to expel from France any Frenchman naturalized in a foreign country without au- thorization ; and, in case of his return to the territory of the empire a second time, he may be sentenced to be imprisoned for a term of not less than one year nor more than ten years. ‘Napoleon L., it is said, was induced to promulgate this decree by seeing Frenchmen who were ill-disposed toward the empire among hostile nations and in foreign armies. Thus is explained the severity of this decree, which has been the object of the most bitter attacks. In the first place, it has been said that it was unconstitutional, be- cause it was prepared and promulgated without the concurrence of the Corps Législatif, contrary to the constitutions impériales. More- over, since the fall of the first empire, some writers have maintained that this decree has become obsolete. There are even decisions of the government of the Restoration which have annulled judgments rendered in virtue of this decree.? “ A greater number of authors, however, have contended that this decree still had the force of a law, for the reason that it had never been attacked and annulled by the Corps Législatif. Moreover, nu- merous decisions have declared that the imperial decrees promulgated and executed as laws in the time of the empire have remained in force in all their provisions which have not been abrogated by subse- quent laws. In fact, the decree of 1811 has been enforced in cases of legacies left by Frenchmen who had been naturalized abroad with- out authorization.? “This decree, however, is none the less a violation of the natural law, as it provides severe penalties for naturalization abroad, while all publicists proclaim the right which every man has to change his country. “This decree is, at the present day, paralyzed in its application ; in 1 Decisions of the Council of State of June 19, inserted in the Bulletin des Lois. 2 See, among others, a decision of the court of Pau, of March 19, 1834. Collection of Decisions of Dalloz, year 1835, second part, p. 38. APPENDIX. 321 fact, the confiscation of property was abolished by the charter of 1814. Then came the law of July 14, 1819, which gives all foreigners the same rights as Frenchmen, as regards property and inheritance, without distinction between foreigners by birth and foreigners by nat- uralization. A solemn decision of the court of Paris has decided that this decree is not applicable to the right of inheriting property.? “The annals of jurisprudence have not, for more than twenty years, furnished a single case in which either the government or par- ties interested have caused the enforcement of the decree of 1811. I think that, if the case should be presented, the courts would hesitate a long time before enforcing the rigorous provisions of this excep- tional legislation. “But how many uncertainties are there in this matter, so impor- tant, since it affects the personal status of the parties. “Let us observe, however, that the decree of April 26, 1811 (whether it is still in force or has become obsolete), does not annul naturalizations acquired abroad without authorization; it inflicts penalties therefor, but allows them to exist. The Frenchman has therefore a new country, to which he has been obliged to take the oath of allegiance. No one can have two countries. The general interest requires that no one should have two countries.’ “The country of adoption supplants the mother country. In my opinion the ex-Frenchman is released from his obligations toward the latter. The English government, in giving letters of naturalization to foreigners, notifies them, at the same time, that it does not intend to release them from their obligations toward their mother country. “This is an act of prudence. But the French law is silent upon the rights which it retains over individuals who obtain naturalization abroad without authority. She places them on a similar footing to strangers so far as relates to civil rights. Thus the French law itself breaks the ties which unite an ex-Frenchman to his mother country. Aside from the confiscation of property and the loss of right of succes- sion, — penalties of 1811, to-day inapplicable and unapplied, — the 2 Decision of Feb. 1, 1836. Dalloz’s Collection of Decisions, 1836, second part, p. 71. 2 Statement of Reasons for the First Title of the Civil Code, 1803. 8 General Repertory of Merlin, Verbo Loi, sect. 6. 19 ° f 322 A TREATISE ON CITIZENSHIP. law imposes on the ex-Frenchman the sole obligation never to bear arms against France on pain of death.? “The Frenchman who gives up his nationality knows the rights of which he will be deprived in France. The courts can refuse to give him their judgments in his disputes with foreigners. If he is plain- tiff or defendant, he can be subjected to the category of judicatum solvi. He no longer enjoys any political or municipal rights. He is disqualified for public offices and the practice of certain professions ; in short, to curtail the list, he can be expelled from French territory, like all other strangers, by a simple act of the police.” “The Frenchman must have calculated inconveniences and the advantages of foreign naturalization. He is released from the bur- dens imposed by the mother country. “This state of things is to be regretted. For instance, to become naturalized a Swiss, one year’s residence, and the payment of a few francs are sufficient. It is a great facility given to young Frenchmen who wish to escape the military law. This point merits the attention of French legislators, but at this moment the law must be taken as it is, and it must be conceded that naturalization abroad releases a Frenchman from his obligations toward France. The decisions of the courts only confirm the expatriation ; the consequences of expa- triation emanate from the laws themselves ; one of these consequences is the exemption from military service. “T believe that I have answered, in every particular, the question which your Excellency has put to me. I have freed it from all collat- eral questions which the loss of French nationality suggests, but which would have rendered the subject obscure. In sum, I am led to the conclusion that France does not impose any other obligation on the ex-Frenchman than not to bear arms against her. “T take leave to add that this conclusion shocks my inward feel- ings. I regret to see a simple naturalization abroad cancel all the obligations which are due to the mother country. But questions of law are not solved by the feelings alone; it is a matter of law as it is and not as it ought to be. Accept, etc., TREITT. ** Advocate of the Imperial Court, Counsel to the English Embassy.” 1 Art. 75 of the Penal Code; and art. 11 of the Decree of Aug. 26, 1811; arts. 21 and 22 of the Civil Code. 2 Art, 13, Loi du 3 Decembre, 1849, sur les étrangers. APPENDIX. 323 NATURALIZATION OF ALIENS IN FRANCE, Under the old law of France, the Dutch, and Swiss, and other na- . tions had, by virtue of treaties, the rights of natives (indigenatiis), and by the Bourbon Family Compact of 1761 a similar privilege was conceded to Spanish subjects. The law of May 2, 1790, provided, — “All those who, born out of the kingdom, of foreign parents, are established in France, shall be regarded as French and admitted, upon taking the civic oath, to the exercise of the rights of active citi- zens after five years’ continuous domicile in the kingdom, if they have besides acquired real estate or married a Frenchwoman, or estab- lished a commercial house, or received in any city, letters of citizen- ship.” The constitution of the 3d of September, 1791, “allows the legis- lative power to issue to a foreigner, for important considerations, an act of naturalization, on condition only of his residence and oath.” Thus was established the system of “ grande et petite naturalisation,” which, with various modifications, has continued in force up to the accession of the present emperor. The constitution of 1793 did away with the oath and declared French citizens all aliens, aged twenty-one, who had been domiciled in France for one year, and who lived by labor. The constitution of 1795 abrogated that of 1793, and made it a condition of naturalization that an alien should have previously de- clared his intention to domicile himself in France. By the terms of the third article of the constitution of 1801, “a foreigner becomes a French citizen when, after having attained the age of twenty-one years and declared the intention of settling in France, he has resided there ten consecutive years.” By a decree of the senate of 1804, confirmed by a decree of the | 17th of February, 1808, the government was authorized to confer the quality of French citizen, after one year’s residence, on any alien who had rendered important services to France, thus reviving the “ grande naturalisation” of 1790, but without requiring an oath. . By an ordinance of the 4th of June, 1814, art. 1, “in conform- ity to the ancient French constitutions, no foreigner can, from this day set forth, sit, neither in the chamber of peers nor in that of the 324 A TREATISE ON CITIZENSHIP. deputies, unless by important services rendered to the state he has obtained from us (the king) naturalization papers approved by the two chambers.” The privilege of “grande naturalisation” has been conferred on Benjamin Constant and other distinguished foreigners. These laws were consolidated by the law of the 3d of December, 1849 :— “Arricte 1. The president of the republic shall decide upon ap- plications for naturalization. ! _ “Naturalization cannot be granted until after inquiry made by the government respecting the morality of the foreigner, and upon the fa- vorable opinion of the council of state. “The foreigner shall be obliged, besides, to fulfil the following conditions : — 7 “1. To have, after the age of twenty-one years, obtained author- ity to establish his domicile in France in conformity to art. 13 of the Civil Code. “2. To have resided ten years in France since this authorization. “A naturalized foreigner shall enjoy the right of eligibility for the National Assembly only by virtue of a law. “ Notwithstanding, the delay of ten years can be reduced to one year in favor of foreigners who shall have rendered important services to France, or who shall have introduced into France an industrial enterprise, or useful inventions, or distinguished talents, or who shall have founded great institutions. «3. So long as the naturalization shall not have been issued, the authority granted to a foreigner to establish his domicile in France can always be revoked by decision of the government, which must take the advice of the council of state. “4, The provisions of the law of the 14th of October, 1814, re- specting the inhabitants of the departments annexed to France, can- not be applied in the future. “5. The preceding provisions do not affect, in any respect, the rights of eligibility to the National Assembly acquired by naturalized foreigners before the promulgation of the present law. “6. The foreigner who shall have made, before the promulgation * Bulletin des Lois, Vol. CIXVII. p. 545. APPENDIX. 325 of the present law, the declaration prescribed by the third article of the constitution of the year VIII, can, after a residence of ten years, obtain naturalization according to the form indicated in art. 1. “7, The minister of the interior can, through police, order all foreigners travelling or residing in France to immediately leave French territory, and cause them to be conducted to the frontier. “He shall have the same right regarding the foreigner who shall have obtained authority to establish his domicile in France ; but after the lapse of two months the measure shall cease to be in force if the authority shall not have been revoked as indicated in art. 3. “ Tn the departments on the frontier the prefect shall have the same right in regard to a non-resident foreigner, subject to immediate ref- erence to the minister of the interior. ‘“‘ Every stranger who shall have evaded the execution of the meas- ures specified in the preceding article, or in art. 272 of the Penal Code, or who, after having left France in consequence of those meas- ures, shall have returned without the permission of the government, shall be brought before the courts and condemned to an imprisonment of from one to six months. “ After the expiration of his term of punishment he shall be led to the frontier. “The penalties prescribed by the present law can be reduced in conformity to the provisions of art. 463 of the Penal Code.” On the 29th of June, 1867, a law was passed reducing the term of residence required from ten to three years. “Art. 1. The articles 1 and 2 of the law of 3d December, 1849, are supplanted by the following provisions : — “Arr, 1. A foreigner who, after the age of twenty-one years, has, in conformity to art. 13 of the Code Napoléon, obtained authority to establish his domicile in France, and has resided there three years, can be admitted to enjoy all the rights of a French citizen. “The three years shall count from the day when the application for authority shall have been registered at the ministry of justice. “The domicile in a foreign country to fill an office conferred by the French government is equivalent to residence in France. “Tt is granted upon an application for naturalization, after inquiry into the moral character of the foreigner, by a decree of the emperor, 326 A TREATISE ON CITIZENSHIP. issued upon the report of the minister of justice, subject to the coun- cil of state. “Arr, 2. The delay of three years fixed by the preceding article, can be reduced to asingle year in favor of foreigners who shall have rendered important services to France, who shall have introduced into France an industrial enterprise or useful inventions, or who shall have brought to it distinguished talents, or founded great institutions, or instituted great agricultural improvements. “Art. 2. The fifth article of the law of Dec. 3, 1849, is re- pealed.” ‘Tt will be seen, therefore, that there are two forms of naturalization in France. “La grande naturalisation,” ? which confers the privilege of sitting in the chambers, and which corresponds, in some measure, to the for- mer English form of special naturalization by act of parliament, re- pealing the disabilities of previous acts in favor of a particular person, as was done in the case of Prince Albert, and to the present natural- ization ‘by act of parliament, as in the Bischoffsheim case. “La petite naturalisation”” corresponds with our naturalization by certificate from the secretary of state, and is granted by Jettres de décla- ration de naturalité to aliens who have complied with the conditions of the law. The alien is supposed to have resided in France with the permission of the government, from the fact of his name and domi- cile having been registered with the ministry of the interior, as required by the police regulations from all residents. Debate in Corps Législatif on the Army Bull, December, 1867. In the recent discussion on the law for the reorganization of the army, M. des Rotours proposed the following amendment to the first clause of the bill : — “Persons born in France of foreign parents, and having had their 1M. Demangeat, in his note to M. Foelix’s Droit International Privé, doubts whether “la grande naturalisation ’’ still exists, as by the decree of Feb. 2, 1852, all electors are eligible to seats in the Corps Lésislatif, and the senate is composed of such citizens as the emperor may please to select ; and he cites Prince Poniatowski as an instance of a citizen naturalized by imperial decree and promoted to the senate without any special law. APPENDIX. 327 residence there, will be subjected to the recruiting law in the year following that of their majority. “Those among them who wish to preserve their character of for- eigners will make declaration thereof, and shall be admitted into the foreign legion.” Maréchal Niel, the minister of war, spoke in favor of the naneiie of this amendment, and stated that the conscription ought at all events to be extended to the sons born in France of aliens themselves born in France, and who, by the law of 1851, were declared to be Frenchmen, unless they selected the nationality of their fathers on attaining their majority. Objection was, however, taken to making such an alteration in the laws affecting the nationality of aliens by means of a clause intro- duced into an army bill; and, on M. Baroche, minister of justice, undertaking that the matter should receive the careful attention of the government, M. des Rotours withdrew his amendment. Number of English subjects who, from 1851 to 1861, obtained authority to establish their domicile in France, and of those who, during the same period, were naturalized as Frenchmen : — Années. a * Naturalisations. 1851 8 _ 1852 6° = 1853 6 1 1854 6 _ 1855 5 1 1856 3 _ 1857 9 _ 1858 24 _— 1859 13 _— 1860 9 2 1861, J: anvier ® ‘Avril. _3 = 92 4 For further information respecting French uaturalization, see Foelix, ‘Droit International Privé,” already cited, and “Revue de Droit Frangais et Etrangers,” par MM. Foelix, Duvergier, etc., Vol. XII. p. 321; Article, “De la Naturalisation Collective et de la Perte Col- lective & la Qualité de Francais,” par M. Foelix, and Vol. X. p. 446 ; j “Des Effects de la Naturalisation,” par M. Foelix; and “ Dictionnaire de Droit,” par M. Dalloz, “ Naturalisation.” 328 A TREATISE ON CITIZENSHIP. [Translation.] COMMUNICATION FROM M. TREITT, LEGAL ADVISER AT PARIS TO THE BRITISH EMBASSY IN THAT CAPITAL. The questions propounded by the foreign office are the following :— “What constitute the disabilities to which resident aliens in France are subject according to the law of that country ?” There is a distinction to be made: (1) Between simple residents in France; and (2) Between aliens admitted by the authority of gov- ernment to establish their domicile in France. The law considers as aliens those persons who are born of foreign parents, whether in a foreign country or in France, who have not been naturalized. The condition of aliens has varied according to the different legis- lations which have existed in France. $1. Aliens simply residing in France, and having neither re- quested nor received authorization to establish their domicile in France. Their capacities. — All aliens without the least restrictions have in France the right to succeed, to dispose of, and to acquire property ; there is but one distinction between movables and immovables; the equality between national and foreign is absolute, whether the aliens be within or out of France. This state of things exists since the law of the 14th of July, 1819, which abrogated the articles of 726 and 912 of the Code Napoléon, and abolishes the rights aimed at stran- gers, such as the rights of aliens, etc. Nevertheless this law contains one single restriction, which is equitable: In THE cass of a division of a succession between alien and French co-heirs, the interests of the French claimants will pre- vail; they can mortgage, alienate, and dispose of, under all contracts permitted by the law. They have the right of prescription. Commerce and industry are absolutely free to aliens; they exer- cise industrial rights equally with denizens, and can obtain every APPENDIX. 329 concession, even that of mining interests. Industrial, artistic, and literary property have all been subjects of national treaties. In the limits of the corporations where aliens reside, they participate in cer- tain community possessions, such as the use of pasturages, the wood of the forests, etc., belonging to the corporations. In a word, it may be said that in all that concerns the absolute status, and the right of property, the condition of aliens is identical with that of the French themselves. As to personal status they enjoy all the family rights of father, son, and spouse. They have the right of hunting, fishing, and carry- ing arms. They have the liberty of worship and individual liberty, and they may publish their opinions as freely as the French themselves. Accredited authors maintain that they can establish a legal family by adopting children according to the laws of France; that they may be tutors, and enjoy all the rights by which the law for protection’s sake surrounds the family. , Their inabilities consist in this: All aliens are excluded from per- forming political or governmental functions. They cannot be wit- nesses in certain authentic acts because the law says: “ Witnesses must be Frenchmen, of age, of masculine sex, etc.” They cannot be arbiters in suits at law, because arbiters in fact are temporary judges. Aliens must have special authorization to exercise pharmacy, sur- gery, or medicine. Aliens are interdicted from public employments, such as priests or ministers of different denominations, postmasters, and other positions exacting an oath to be given to the chief of the state; that is why aliens can neither be lawyers, notaries, guardians, etc., etc. They constitute no portion of the national guard of the army, nor do they serve’ on juries. If aliens are pleading in a court of justice the defendant can demand the caution judzcatum solvi, unless there is a question of commercial matters in which this surety does not exist. Before the recent abolition of writ of arrest, strangers’ arrests might be. In case of failures, aliens enjoy the same privileges as Frenchmen, except that they are not permitted to make a surrender of their prop- erty to their creditors, thereby releasing themselves from their just debts. Eminent jurists think that even a state of war does not deprive 330 A TREATISE ON CITIZENSHIP. the alien of his right of action against a Frenchman, before the tri- bunals of France, for obligations contracted with the alien. In civid matters the French tribunal can refuse its jurisdiction to two aliens, but in commercial transactions two aliens have a right to invoke French justice in every case. In fine, the law of 3d of December, 1849 (art. 7), authorizes the Government to expel from the territory of the empire all aliens whether travelling through or residing there. This right of the Gov- ernment is arbitrary and absolute. §2. Aliens domiciliated, or admitted to exercise civil rights by governmental authority. An alien, unless having obtained extraordinary letters of naturali- zation, only accorded on occasions of exceptionally great services ren- dered, can only be naturalized in France ‘after a residence of ten years, dating from the day the Government accorded him domicilia- tory rights. The admission to domicile removes certain disabilities attached to one who is merely a resident. The admission to domicile does not abrogate the status of alien, but it confers on children born in France of foreign parents the right, on reaching their majority, to assert their status of Frenchmen without further formality than to submit to the dispensation of French laws, such as recruiting service, etc., etc., according to the ninth article of the Code Napoléon. Aliens admitted to domicile enjoy all civil rights : such are the formal terms in the thirteenth article of the Code Napo- léon ; it results that even before the law of the 14th July, 1819, reported above, the alien who is domiciliated is in a position to receive, to dispose of property, etc. ; as a Frenchman, he can take out proceed- ings in justice without being subject to the surety judicatum solvi. He is admitted to the privilege of transferring his property to his creditors, thereby liberating himself from all his debts. Before the abolition of #rit of arrest, the domiciled alien was subject only in the same cases as Frenchmen, and he could exercise the writ of arrest against aliens. Te be brief, the domiciliated alien, except in political rights, enjoys the same civil rights as a denizen ; nevertheless, as he is always an alien, he cannot be a witness in certain authenticated acts, or be arbiter, since arbitrage is a jurisdiction. APPENDIX. 331 The domicile acquired in France does not absolve the alien from the obligations which personal status in his own country imposes on him, or of his obligations to his native country. An alien may be deprived of the right of domicil by the Government on a notification of the council of state. But notwithstanding the admission to dom- icile, the right of expulsion embodied in the law of 3d December, 1849, remains entirely in the hands of the Government. Certain countries have made particular treaties with France, secur- ing to themselves the enjoyment of civil rights. Thus a treaty with Sardinia of the 24th of March, 1760, dispenses Sardinian subjects of the surety judicatum solv. There are other treaties which reserve to foreign countries negotia- tions with the most favored nation. But similar treaties are almost superfluous, considering the small number of disabilities to which aliens are subject in France, and which appertain almost entirely to political functions, which involve the taking of an oath to the sovereign. From what has been said, it may be fairly concluded as a consequence of the progress of legisla- tion and of jurisprudence, that there exists but little difference be- tween aliens who have a resident domicile, ‘and native Frenchmen, that aliens are no longer subject to the surety judicatum solvi, and that their children born in France have greater facilities to acquire the privileges conferred on Frenchmen. To sum up: the privileges of an alien are regulated by the laws of his own country ; his personal status follows him always. But in France this alien enjoys as a denizen the advantages of all contracts real or personal recognized by the French law. From any point of view, the condition or status of an alien, whether resident or domiciliated, differs very little at this time from the con- dition of the Frenchman. Jurisprudence tends continually to ameliorate the condition of aliens; they are only refused rights which are expressly denied by laws not yet modified ; and they enjoy absolutely all the rights and privileges by which they are invested by the Law of Nations. INDEX. A. ABSENCE, effect of temporary, on law of United States with regard to the duration of residence necessary to acquire naturalization, 78, 79. temporary absence insufficient to prove change of domicile or nationality, 141. ADOPTION, of child, conferred on him the citizenship of adopted father, 22. law of state of, one determining cause of change of national character, 44. country of, has control of naturalization, 46. supplants the mother country, 49. owes protection to personal and property rights of her adopted citizen, in territory of country of origin, 67. exception as to real property, 7b. obliged to secure from country of origin reparation for injury to her naturalized citizen, 68. character of citizen or subject of country of, can only be acquired by naturali- zation, 85. ALABAMA, who may be citizens of, under Constitution of 1875, 258. aliens entitled to same protection of law as citizens, 1b., note (1). rule as to alien enemies in, 2d. declaration of intention to become citizen of United States is qualification for voting in, 306, 307. ALGERIA, till within short period, Jews in, were not subject to French laws, 124. ALIEN, child of, born within jurisdiction of state, may be citizen thereof, 7. citizenship a privilege to an, 8, 44. only subject to dominion of a state when within its territory, 8. child of, domiciled in Italy ten years, considered a citizen, 10. lack of parent’s domicile for that period constitutes child an, 7d. definition of the word by Aristotle, 7b. and note (8), 11. rights and privileges conceded to, in Athens, 11. who deemed, under treaty of peace between England and United States, 19. methods, under Roman law, by which citizenship might be acquired by, 25. acquires citizenship by naturalization only as favor, and on compliance with certain conditions, 44. marriage of native woman of France to, works forfeiture of her nationality, 49, 148. but she may recover it by residence in France, 49, 148. 334 INDEX, ALIEN — continued. right of conferring citizenship on, claimed by every state, 50, 61, 62, 63, 77. making permanent domicile in country, and acquiring full rights of citizen- ship, not liable to claims of state of birth, originating after naturaliza- tion, 50. possessing letters of naturalization in Spain, considered a Spaniard, 58. coming voluntarily into country, subjects himself to its laws, 4b., 59, 109, note. and is entitled to its protection so far as safety of the state permits, 59. friend coming into a state imports addition of material wealth or physical skill to its resources, 7. every state in Christendom accords right of naturalization to, 62, 91. state may regulate local obligations of, and confer privileges and immunities upon, 62. declaration of, of intention to become citizen, does not change national char- acter till final admission to citizenship, 69. in Great Britain, denizen occupies intermediate position between natural-born subject and, 106. ' in France, alien, twenty-one years of age, having permission to be domiciled, could acquire citizenship after three years, 107. at present time, alien does not become Frenchman by birth on French soil, 108. domiciled alien cannot with impunity be found in arms against country of origin, 2. under United States Constitution, naturalized aliens enjoy same rights as natural-born citizens, 122. exception as to offices of president and vice-president, 70. distinction, in United States, between citizens and domiciled aliens, 126. controversies to which aliens are parties adjudicated, in United States, by federal courts, 20. reason for this, 7d. defined, 7b., 237, 238. in all but constitutional governments, power to naturalize alien rests with the autocrat, 129. explanation of Ze droit d@aubaine, in France, 134. in France, could not transmit property by succession, 20. the word aubains explained, 7b. how admitted to French citizenship under constitution of 1798, 136. after this constitution, alien desiring citizenship had to declare intention, 70. history of the civil status of aliens in France, under ancient and modern law, 137. of long residence in France, married there, and with children born to him there, still an alien, 138. French woman married to, follows status of husband, 140, note (1). alien woman marrying French citizen acquires French citizenship or nation- ality, 148. and this nationality continues after death of husband, 7b. after dissolution, by death or legally, woman can resume nationality of origin, 7b., 149. who deemed, in Virginia, 167. ' naturalized, in France, obtains same rights and privileges as native, 151. naturalization of, “‘ by operation of the law of France,” discussed, 155. the various classes of, who may be so naturalized, 7. INDEX. 335 ALIEN — continued, status of aliens domiciled, but not naturalized, in France, discussed, 155-157. not on same plane as citizen of France, in reference to civil rights, 156, owes local allegiance during residence in foreign country, 159. in United States, naturalization proceedings liberally construed, 215. jurisdiction of the United States over, 237. , who are, in United States, ib. decision of the Supreme Court of the United States, maintaining right under treaty stipulations of alien heirs to inherit real estate situate in state whose law is contra, 244, 245. qualification and disqualification of, for naturalization, 292. ALLEGIANCE, See also ExparriaTIon. when yielded by individuals to the state, entitles them to national protec- tion, 4, 85. intimate connection between native country-and, 13. only due to sovereign by subject in return for protection afforded, 14. and protection reciprocal, 7b., 108, 142, 158. to government under which man is born not obligatory, 15, 65. perpetual, denied by United States government, 15, 65, 121, 300. of persons, under separation of England and the United States, 19. double, rejected by United States and English courts, 7. jurisdiction founded upon natural and local, 47, 48. natural, definition of, 48. a creature of civil law, 7b., 65. not countenanced by the law of nations, 48, 65, 66, 159. doctrine of perpetual, abandoned by Continental nations since French Revo- lution, 48, 65. where due by individual determined by his nationality, 55, 158. not inalienable under law of nations, 66, 159, 300. privilege of changing allegiance denied by common law of England, 66, 121, 122, 158, 159. naturalized person considered as incorporated with naturalizing country, for purpose of, 74. qualification of this statement, 1b., 75. not destroyed by banishment, 75. perpetual, in England, 77, 121, 158, 159. how far states that do not hold this doctrine may go in enforcing obligations originating before naturalization, not settled, 77. naturalization frees persons from allegiance to mother country, 85. individual can have but one, 103. oath of, in United States, when taken, is equivalent to judgment admitting to citizenship, 120. modern law in Great Britain permits renunciation and resumption of, alter- nately, 121. principle of English common law, that consent of state is necessary to enable citizen to throw off, 122. individual cannot renounce allegiance to country in which he continues to reside, 7b. “double allegiance” not a synonyme for ‘double citizenship or nationality,” 157. defined by Coke, 158. Story, 7. 336 INDEX. ALLEGIANCE — continued, doctrine of perpetual, abandoned by Great Britain, 158. local allegiance, under common law of Great Britain, described, 159. permanent and temporary allegiance defined and distinguished, 7b, how far doctrine of double allegiance can be carried, 70., 160. oath of, first tie which binds citizen to state, 160. is allegiance of children of American citizens, born in foreign country, still due to that country while within its territory, 193, 234, 235. not transferred to foreign government without change of domicile, 193. formerly in Europe subject could not throw off, at his pleasure, 238. modern practice to the contrary, 7b., 239. rule as to, under treaties with United States and sundry European countries, 239. may be renounced, dissolved by mutual consent, regulated, or restrained, 300. ARABS subject to France are not French citizens, and their status determinable by Mussulman law, 124, 125. ARIZONA, ; example of collective naturalization in, 130. ARKANSAS, who may be citizens of, under Constitution of 1874, 258, 259. persons of color are not citizens of, 258, note (1). “citizen” means “inhabitant,” 258, note (2). son made citizen by naturalization of father, 7b. when rights of citizens not to be affected by acts of comity between States, 2b. power of United States forces to arrest citizens of, 2d. controversies between aliens, and jurisdiction of courts, 7d. toll-bridges free to citizens of county, 2d. foreman of grand jury must be citizen of state, id. as to alien suing jointly with citizen, 7d. citizenship of parties as affecting jurisdiction of United States Courts, 7d. rule as to forfeiture of rights of adopted citizen of foreign government who expatriates himself, 2b. voters qualified by declaration of intention to become United States citizens, 306, 307. AUSTRIA, dispute with United States in Koszta’s case, 68-71. Tousig's case, 69. subjects of, leaving dominions of emperor without leave, and with intention never to return, forfeit all civil rights, 71. establishment of two general governments in the Austro-Hungarian monarchy, 209. B. BANISHMENT does not destroy citizenship, under international law, 74. allegiance, 75. BASTARD, law governing mother of, at birth, impresses him with national character, 51. BASTARDY, illegitimate child takes status of mother, 7, note (3). INDEX. 337 BAVARIA, tule of, as to nationality by parentage, 28, note. BELGIUM, rule of, as to nationality by parentage, 28, note. statement of facts, judgments, &c., in the affair Bauffremont-Bibesco, tried at Charleroi, 88, 89. BIRTH. See also Bastard ; CHILD ; PARENT AND CHILD. may confer citizenship, 7, 158, 238, 299, 300. rule in England and United States, 7, note (2), 9. Spain, 7, note (2). citizenship, as result of birth within territorial jurisdiction, not exclusive under laws of Great Britain and the United States, 8 place of, test of nationality, 10, 152. among the ancients, did not of itself confer citizenship, 12. under feudal ideas, nationality determined solely by place of, 7b., 27. place of, must be within king’s dominions, to constitute subject, 18, 158, 238. time of, essential in defining subject, 18, 158. Roman citizenship conferred by, 20, 22. determines national character, 26, 152, 299. law of nation to which individual belongs, the first personal law to which he can be subjected, 27, 51. within territory of United States, and subjection to jurisdiction, necessary to constitute citizenship by, 32. country of, cannot enforce upon individual claims originating after his natu- ralization in another country, 50, 77, 122. domicile of birth being abandoned, and new one acquired, on second one being given up, the first reverts, 100. British doctrine that allegiance, as result of, follows individual during life, 121, 159. nativity furnishes rule, both of duty and right, as between individual and government, 126. nationality resulting from, constitutes right acquired by wife and children, 147. on board American vessel confers citizenship, 300. BODY POLITIC, what constitutes, 2, 3, 126. individual being 4 member of, the state receives an injury when wrong done to her citizen, 60. BORNEO, establishment of consular courts, by treaty with United States, 113. BRAZIL, law of, as to parentage conferring nationality, 28, note. law governing civil status of aliens residing in, applied to children of aliens born in, during minority, 28, 29. but inapplicable after majority, 29. BURDEN OF PROOF. See also EVIDENCE. in cases of renunciation of acquired nationality, and resumption of original, 68. applicant for admission to California legislature has, when his citizenship is denied by his opponents, 83. on individual claiming abandonment of native country must be clearer than in controversy under claim in which each nationality is foreign, 101. 22 338 INDEX. C.. a? CALIFORNIA. See also Curna. Le statement of facts and decisions in Desty’s case, 81-84. ¢ exaniple of collective naturalization in, 129, 130. y rights of citizens of, under Constitution of 1879, 259. liberty of speech and of the press in, 70, rule as to libel, 7b. provision as to venue in cases against newspapers, 7)., 260. provision against the granting of irrevocable special privileges, 260. who may be a voter in, 7). discrimination against Chinese, 7d. provision as to restoration to citizenship of persons convicted of infamous crimes, 7. property rights of aliens of white race or African descent provided for, 40., 261. regulations as to coolie labor and the immigration of Chinese, 261. the Fourteenth Amendment discussed, 7b., note. effect of the Fifteenth Amendment in, ib. invalidity of discriminating legislation against Chinese, 294, 295, 296. CERTIFICATE OF NATURALIZATION. See NaTuRALIZATION. CHILD. See also Bastard; BasTaRDY. of alien may acquire citizenship by birth, 7. by parentage, 7b., 17, and note. how acquires citizenship in Bavaria, 28, note (1) ; in Belgium, 2. ; in Brazil, ib. ; in France, 9, 28, 107,108 ; in Great Britain, 28, note (1); in Italy, 10; in Portugal, 28, note (1); in Prussia, 9; in Saxony, 28, note (1); in Spain, 7d. ; in United States, 7b. ; in Wurtemburg, 7d. moral relations of parentage of, connects child with body politic, 12. retains domicile of origin during minority, 13, 141, but can change on attaining majority, 13, 141, 154. reputed native citizen of father’s country when born at sea, 15. out of the country, 7. in army of the state, 7b. in house of minister at foreign court, 15,18. legitimate, rule in European states as to citizenship of, 17, and note (5). rule in Great Britain and United States, 7b. follows condition of parents in determining nationality, 28, 29, 51, 238. but may choose nationality of place of birth, 29. of foreign parents, born on French soil, may claim quality of Frenchman in year suceeeding majority, 107. ‘born of alien parents on French soil may become citizen of France on com- pliance with Art. 9 of Civil Code, 108. follows status of father from time of birth, 147, 238. and has nationality which no one can change without his consent, 147, 148. -y how children of ex-Frenehmen, born in France, may regain French citizen- ‘ ship, 149. has nationality ofits father at moment of birth, 152. status of children born anterior to naturalization of father, 152 et seq. those who have attained majority preserve nationality of origin, 152, 154, but minors take nationality of father, 152. INDEX. 339 CHILD — continued. of citizen of United States, born out of United States, considered citizen of that country, 301. so as to children of naturalized citizens, 301. CHINA, establishment of consular courts in, by treaty with United States, 113. census figures in relation to Chinese in United States, 174. operation of original draft of Fifteenth Amendment on right of suffrage to natives of, 203. naturalization of Chinese in United States recommended, 227. but this impossible under existing law, 7b., 292. native of Mongolian race is not a ‘‘ white person” in the United States, 227, note (2), 292, the question of naturalization of Chinese debated in the Senate, 229. civil rights of Chinamen in United States, how protected, 230. Chinese may be excluded from testifying where a white person is a party, 253. same when negro is party, 70. special legislation operating unequally against Chinese, a violation of Four- teenth Amendment, 294, 295. CITIZENS. See also ALLEGIANCE ; CITIZENSHIP ; WATURALIZATION. definitions of the word, 5, 6, 7, 10, 11, 12, 19, 26, 32, 36, 88, 128, 124, 163, 178, 189, 202, note (2), 299, 300. Indians not necessarily, in the United States, 5. recognized distinction between ‘‘ citizen ” and ‘‘ subject,” 7., 40. slaves cannot be, 5, 6. many different classes of, in Athens, 10, note (3), 11. their rights and privileges, 11. division of, in Roman law,'19. methods of becoming, 20, 22. all subjects of Roman empire declared, 25. freedom, city, and family essential to status of Roman, 26. being bound to society by duties, share also advantages, 7b. quality of, granted by naturalization, 27, 117. argument on meaning of the word in a Pennsylvania case, 32. use of the word in sundry treaties, 1b. meaning of the term in treaty of July 4, 1868, between United States and Mexico, 36. are those invested by municipal constitution and laws of a country with right of membership in body politic, 70. : of other countries may change nationality, and join new political societies, tb., 87. who are, 38, 163. varies in different states, 38. Aristotle’s definition, 38, 39, 163. Tremenheer’s criticism of, 39. rules applicable to native citizens also applicable to naturalized, 58, 167. the title civitas indelible under Roman law, 53. new citizen the exclusive creation of civil and municipal laws of country which adopts him, 54, 63. emigrating to another country, and there acquiring citizenship, is free from control of native country, 54, 55. 340 INDEX. CITIZENS — continued. distinction between personal rights and property rights of naturalized, 67. personal rights of naturalized, in country of origin, are inviolable, 7b. and country of adoption owes protection, 7. individual cannot be citizen of two states at one time, 103. how strangers became, in France, under Constitution 22d Frimaire, year VIII., 107. theory that naturalized citizen is liable to lose his acquired citizenship if found within power of native sovereign, denied, 114, 115. he can be arrested for debt or crime in country of origin, but not for breach of duty growing out of his abjured allegiance, 115. how constituted, in United States, 117. distinction, in United States Constitution, between “citizen” and ,‘‘ natural born citizen,” 123. definition of ‘‘ citizen” in London, 7b. distinction, in London, between “citizen” and “ inhabitant,” 7d. “citizens,” in American law, used to convey idea of membership in a nation, 124, common inaccuracy in use of the word, 7d. distinction, in France, between citoyen and national,