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STUDIES IN CONSTITUTIONAL LAW
A TREATISE ON AMERICAN CITIZENSHIP
BY
JOHN S. WISE
EDWARD THOMPSON COMPANY
NORTHPORT, LONG ISLAND, N. Y
1906
INTRODUCTORY
It is believed that in it will be found every decision of the Supreme
Court upon the questions discussed.
No effort has been made to pad the volume with the arguments pro and
con upon points decided, or to cite opinions on the same point,
distinguishing one case from another.
The principles decided have been given their appropriate places. The
discussions concerning why one case decided did not fall within the
principle decided by another case, have been purposely omitted as
tending to make a volume of case law as distinguished from one of legal
principles. Such discussions tend to befog the legal principle decided
rather than make it plain, and to weary even the professional man. They
must be encountered when the authorities cited are examined.
The whole object of the author has been attained if he has succeeded
in putting the origin, nature, and obligations of the citizen in form
sufficiently attractive to enlist a more widespread understanding among
educated Americans of their rights and obligations as American citizens;
for the present ignorance of our people and the confusion in their
apprehension of the subject would be something incredible in older
countries.
In the hope that the need of the book is real, and not imaginary, that
it may be accepted in a spirit of charity, and that some one better
equipped may soon arise to improve upon it, it is respectfully submitted
to the profession and to the public.
JOHN S. WISE.
New York.
TABLE OF CONTENTS
NOTE: Page numbers listed are those from the original print
edition. They are included for reference purposes only.
CHAPTER 1. OF CITIZENSHIP GENERALLY.
PAGE
Definition of Citizenship.......................................... 2
American Citizenship-Its Origin and Kinds......................... 4
State Citizenship................. ................................ 5
Citizenship of the Northwest Territory............................ 13
Citizenship of the United States.................................. 17
Qualified Citizenship in Territorial and Acquired Possessions..... 34
Hawaii - Its Government............................................ 37
Puerto Rico........................................................ 39
Guam.............................................................. 42
Philippine Islands................................................ 42
Citizenship in Our Insular Possessions............................. 46
CHAPTER 11. HOW AMERICAN CITIZENSHIP MAY BE ACQUIRED.
In the Nation:
By Birth...................................................... 51
By Naturalization............................................. 53
Length of Residence Necessary... ............................. 55
In a State:
By Birth...................................................... 61
By State Enactments........................................ ... 61
By Federal Enactments......................................... 62
Outside the Nation or States...................................... 62
Of the Persons who May he Citizens................................ 63
National and State Citizenship Not Necessarily Coexistent......... 66
CHAPTER III. OF THE OBLIGATIONS AND DUTIES OF THE CITIZENS TO THE NATION
AND THE STATE.
Allegiance........................................................ 68
Different Kinds of Allegiance..................................... 69
Formal Compact Not Necessary to Create Allegiance................. 69
Of Dual Allegiance................................................ 70
Of Patriotism..................................................... 73
Of Treason........................................................ 74
Of Dual Treason................................................... 80
Elements of the Offense .......................................... 83
CHAPTER IV. OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE CITIZEN.
In General........................................................ 92
Source of American Plan of Government and Rights of Citizenship... 93
Rights of Citizens of the States.................................. 98
State Bills of Rights............................................ 100
National Declaration of Independence............................. 104
The Federal Constitution......................................... 106
Rights, Privileges, and Immunities Granted or Guaranteed to
the Citizen of the United States ............................ 111
Taxation of the Citizen.......................................... 152
Of the Immunity of the Citizen from Arrest, While Attending
Congress, and in Going to and Returning from the Same,
and from Being Questioned in any other Place for any
Speech or Debate......................................... 153
Of the Immunity of the Citizen from State Interference with
the Regulation of Commerce with Foreign Nations. and
among the Several States and with the Indian Tribes....... 154
Right of the Citizen to the Writ of Habeas Corpus................ 159
Of the Immunity of the Citizen Against Bills of Attainder and
Ex Post Facto Laws........................................ 163
Of the Immunity of the Citizen Against StAte Lawn Impairing
the Obligation of Contracts............................... 165
Of the Right of the Citizens of Each State to All the Privileges
and Immunities of Citizens in the Several States.......... 167
Of the Federal Guarantee of Extradition of Fugitives from
Justice........................................... 174
The Guarantee to the Citizen that Persons Held to Service or
Labor in one State and Escaping to another Shall Not Be
Discharged Thereby from Such Service or Labor but Shall
Be Delivered up............................................ 178
Of the Federal Guarantee to the Citizen that His State Shall
have a Republican Form of Government...................... 178
The Immunity of the Citizen Against any Law of Congress Respecting
an Establishment of Religion or Prohibiting the
free Exercise Thereof...................................... 185
Of the Right of the Citizen to Free Speech........................188
Of the Freedom of the Press.......................................189
Rights Guaranteed by Amendments II to VIII, XI, and XII...........190
CHAPTER V. PRIVILEGES AND IMMUNITIES UNDER THE WAR AMENDMENTS.
The Thirteenth Amendment.......................................... 192
The Fourteenth Amendment.......................................... 194
Of the Regulation of Ordinary Business Pursuits by the states..... 211
The Right to Regulate Woman's Rights.............................. 214
The Right to Regulate the Practice of Professions................. 215
Of Suffrage....................................................... 215
Reduction of the Representation of the States In Congress......... 223
The Right of States to Regulate State Procedure Especially
Concerning the summoning and Constitution of Juries............... 235
Of the Power of the State to Control and Regulate the Business
of Corporations In the State...................................... 241
Its Right to Control the Conduct of lndividuals and Bodies of
Citizens In Public Places......................................... 243
Of the Power of the State to Regulate State Taxation.............. 246
Of the Right of the State to Control &ate Elections............... 249
Due Process of Law................................................ 249
Of the Equal Protection of the Law................................ 254
The Fifteenth Amendment........................................... 257
CHAPTER VI. OF THE PROTECTION OF CITIZENS ABROAD.................. 261
CHAPTER VII. OF EXPATRIATION, ALIENS, AND WHO MAY NOT BECOME CITIZENS
Expatriation...................................................... 263
Aliens.............................................................267
Immigration of Chinese.............................................275
CHAPTER 1.
OF CITIZENSHIP GENERALLY
It is not proposed, in this work, to cast back in the history of
government, to the ethnic origin of the terms citizen and citizenship,
or to institute of any comparisons between the grade or quality
citizenship enjoyed by those who are subject to the jurisdiction of the
United States, or the States composing it, and that possessed by
citizens of other governments, ancient or modern. Such researches and
comparisons, however interesting they might prove, would be almost
endless, and, in a book of this character, would tend to divert the
student from a study of the origin and nature of American citizen-ship,
national and state, without shedding any practical light upon the real
question to which the volume is addressed.
We shall therefore proceed to ascertain the origin and define the
nature and quality of citizenship enjoyed by individuals who are subject
to the jurisdiction of the United States, either as citizens of the
United States, or as citizens of some particular component State,
Territory, or possession of the United States.
CITIZENSHIP
Definition of Citizenship.
The latest approved definition of the term citizenship is that found
in the Standard Dictionary (1898), which describes, it as "the status
of a citizen with its rights and privileges." (1) The status of a
citizen implies the existence of -
[1] A political body established to promote the general welfare and
collective, as well as individual, rights of those composing it.
[2] Individuals who have established, or submitted themselves to the
dominion of, that political body.(2)
[3] Such benefit from, or participation in, the administration of
that political body by the individuals composing it, that they may be
designated as citizens, and not as mere subjects of a despot or an
absolute monarch under whom they have no voice in administration.
The same authority above quoted defines a citizen as "a member of a
nation or sovereign state, especially a republic; one who owes
allegiance to a government and is entitled to protection from it." That
definition is broad enough to make every subject a citizen of the
government to which be owes allegiance, and from which he receives
protection; but the term citizen, as it is commonly understood, implies
membership of a political body in which the individual enjoys popular
liberty to a greater or less degree.(3) It does not necessarily follow
from this definition, that the grade or quality or privileges of
citizenship must be identical in all citizens, even in republican
governments. In the Roman government, a citizen might or might not be
invested with all the civil privileges of the government.(4) In Many
cases arising under our system, it has been repeatedly decided that the
bestowal Of political Privileges upon an individual is not essential to
Constitute him a citizen(5)
Ordinarily the term citizen, applied to the individual unit in any
government, implies that he enjoys a greater degree of participation in
the affairs of his government than would be implied if he were referred
to as a subject.
In a constitutional monarchy like Great Britain, the individual units
composing it are referred to indifferently as citizens or as subjects.
In an absolute monarchy like Russia, the idea of subjection to the ruler
overshadows that of citizenship, and the individual subject is seldom
referred to as a citizen, except in diplomatic intercourse between his
government and other nations.
In a free democracy like the United States, where there is no
sovereign and no subject, the units composing the political body are
properly designated as citizens. This subject is discussed in a most
interesting way by the Supreme Court of the United States in the case
of Minor v. Happersett.(6)
American Citizenship - Its Origin and Kinds.
In the seventeenth and eighteenth centuries, the British government
planted or acquired thirteen distinct colonies on the continent of North
America, and governed them, prior to July 4, 1776, under the system of
English laws as applied by the colonial policy of Great Britain, with
George III as a constitutional monarch. Each of these colonies had been
founded or acquired separately and at a different time, and each was
governed under its own distinct charter or commission. The inhabitants
of all the colonies were British citizens or subjects. The several local
governments, under which the colonies respectively conducted their
domestic affairs, were not independent political societies, of which
they might be said to be citizens. While they were inhabitants of their
respective colonies, they were citizens of Great Britain, and their
local governments were mere dependencies, acting under concessions from
the parent government. A comparison of the several colonial
administrations of these colonies will make plain at once how different
were their several domestic administrations. The colonial organization
of Massachusetts was altogether different from that of Maryland; that
of Virginia altogether different from that of Rhode Island. The charters
of the colonial organizations of South Carolina and New York had little
resemblance to each other, and so on with all the colonies.
The mother country, while exacting paramount allegiance to herself
from all her colonies, had, in her dealings with them, permitted each
to indulge its idiosyncrasies in matters of local concern, with so
little regard to uniformity of administration, that the thirteen
colonies grew up with little of similitude in their charter rights, and
little in common in their local forms of government. What they had in
common was their British citizenship, and their common grievances
against the parent government, which, as they conceived, had deprived
them of the right of local self-government. This British citizenship,
in common, was the germ of their united action, and afterwards became
the foundation of a new citizenship, known as American citizenship, on
which all citizenship, whether of the United States, or of the States
and Territories and possessions subject to its jurisdiction, now rests.
And this brings us to -
State Citizenship.
The thirteen independent American colonies by a joint Declaration of
Independence dated July 4, 1776, asserted their common purpose to
maintain that they were free, independent, and sovereign States. That
declaration, if it could be successfully maintained, carried with it as
a result, that their respective inhabitants were no longer citizens or
subjects of Great Britain, but were thenceforth citizens of the States
in which they respectively resided. England resisted this contention
until September 3, 1783, at which time she entered into a definitive
treaty of peace with the representatives of these colonies, recognizing
the colonies, name by name, as free, independent, and sovereign States.
After thus gaining their independence, some of the States proceeded
to adopt new constitutions forthwith, conforming their government to
their changed conditions; while others found their royal charters so
well adapted to a free government, that they continued to live under
them for many years. The most remarkable instance of this is the State
of Rhode Island, which continued to govern itself under the forms of its
royal charter until the year 1843. Even then, the attempt to adopt a new
constitution resulted in a domestic conflict, familiarly known as Dorr's
Rebellion, for a full account of which see the opinion of the Supreme
Court in the case of Luther v. Borden.(7)
While the revolutionary struggle lasted, the colonies, calling
themselves States, cooperated with each other through the device of a
league under the name of the United States, represented by a Continental
Congress. The objects for which this league and congress were created,
were to assert and prosecute measures in common for attaining the
independence of the States. Through this league, they also bound
themselves by mutual obligations, not to negotiate for peace, or for any
other purpose, with the parent country, save through the appointees of
the Continental Congress; and the peace which was finally negotiated was
brought about by a treaty entered into on behalf of the United Colonies,
by commissioners appointed by the Continental Congress.
But the independence demanded by the colonies and the citizenship
recognized by Great Britain were the independence and citizenship of
thirteen sovereign and independent States, and not of any one national
political body. This could not have been otherwise, for the words
"United States," while they were employed in the Declaration of
Independence and in the Articles of Confederation under which the
revolutionary struggle was conducted, were manifestly used in a plural
sense, as expressing the States united, and the compact entered into
between the colonies shows, upon its face. that it was not entered into
to create a new political body reaching or operating upon the unit of
the citizen. All the powers possessed by the confederated government
were derived from and to be exercised upon and through the legislatures
which created it, representing States and not individuals. Any effort
of the federal authority to command or enforce allegiance to it directly
from the citizens of those States, save in a few particulars provided
for in the Articles of Confederation, would have aroused indignant
protests from the States, and would, perhaps, have resulted in a
dissolution of the confederacy.
The date insisted upon by the thirteen States, as that at which their
inhabitants ceased to be colonial subjects of Great Britain, and became
citizens of their respective States, was July 4,1776. The English
authorities, on the other hand, fixed September 3, 1783, the date of the
definitive treaty acknowledging the independence of the States, as the
true date from which to reckon.(8) This question has long since ceased
to be of any importance as bearing upon any property rights, and in so
far as it relates to whether State citizenship antedated national
citizenship, it makes no difference which date is assumed to be correct;
for the relations of the States to the federal compact were
substantially the same in 1776 as in 1783.
The Declaration of Independence affirmed that the United Colonies
ought to be free and independent States. The Articles of Confederation
were agreed upon by delegates November 15, 1777. After announcing a name
for the confederacy between the States, it proceeded to declare that
each State retained "its sovereignty, freedom and independence, and
every power, jurisdiction and right, which is not by this confederation
expressly delegated to the United States in Congress assembled." The
Congress was composed of delegates chosen annually, as State
legislatures might direct, and the delegates were maintained by the
States. In determining questions in the Congress, each State bad one
vote. The duty of raising their respective quotas of troops was imposed
upon the States, and the privilege of naming all officers of or under
the rank of colonel. The States undertook to supply all funds to the
common treasury, and the taxes for defraying the expenses of the
confederacy were to be laid and levied by the state legislature, each
State paying her proportion. There was no president or common ruler over
the confederacy of States, and the limited federal authority conferred
upon Congress by the Articles of Confederation was intrusted to the
control and direction of a committee of Congress.
Such was the confederacy existing between the States when Great
Britain acknowledged them as independent sovereign States. It requires
little argument to demonstrate that a mere agency such as this,
operating under a limited authorization and without any power to levy
taxes or draft troops, was not a political body entitled to claim that
any individual was its citizen, and while State citizenship necessarily
followed at once to the inhabitants of the colonies, respectively, upon
the acknowledgment of their independence, no citizenship of the United
States was recognized or even existed.
The writings of Mr. Hamilton and Mr. Madison, preserved in The
Federalist, written long after the acknowledgment of the independence
of the colonies, are full of complaints against the Articles of
Confederation, on this score. They are appeals for a change from this
condition, and urge upon the people to remedy these defects by adopting
the proposed constitution and creating the new citizenship. The
Constitution of the United States was proposed September 17, 1787, and
the operations of the government began under it March 4, 1789. The
Federalist papers were written in that interval, urging the adoption of
the Constitution by the States. In the fifteenth paper of The
Federalist,(9) Mr. Hamilton discusses " the insufficiency of the present
confederation to the preservation of the Union," as follows:
"The great and radical vice in the construction of the existing
confederation is the principle of legislation for states or governments,
in their corporate or collective capacities, and as contradistinguished
from the individuals of which they consist. . . . Except as to the rule
of appointment, the United States has an indefinite discretion to make
requisitions for men and money; but they have no authority to raise
either, by regulations extending to the individual citizens of America.
The consequence of this is, that although in theory their resolutions
concerning those objects are laws, constitutionally binding on the
members of the Union, yet in practice they are mere recommendations
which the States observe or disregard at their option. If we still
adhere to the design of a national government . . . we must extend the
authority of the Union to the Persons of the citizens the only proper
objects of government."
Again, in the twenty-third paper (10) the same illustrious authority
declared: "If we are in earnest about giving the Union energy and
duration, we must abandon the vain project of legislating upon the
States in their collective capacities; we must extend the laws of the
federal government to the individual citizens of America."
The above citations, which are but two of many, are sufficient to
demonstrate that under the peculiar organization of the United States,
as it was originally formed, the powers or authority of the general
government did not extend to individuals, gave in a few isolated
instances, and that consequently the only real citizenship was that of
States. Mr. Hamilton, in both his references to citizens, spoke of them,
not as citizens of the United States, but, as citizens of America,
doubtless adopting that form of expression as more correct in describing
the citizens of the States generally.
Until the ratification of the Constitution of the United States by
nine States, it was a nullity. New Hampshire was the ninth State to
ratify. The date of its action was June 21, 1788. Virginia and New York
ratified the Constitution a few days later, and before the date fixed
for commencing the operations of the government. Thus, for the first
time, there was such a thing as citizenship of the United States. That
citizenship did not extend to North Carolina until January 28, 1790, or
to Rhode Island until June 1, 1790, for those States delayed their
ratification until after the operations of the government had begun.
In the United States custom house at New York, one may see a list of
the vessels which entered the port of New York during the first year
after the Constitution of the United States went into effect, and in
that list, entered as vessels arriving from "foreign ports," are several
ships from Rhode Island.
Thus we see that, in eleven of the original States, State citizenship
antedated Federal citizenship over five years, and in two other States
nearly seven years.
Speaking of the interim between the acknowledgment of the independence
of the colonies and the adoption of the Constitution, John Fiske, in his
History of the United States, says:(11) "Perhaps the only thing that
kept the Union from falling to pieces in 1786 was the Northwestern
Territory, which George Rogers Clark had conquered in 1779, and which
skilful diplomacy had enabled us to keep when the treaty was drawn in
1782. Virginia claimed this territory and actually held it, but New
York, Massachusetts, and Connecticut also had claims upon it. It was
the idea of Maryland that such a vast region ought not to be added to
any one State, or divided between two or three of the States, but ought
to be the common property of the Union. Maryland had refused to ratify
the Articles of Confederation until the four States that claimed the
Northwestern Territory should yield their claims to the United States.
This was done between 1780 and 1786, and thus, for the first time, the
United States government was put in possession of valuable property
which could be made to yield an income and this piece of property was
about the pay debts. This piece of property was about the first thing
in which all the American people were alike interested, after they had
won their independence."
In the light of the above historical facts, it is not strange that
the discussions, prior to the great Civil War, on the question whether
paramount allegiance was due to their State, or to their Nation, by the
citizens of the States respectively, led to a difference of opinion on
that question between citizens.
Citizenship of the Northwest Territory.
The United States, as constituted under the Articles of Confederation,
having come into possession of the large unsettled territory above
referred to, by the cession of Great Britain and the subsequent cession
of their rights by the several States which laid claim to it the
Continental Congress undertook to pass, in 1787, the famous ordinances
laying down certain fundamental laws for the government of that
territory, and in States which, might thereafter be formed out of that
territory. The States of Ohio, Indiana, Illinois, Michigan, and
Wisconsin were subsequently erected and admitted into the Union, and
those five embrace what was then known as the Northwest Territory.
Of the action of the Continental Congress in assuming to pass these
ordinances, Mr. Madison says in the thirty-seventh paper of The
Federalist, (12) that in proceeding to form new States, to erect
temporary governments, to appoint officers for them, and to prescribe
the conditions on which such States should be admitted into the
confederacy, the Congress acted "without the least color of
constitutional authority." The justification for this action stated by
him was: "The public interest, the necessity of the case, imposed upon
them the task of overleaping their constitutional limits." From this
necessity of violating the constitutional authority, he proceeded to
argue: "But is not the fact an alarming proof of the danger resulting
from a government which does not possess regular powers commensurate to
its objects? A dissolution or usurpation is the dreadful dilemma to
which it is continually exposed."
Whether the Continental Congress did or did not possess power to enact
the ordinances of 1787, the necessity that some one should take steps
to that end was manifest to every one, and the action of the Continental
Congress was not only acquiesced in by all the States, but the ordinance
has come down to posterity as one of the wisest charts of government
ever framed. This territory had come into the possession of the United
States under the following circumstances:
When the treaty of peace was negotiated between England and the United
States, the boundary lying between the English possessions and the
country whose independence was acknowledged, was fixed as running
through the centres of Lakes Ontario, Erie, Huron, and Superior, and
thence westward through the
Lake of the Woods to the Mississippi, whereby the vast and rich domain
Iying in between the Great Lakes and the Ohio and Mississippi rivers
became a part of the country acknowledged as independent. Settlers
rapidly flocked to that territory, and conditions there called for the
organization of some sort of political body for its government. Neither
the Federal government, nor the State of Virginia, had been able to
discharge their debts to Revolutionary soldiers, and Virginia, before
the cession of her territory to the United States, had issued many
military land grants in this territory to her soldiers. When the
Continental army at Newburg threatened to march upon Philadelphia in the
year 1783, because it had not been paid, its violence was allayed by the
assurances of General Washington that he would do all in his power to
induce the government to make provision for discharging its obligations
to the soldiers, in part at least, by military land grants in the
Northwest Territory. Pursuant to that pledge, Congress did make large
land grants in the Northwest Territory, in that portion now known as
Ohio, to Revolutionary soldiers. After the armies were disbanded, large
colonies of people from the original States promptly settled in the Ohio
territory, under the leadership of Paul Carrington of Virginia, and
General Rufus Putnam of Connecticut, and thus it came about that at the
time of the passage of this famous ordinance, a considerable and
representative body of unorganized people were in occupancy of the
Northwest Territory, demanding some form of government and some right
of representation.
The ordinance passed by the Continental Congress pursuant to this
urgency, announced certain fundamental articles which were to rest upon
any and all governments formed in the territory, and declared that the
obligation to adopt these fundamental principles should be regarded as
a compact between the original States and the people and States in said
territory, and that, having been adopted, they should forever remain
unalterable, unleas by common consent.
It will be noted, that Congress was so doubtful of its own powers,
that it made the compact obligatory, not between the United States and
the people of this territory, but between the original States and the
people.
It is unnecessary to enumerate at length the fundamental principles
laid down for the government of the Northwest Territory.(13) The Act
provided for the erection of the territory into a district; for a law
of descents; and for a form of civil government, under a governor and
secretary appointed by Congress. It gave the people of the territory the
light to elect a general assembly by popular election. In prescribing
the qualifications of a candidate, and of voters, it required that they
should have been citizens of one of the United States for a certain
time. It gave the territorial legislature the right to elect a delegate
to Congress, who was to possess a seat with the right of debate, but no
vote. Without going into further details of this government, it is
sufficient to say that it was acceptable to the people and a remarkable
spectacle of government. For the United States, which had no citizens
of its own, undertook to create and erect a government of citizens, and
to prescribe , to the minutest detail, their obligations of citizenship.
It is inconceivable that the Continental Congress would have made the
qualifications of candidates and voters depend on their citizenship of
one of the original States, if there had been such a thing at the time
as citizenship of the United States. The only reference in the Ordinance
of 1787 to "citizens of the United States" is in Article IV. That is
manifestly a reference to conditions in future, made with the knowledge
that the Constitution was then in process of formation and likely to be
adopted, whereby citizens of the United States would come into
existence.
Thus we have the second class of American citizenship, to wit,
citizenship of the Northwest Territory, both of which classes of
citizenship antedated citizenship of the United States.
Citizenship of the United States.
When the Constitution was ratified by nine of the States composing
the old confederacy, and not until then, was there an actual and real
citizenship of the United States, however much the term may have been
theretofore loosely employed. The States ratified the Constitution in
the following order:
1. Delaware, December 7,1787;
2. Pennsylvania, December 12, 1787;
3. New Jersey, December 18, 1787;
4. Georgia, January 2,1788;
5. Connecticut, January 9, 1788;
6. Massachusetts, February 6, 1788;
7. Maryland, April 28,1788;
8. South Carolina, May 23, 1788;
9. New Hampshire, June 21,1788.
The Constitution provides, Article VII, that the ratification of the
conventions of nine States should be sufficient for the establishment
of the Constitution between the States so ratifying the same. The
Constitution became an established form of government June 21, 1788, in
nine States, and the remaining States, Virginia, New York, North
Carolina, and Rhode Island, when they ratified it, came into a
government already established. This attitude of Virginia and New York
was a technical rather than an actual delay, for Virginia ratified the
Constitution June 26, 1788, and New York July 26, 1788, and the
operations of the government under the new Constitution did not begin
until March 4, 1789.
The radical changes in the form of the federal compact altered the
status of the people subject to its jurisdiction, so that, whereas they
had theretofore been only citizens of the States, they now became also
citizens of the United States.(14) The first of these organic changes
was the provision of Article VI, Clause 2, of the Constitution, which
declared the laws of the United States made pursuant thereto, and all
treaties made under its authority, to be the supreme law of the land,
any thing in the constitution or laws of any State to the contrary
notwithstanding.
In the next place, the government created by the Constitution was
clothed with ample powers, independent of the States, to maintain
itself, and to reach, command, direct, and, if need be, to punish, every
individual subject to its jurisdiction.
Without going into an enumeration of those powers, it is sufficient
to say that the government created by the Constitution became a
government with citizens of its own, and was no longer a mere government
over States.
Yet radical as was this change in the nature and constitution of the
federal government, the new citizenship is referred to only three times
in the entire instrument, as it was originally framed, and then only
incidentally. The first reference is in Article 1, Section 2, Paragraph
2. In describing the qualifications of a member of the House of
Representatives, one of the qualifications was declared to be, that be
should have been "seven years a citizen of the United States." The
second reference is in Article 1, Section 3, Clause 3, which makes one
of the qualifications of a senator, that he should have been "nine years
a citizen of the United States." The third reference is in Article II,
Section 1, Clause 5, which enacted that "no person, except a natural
born citizen, or a citizen of the United States at the time of the
adoption of this Constitution, shall be eligible to the office of
President."
If these requirements bad been literally conformed to, there could
have been no election for representatives to Congress for seven years
after the adoption of the Constitution, and no one would have been
eligible as a senator for nine years thereafter. The language employed
by the convention was less careful than that which had been used by
Congress in July of the same year, in framing the ordinance for the
government of the Northwest Territory. Congress had made the
qualification rest upon citizenship of "one of the United States,, " and
this was doubtless the intent of the convention which framed the
Constitution, for it cannot have meant anything else.
The silence of the Constitution and its failure to define the meaning
of the word citizen, either by way of inclusion or exclusion, has been
the subject of much judicial comment.(16) Perhaps the best expression
concerning it is that of the Supreme Court of the United States, when
it declares: "In this respect, as in other respects, it must be
interpreted in the light of the common law, the principles and history
of which were familiarly known to the framers of the Constitution. (17)
In the famous case of Dred Scott v. Sandford,(18) it was said that
the words "'people of the United States " and "citizens" are synonymous
terms; that they "describe the political body which, according to our
republican institutions, forms the sovereignty which holds the power and
conducts the government through its representatives."
Sundry opinions of the attorney-generals of the United States are to
the same effect. In one of these, rendered in 1862, it is said: "The
Constitution of the United States does not declare who are and who are
not citizens, nor does it attempt to describe the constituent elements
of citizenship; it leaves that quality where it found it, resting on the
fact of home birth and upon the laws of the several States." (19)
It was not difficult to ascertain, on the principles above announced,
who were citizens of the United States under the original Constitution.
The citizens of Vermont and Kentucky, when those States were admitted,
assumed their relations to the Union as naturally as did those of any
of the original States. So, also, the citizens of the region now
constituting five great States erected in the Northwest Territory became
citizens of the United States the instant the Constitution was
adopted.(20)
By the Constitution, power was given Congress (Article IV, Section
3, Clause 2) to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United
States. Under this power, the process of governing the Territories and
organizing them into States was simplified.(21)
By easy transition the territory acquired from France' known as the
Louisiana Territory, and the, Florida cession from Spain, and the
territory acquired from Mexico by conquest, were first governed
territorially. Under these territorial governments the inhabitants made
their first attornment as citizens of the United States to the Federal
authority, and when the States created from this territory were
organized and admitted, they assumed their obligations of dual
citizenship to State and Nation, of a nature and a quality identical
with that of citizens of the old States.
Besides these citizens, who became such in a body, a vast number of
citizens of the United States were created under the powers of
naturalization conferred upon Congress by the Constitution.
Among the first powers conferred upon Congress by Article 1, Section
8, Clause 4, was "to establish a uniform rule of naturalization." (22)
Laws were passed, and the naturalized citizens admitted under these
laws distributed themselves among the several State or Territorial
communities of which they became members. But it did not follow as a
necessary, consequence that a naturalized citizen of the United States
became also a citizen of any State or Territory.
The original Constitution remained unchanged concerning citizenship,
from 1789 until July 28, 1868, when the Fourteenth Amendment to the
Constitution was adopted. Before entering into a discussion of the
effect upon citizenship, and the manner of enforcement, of that
amendment, a brief historical statement is necessary.
Even prior to the adoption of the Constitution, sectional jealousies
existed between the States. The basis of representation in the national
Congress was a fruitful source of controversy between them. The
population of the northern colonies was almost exclusively white and
free, whereas that of the southern colonies consisted, to a large
extent, of black slaves. The extent to which this black population was
to be considered in arranging a basis of representation gave rise to
many of the controversies between the sections, at the outset.
The basis of representation in Congress fixed by the Constitution,
Article 1, Section 2, Clause 3, apportioned representatives among the
several States according to their respective numbers, which were to be
determined by adding to the whole number of free persons, three-fifths
of all other persons, exclusive of Indians not taxed.
The Constitution conferred power on Congress to dispose of and make
all needful rules and regulations respecting the territory, or other
property, belonging to the United States.(23) It likewise conferred upon
Congress the power to admit new States into the Union.(24)
The Constitution contained a provision that no person held to service
or labor in one State, under the laws thereof, escaping into another
State, should in consequence of any law or regulation therein be
discharged from such service or labor, but that he should be delivered
up on claim of such party to whom such service or labor might be
due.(25)
The relative strength of the sections North and, South was altogether
different at that time from what it is at present; even the white
population of the southern States, in which slavery existed, as compared
with that of the northern States, where slavery did not exist was
proportionately larger than it is at present, and on the basis set forth
above the northern States were jealous of the preponderance of
representation given to the southern States. It was argued by those
opposed to the Constitution in the North, that it placed the northern
States, especially the small ones, at the mercy of the southern States,
in the Union. It was this argument, no doubt, that made Rhode Island
reluctant to become a member of the Union. On the other hand, the
southern States realized that the population of the North was growing
much more rapidly than that of the South, and that it was spreading into
the Territories and would demand that those Territories be formed into
new States and admitted into the Union as free States. It was argued by
those opposed to the Union in the South, that such a result was
inevitable; that in a short time the slaveholding States would be
dominated by the free States of the North and West, and that they, by,
the control thus gained in Congress over the Territories and concerning
the admission of free States, would put the slave States at the mercy
of the free States in federal affairs. It was doubtless by arguments
like this, that North Carolina was restrained so long from becoming a
member of the Union.
The Constitution contained no definite expression upon the right of
the States to withdraw from the Union if they became dissatisfied. in
spite of many attempts to have that right defined, the convention
refused to do so.
These conditions gave rise from the outset to such antagonism between
the sections, that it was found impossible to procure the assent of
Congress to the admission of new States, except in couplets, one with
and one without slavery. This method of admitting States began with the
States of Vermont and Kentucky, and continued until the controversies
over the regulation of slavery in the Territories, the returning of
fugitive slaves, and the right of States to secede, culminating in an
attempt in the year 1861, on the part of the slave States, to withdraw
from the Union, and a consequent civil war, in which the northern States
were triumphant.
While the controversy over slavery was at its height, a case was
decided by the Supreme Court of the United States, in which the status
of the negro race, under the Constitution, was defined. The decision was
rendered in the year 1857, and the question involved was deemed to be
of such importance that the opinions delivered occupied two hundred and
forty pages of the volume in which they appear. The points relating to
citizenship decided by the Supreme Court, in an opinion of great power
delivered by Chief Justice Taney, were: "A free negro of the African
race whose ancestors were brought to this country and sold as slaves,
is not a 'citizen' within the meaning of the Constitution of the United
States....When the Constitution was adopted, they were not regarded in
any of the States as members of the community which constituted the
State, and were not numbered among its 'people or Citizens.'
Consequently the special rights and immunities guaranteed to citizens
do not apply to them.... The only two clauses in the Constitution which
point to this race treat them 88 persons whom it was morally lawful to
deal in as articles of property and to hold as slaves."
This finally adjudged status of the negro race continued to be the
law of the land until it was changed by the following events.
In December, 1862, the war between the United States and the States
which had attempted to secede from the Union, having then been flagrant
for nearly two years, with its result still in doubt, the President of
the United States issued a proclamation conditionally emancipating all
the slaves in the States whose armed forces were opposed to those of the
United States. By subsequent proclamations, this conditional
emancipation of the slaves was made absolute. The President did not
claim to justify this proclamation by any express warrant of the
Constitution, but it was claimed by him to be a war measure, legitimate
as a means of weakening and injuring an enemy in arms. We need not
therefore consider it further as a measure of law. It was emphatically
a measure of the war.
In April, 1865, the armies of the United States conquered the armies
of the States which attempted to secede, and those States, with their
people, were at the mercy of the conqueror, subject to such terms as it
saw fit to impose. In anticipation of this victory, the Congress of the
United States, February 1, 1865, proposed to the legislatures of the
several States an amendment, known as Article XIII, in addition to, and
amendment of, the Constitution of the United States, in the words and
figures following:
" ARTICLE XIII.
"SECTION 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction." "
December 18, 1865, the secretary of state proclaimed that twenty-seven
of the thirty-six State's had, by their legislatures, ratified this
amendment. This included ratification by the legislatures of the States
of Virginia, Louisiana, Tennessee, Arkansas, South Carolina, Alabama,
North Carolina, and Georgia, all of which States had attempted to
secede, and were completely within the control of the Federal military
power at the date of their alleged ratification of this amendment. It
has since been claimed that they were under duress at the time of their
alleged ratification, but the Supreme Court of the United States, in
the case of White v. Hart,(27) considered and disposed of this plea of
duress, as it related to the State of GeorgiA, in a way so effectual
that it need not be further referred to.(28)
The negro having thus been emancipated by the power of war, and his
status changed from that of a slave to a freeman, it was proposed, for
reasons satisfactory to the dominant party, to alter his civil and
political status as it had been defined by the case of Dred Scott v.
Sandford. Accordingly, the Congress of the United States, on January 16,
1866, proposed to the legislatures of the several States the following
amendment to the Constitution:
ARTICLE XIV.
"Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges and immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."(29)
The amendment contains three other sections, but none of them refer
to citizenship.
July 21, 1868, by a joint resolution of Congress, the Fourteenth
Amendment was declared to have been adopted. Not only did it work a
revolution in the citizenship of the negro race, but its effect upon
United States citizenship, upon the citizenship of States, upon the
status of every class of people in the United States, and upon the
relations between the United States and the States, has given rise to
more discussion, and been the subject of more decisions, than any other
part of the Federal Constitution.(30) The Supreme Court of the United
States alone has, in a period of thirty-five years, rendered about three
hundred decisions on questions arising upon this amendment.
To discuss those decisions; at length is impossible within the limits
of any one volume. Many of them relate to laws abridging the privileges
and immunities of citizens; many to what constitutes due process of law;
many to the denial of the equal protection of the laws. A few, defining
the reasons which led to the adoption of the amendment, and the effects
of the amendment upon the rights of citizens, will suffice in this
chapter, while others will be considered when we come to discuss the
method by which this defined citizenship may be acquired or protected.
In the Slaughter-House Cases (31) which were the first to arise under
this amendment and in which opinions of unsurpassed ability were
rendered, it is said: "This clause declares that persons may be citizens
of the United States without regard to their citizenship of a particular
State, and it overturns the Dred Scott decision by making all persons
born within the United States and subject to its jurisdiction citizens
of the United States."
And in the case of U.S. v. Wong Kim Ark,(32) it is again said: "The
Fourteenth Amendment of the Constitution, in the declaration that 'all
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside,' contemplates two sources of citizenship, and two
only: birth and naturalization. Citizenship by naturalization can only
be acquired by naturalization under the authority and in the forms of
law. But citizenship by birth is established by the mere fact of birth
under the circumstances defined in the Constitution. Every person born
in the United States, and subject to the jurisdiction thereof, becomes
at once a citizen of the United States, and needs no naturalization."
"The real object of the Fourteenth Amendment of the Constitution, in
qualifying the words, 'All persons born in the United States,' by the
addition, 'and subject to the jurisdiction thereof,' would appear to
have been to exclude by the fewest and fittest words (besides children
of members of the Indian tribes, standing in a peculiar relation to the
national government, unknown to the common law), the two classes of
cases - children born of alien enemies in hostile occupation, and
children of diplomatic representatives of a foreign state - both of
which, as has already been shown, by the law of England, and by our own
law, from the time of the first settlement of the English colonies in
America, had been recognized exceptions to the fundamental rule of
citizenship by birth within the country."
Qualified Citizenship in Territorial and Acquired Possessions.
Recent events, the result of which was not foreseen, have created an
entirely new and unprecedented citizenship in the United States. It is
the limited and rudimentary citizenship of the inhabitants of our newly
acquired territory in Alaska, Puerto Rico, the Philippine and the
Ladrone Islands, and in Hawaii. The status of those citizens is the
result of changed conditions in the territory which they inhabit. The
oldest of these possessions is Alaska, purchased by the United States
from Russia, and governed as a Territory. The latest expression of the
Supreme Court of the United States, defining the status of Alaskan
citizenship, is in an opinion delivered April 10, 1905.(33)
In April, 1898, the United States declared war against the Kingdom
of Spain, in a quarrel between the two nations concerning the government
by Spain of the island of Cuba, a Spanish possession. In May, 1898, the
naval forces of the United States invaded the Philippine Islands,
another Spanish possession, soon followed by the land forces of the
United States. In July, 1898, the military forces of the United States
invaded the island of Puerto Rico, another Spanish possession. By a
protocol dated August 12,1898,(34) hostilities were suspended between
the United States and Spain, upon the understanding that Spain would
cede to the United States; the island of Puerto Rico, and other islands
under Spanish sovereignty in the West Indies, also an island in the
Ladrones to be selected by the United States.
By a treaty dated December 10, 1898,(35) Spain actually ceded to the
United States the island of Puerto Rico, and the other islands under
Spanish sovereignty in the West Indies, and the island of Guam in the
Ladrone group, and by the same treaty she ceded to the United States the
archipelago known as the Philippine Islands, by boundaries. Provision
was made in the treaty for the protection of Spanish subjects, natives
of the peninsula residing in the ceded territory, for the protection of
the religion of the inhabitants of the territories ceded, and for the
protection of certain civil rights. By a treaty dated November
7,1900,(36) Spain ceded all islands belonging to the Philippine
archipelago, lying outside the lines described in the prior treaty,
particularly the islands of Sulu and Sibitu.
By a protocol dated March 29, 1900,(37) the period fixed by the former
treaty for Spanish subjects to declare their intention to retain their
Spanish nationality was extended six months.
Thus, within a year from the outbreak of the war with Spain, the
United States acquired all the above named islands, with many millions
of inhabitants, and undertook by Article IX of the Treaty of December
10, 1898, that "the civil rights and political status of the native
inhabitants of the territories ceded to the United States shall be
determined by the Congress."
While these events were transpiring the Republic of Hawaii, whose
government extended over a group of islands in the Pacific, known as the
Hawaiian Islands, formally signified its consent, in the manner provided
by its constitution, to cede absolutely and without reservation to the
United States of America, all rights of sovereignty of whatsoever kind
in and over the Hawaiian Islands or their dependencies, and also to cede
and transfer to the United States the absolute fee and ownership of all
public, government, or crown lands, public buildings or edifices, ports,
harbors, military equipment, and all other public property of every kind
and description belonging to the government of the Hawaiian Islands,
together with every right and appurtenance thereunto appertaining. This
proposition was presented to the Congress of the United States, and
accepted July 7, 1898, by a joint resolution, (38) which provided that
"said cession is accepted, ratified, and confirmed, and that the said
Hawaiian Islands and their dependencies be, and they are hereby, annexed
as part of the territory of the United States and are subject to the
sovereign dominion thereof, and that all and singular the property and
rights hereinbefore mentioned are vested in the United States of
America."
It was further provided that "until Congress shall provide for the
government of such islands all the civil, judicial, and military powers
exercised by the officers of the existing government in said islands
shall be vested in such person or persons, and shall be exercised in
such manner, as the President of the United States shall direct; and the
President shall have power to remove said officers and fill the
vacancies so occasioned." The municipal legislation of the Hawaiian
Islands, subject to certain limitations, was to remain in force until
the Congress of the United States should otherwise determine. The United
States government assumed the debts of the islands, not to exceed
$4,000,000. As act was passed forbidding the immigration of Chinese. The
President was required to appoint five commissioners to recommend to
Congress such legislation concerning the Hawaiian Islands as they should
deem necessary or proper.(39)
Thus it will be seen, that in the year 1898 the United States gained
an immense accession of citizenship in territory lying far beyond its
original confines, inhabited by people altogether different from those
who had constituted its citizens theretofore. It will also be seen, both
in the joint resolution accepting sovereignty over the Hawaiian Islands,
and in the treaty accepting the cession of the Spanish possessions, that
the United States assumed complete authority to govern all the newly
acquired territory.
Let us now consider what government it has, up to the present time,
provided for these several possessions, an examination essential to an
understanding of the grade and quality of citizenship which their
inhabitants enjoy.
HAWAII -- ITS GOVERNMENT
Congress, by an Act approved April 30, 1900, (40) passed an Act to
provide a government for the Territory of Hawaii. In Chapter I, Section
4, of that Act it was set forth that all persons who were citizens of
the Republic of Hawaii on August 12, 1898, are hereby declared to be
citizens of the United States and citizens of the Territory of Hawaii;
and all citizens of the United States residing there on or since August
12, 1898, and all citizens of the United States who shall hereafter
reside in the Territory of Hawaii for one year, shall be citizens of the
Territory of Hawaii. The fifth section declared that the Constitution
and laws of the United States, except such as are locally inapplicable,
shall have the same force and effect in the Territory as elsewhere in
the United States, with certain specific exceptions.
The Act provides for a legislature composed of a senate and a house
of representatives, for general elections, and that all legislative
proceedings shall be conducted in the English language. It confers a
large degree of legislative power upon the legislature, and extends a
broad franchise to all inhabitants who are citizens of the United States
and have resided in the Territory not less than a year, twenty-one years
old, registered, and able to speak, read, and write the English or the
Hawaiian language. It provides, however, for the appointment by the
President of the United States of a governor, secretary, chief justice
and justices of the Supreme Court, and judges of the circuit courts; and
that the governor shall nominate, and, by and with the advice and
consent of the senate of the Territory appoint, an attorney-general,
treasurer, commissioner of public lands, commissioner of agriculture and
forestry, superintendent of public works, superintendent of public
instruction, auditor, and other officers; but all the officers appointed
under the Act are to be citizens of the Territory. By the terms of the
Act, Section 85, the delegate to the House of Representatives of the
United. States, to serve during each Congress, shall be elected by the
voters qualified to vote for members of the house of representatives of
the legislature; such delegate shall possess the qualifications
necessary for membership of the Senate of the legislature of Hawaii.
Every delegate shall have a seat in the United States House of
Representatives, with the right of debate but not of voting.
From the foregoing recital of the Constitution and government of
Hawaii, it will be seen that the government organized in that Territory
is very similar in its general characteristics to that organized in the
Northwest Territory by the Ordinance of 1787.
PUERTO RICO
Congress proceeded April 12, 1900, to enact a civil government for
the island of Puerto Rico and adjacent islands.(41) The Act provides
that all inhabitants continuing to reside in Puerto Rico, who were
Spanish subjects on the 11th day of April, 1899, and then resided in
Puerto Rico, and their children born subsequent thereto, shall be deemed
and held to be citizens of Puerto Rico, and as such entitled to the
protection of the United States, and they, together with such citizens
of the United States as may reside in Puerto Rico, shall constitute a
body politic under the name of The People of Puerto Rico, with
governmental powers as conferred in the Act. By Section 14, the
statutory laws of the United States not locally inapplicable, except as
otherwise provided, and except the internal-revenue laws, are to have
the same force and effect in Puerto Rico as in the United States.
Section 16 provides that all judicial process shall run in the name of
the United States, to wit, the President of the United States, and that
all penal prosecutions in the local courts shall be conducted in the
name and under the authority of the people of Puerto Rico, and that all
officials authorized by the Act shall take an oath to support the
Constitution of the United States and the laws of Puerto Rico.
The legislative authority provided by the Act was empowered to amend,
alter, modify, or repeal any law or ordinance, civil or criminal.
Congress, however, retained the right in the President to appoint a
governor and other executive officers and members of an executive
council. The legislative body consists of the executive council and the
house of delegates, and is known as the Legislative Assembly of Puerto
Rico; the house of delegates comprises thirty-five members elected
biennially by the qualified voters from the seven districts into which
the island is divided. All citizens of Puerto Rico, bona fide residents
for a year, and possessed of other qualifications under the laws and
military orders, are allowed to vote. The legislative authority extends
to all matters of a legislative character not locally inapplicable,
including the power to create, consolidate, and reorganize the
municipalities, and to amend, alter, modify, or repeal all laws and
ordinances of Puerto Rico, not inconsistent with the provisions of the
bill. A judicial power is created, but the judges are appointed by the
President of the United States, and Puerto Rico is made a judicial
district for the purposes of Federal jurisdiction, with appeal to the
Supreme Court of the United States. The writ of habeas corpus is
extended to the Territory, and a commission was appointed to compile and
revise the laws of Puerto Rico and report a permanent plan of government
within a year.
By acts passed in 1902, a cadet at West Point and a midshipman at
Annapolis are authorized from the Territory of Puerto Rico,(42) and
citizens of Puerto Rico are made eligible for enlistment in the Puerto
Rico regiment, with the right to order them outside the service of the
island.
By a proclamation dated July 25,1901, the President declared that the
civil government of Puerto Rico had been organized in accordance with
the provisions of the Act of Congress.(43)
From the foregoing, it will be seen that the government of Puerto Rico
is even more like that provided for the Northwest Territory, than the
government of Hawaii, as the legislative body of Puerto Rico consists
of an executive council appointed by the President to act in conjunction
with the house of delegates; but the acknowledgment that the inhabitants
of Puerto Rico are citizens of the United States is expressly withheld
in the declaration of the Act of Congress of April 12, l900, Section 7,
which says that all inhabitants continuing to reside therein who were
Spanish subjects on the 11th day of April, 1899, and then resided in
Puerto Rico, and their children born subsequent thereto, should be
deemed and held to be citizens of Puerto Rico and as such entitled to
the protection of the United States, and they, together with such
citizens of the United States as may reside in Puerto Rico, shall
constitute a body politic under the name of The People of Puerto Rico.
GUAM
No special provision of law seems to have been enacted concerning the
inhabitants of the island of Guam, or defining the status of their
citizenship.
THE PHILIPPINE ISLANDS
The Philippine Islands occupy an immense space upon the map. Their
inhabitants consist of a vast number of tribes, varying in intelligence
and civilization. By an Act of Congress passed March 2, 1901, the
President of the United States was authorized to establish a temporary
civil government over the Philippine Islands,(44) in the following
language: "All military, civil, and judicial powers necessary to govern
the Philippine Islands, acquired from Spain by the treaties concluded
at Paris on the 10th day of December, 1898, and at Washington on the 7th
day of November, 1900, shall, until otherwise provided by Congress, be
vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the
establishment of civil government and for maintaining and protecting the
inhabitants of said islands in the free enjoyment of their liberty,
property, and religion," etc.
Pursuant to the powers vested in him, the President of the United
States created a civil commission, which has, from that time until the
present, continued to administer the affairs of the Philippine Islands.
By an Act passed July 1, 1902, Congress(45) approved and ratified and
confirmed the action of the President in creating the Philippine
Commission, and in authorizing the commission to exercise the powers of
government to the extent and in the manner and form and subject to the
regulation and control set forth in the instructions of the President
to the Philippine Commission dated April 7, 1900; in creating the
offices of civil governor and vice-governor of the Philippine Islands,
and authorizing said civil governor and vice-governor to exercise the
powers of government to the extent and in the manner and form set forth
in the executive order dated June 21,1901, and in establishing four
executive departments of government in the islands, as set forth in the
Act of the Philippine Commission.
It is necessary to go into the details of the organization of that
commission. It is sufficient to say that it was organized for the
purpose of securing to the inhabitants of the Philippine Islands a
stable and safe government by the United States until such time as its
people shall be deemed capable of a larger degree of self-government.
Congress by the Act of July 1, 1902, Section 5,(46) provided a series
of safeguards for the protection of life and liberty of the inhabitants
of the Philippines. The rights guaranteed by that section are those set
forth in the Declaration of Independence, modified by the condition of
the inhabitants. Among those rights are, the guarantee that no person
shall be deprived of life, liberty or property, without due process of
law; the right of the criminal to be heard by himself and counsel and
to demand the nature and cause of the accusation; the guarantee that no
person shall be twice put in jeopardy for the same offense or be
compelled to testify against himself; the right to bail; that no law
shall be passed impairing the obligation of contracts; that there shall
be no imprisonment for debt; that the writ of habeas corpus shall not
be suspended; that no ex post facto law or bill of attainder shall be
passed; in fact, all the civil rights guaranteed by the Constitution of
the United States.
Section 4 (47) of the Act declares that all inhabitants of the
Philippine Islands continuing to reside therein who were Spanish
subjects on the llth day of April, 1899, and then resided in said
islands, and their children born subsequent thereto, shall be deemed and
held to be citizens of the Philippine Islands and as such entitled to
the protection of the United States. It expressly fails to declare that
they shall be deemed citizens of the United States.
Section 6(48) provides for a census.
Section 7 (49) provides for a general election two years after the
completion of the census, on certain conditions, to choose delegates to
a popular assembly, and that after such assembly shall have convened and
organized, the legislative power theretofore conferred on the Philippine
Commission in all that part of the islands not inhabited by Moros and
non-Christian tribes should be vested in a legislature consisting of two
houses, the Philippine Commission and the Philippine Assembly. The
qualification of electors shall be the same as now provided by law in
the case of electors in municipal elections. The act contains sundry
other provisions looking to an enjoyment of the rights of citizenship
for the inhabitants of the islands.
By the same Act a Bureau of Insular Affairs of the War Department is
created. The business assigned to that bureau embraces all matters
relating to the civil government in the island possessions of the United
States, subject to the jurisdiction of the War Department.
Under the foregoing acts, a most thorough and efficient government
has been provided for the Philippine Islands. There is little doubt that
the inhabitants of Hawaii, Puerto Rico, and the Philippines are better
governed than they were before, and with the humane and gentle tyranny
to which the inhabitants of the Philippines are subjected by the United
States, they are doubtless being stimulated to a degree of intelligent
conception of our ideals of liberty and self-government, and to a
standard of civilization much higher than they ever heretofore
conceived.
Citizenship in Our Insular Possessions.
These ends may be invoked to justify the means employed, but four
facts concerning the inhabitants of Puerto Rico, the Philippines, and
Guam remain undisputed, as follows:
1. That the United States commands their allegiance.
2. That they never did voluntarily assume that allegiance.
3. That the qualified citizenship, the restricted liberty, and the
limited right of self-government which they Possess, are of a nature far
inferior to those enjoyed by the inhabitants of the continent of North
America who are subject to the jurisdiction of the United States.
4. That both the qualified citizenship conferred upon them and the form
of government imposed upon them are different from any citizenship or
government that was contemplated by the framers of the Constitution of
the United States, when it was proposed and adopted.
As a legal proposition, there can be little doubt of the power of the
United States to acquire all these possessions, and of the obligation
resting upon it to govern them wisely and judiciously after acquiring
them.
The Supreme Court of the United States has had occasion to consider
and define the status of these lands. A careful study of the case of
DeLima v. Bidwell,(50) and the group of cases in the same volume
collectively designated as the "insular tariff cases," is recommended
to the student who is particularly interested in this subject The
arguments and the decisions rendered place the reader in full possession
of the facts and circumstances under which these possessions were
acquired, the status of the people as regards the United States, the
nature of the governments under which their affairs are administered,
and the constitutional provisions, civil and military, relied upon to
justify and sustain the United States in the government it has
established. Not the least surprising result of such a study will be the
discovery of a great divergence of opinion among the learned and able
lawyers who compose the Supreme Court of the United States, concerning
the ground on which the right of the United States to govern these
people rests, and the status of their inhabitants as citizens of the
government of the United States. By far the ablest and most concise
statement of the law, justifying the acquisition of these islands and
sustaining the authority of Congress to define and determine the status
of their inhabitants, is found in the concurring opinion of Mr. Justice
Gray, in the case of Downes v. Bidwell.(51)
The power granted to the United States to make war and make treaties,
unquestionably involved the right to acquire these territories by
conquest, and the power to govern them seems to be a necessary incident
of the power to acquire them.(52) The semi-barbarous inhabitants of the
Philippines, at least, have everything to gain and nothing to lose, from
the protection and qualified citizenship accorded to them by the
American Republic, but the wisdom of assumption by the United States of
this class of guardianship over outlying territory has given rise to
much debate.
The territorial government heretofore exercised by the United States
over national territory contiguous to the States was a temporary
government. It was only intended to last and only lasted, until the new
settlers, flowing from the States into the organized Territories,
attained such numbers and other requisites as justified their
organization into new States. In such cases the transition from the
territorial condition into Statehood was easy, rapid, and sure. The
difference in the nature and quality of the citizenship between
inhabitants of Territories and those of States was only a difference in
name, and State citizenship only brought with it a few added political
rights. But there can be no such progressive development and rapid
growth to independence of Federal supervision in these insular
acquisitions. Possession of them involves the necessary strengthening
of our naval power, and an increased danger of foreign complications.
Their inhabitants are of an alien stock which has never comprehended our
ideals of government, or had any conception of the principles of
republican liberty or democratic self-rule, such as we have understood
and practiced. If they are ever able to comprehend them, it will only
be after generations, if not centuries, of paternal rule and educate on
to elevate them to our standard. It is doubtful if they will ever
assimilate to our institutions and whether they will not always need a
strong government. It is questionable whether the injury to our home
government from the ill effects on its simplicity resulting from this
practice of strong government upon our alien subjects will not be
greater than any benefit. which we are likely to bestow on them. These
are the arguments which have arisen against the inauguration of this new
insular policy and the adoption of this surprising new citizenship. In
a treatise like this, it is sufficient to state the argument without
attempting to draw conclusions. What these insular governments may some
day become, the future alone will disclose. At present, they are
substantially citizens without a voice in their government, and subjects
without a king. They are free, provided they conform to the standard of
right and wrong fixed for them by a well-meaning and benevolent despot,
fixed from a viewpoint altogether different from their own.
The United States had its birth in the protest of Henry against the
dictation of foreign rulers. Summing up and denouncing the usurpations
of King George, he said: "If this be treason, make the most of it." The
nation which sprung into being upon this issue has now become the
foreign ruler of an alien people by conquest. It has assumed to
revolutionize their mode of existence, mental, moral, physical, and
political. In its determination to bear the torch of liberty to the
remotest people of the earth, it has marched among them, planted its
standard, proclaimed its rule, and answered their every protest with the
announcement, "This is liberty, and you must make the most of it."
History will record the success or failure of the experiment.
This completes the enumeration of the different kinds of citizenship
existing under our system of government.
Footnotes to Chapter I.
(1) See also Webster's Dictionary; Century Dictionary; 6 Am. and Eng.
Encyc. of Law (2d ed.) 15; Abrigo v. State, (1890) 29 Tex. App. 149.
(2) "Citizens are the members of the political community to which they
belong. They are the people who compose the community, and who, in their
associated capacity, have established or submitted themselves to the
dominion of a government for the promotion of their general welfare and
the protection of their individual as well as their collective rights."
U.S. v. Cruikshank, (1875) 92 U.S. 542.
(3) For the purpose of designating by a title the person and the
relation he bears to the nation, the words `subject,' `inhabitant,' and
`citizen' have been used, and the choice between them is sometimes made
to depend upon the form of the government. 'Citizen' is now more
commonly employed, however, and as it has been considered better suited
to the description of one living under a republican government, it was
adopted by nearly all of the States upon their separation from Great
Britain, and was afterwards adopted in the Articles of Confederation and
in the Constitution of the United States." Minor v. Happersett, (1874)
21 Wall. U.S. 162.
"The word in never used of the people in a monarchy, since it Involves
an idea not enjoyed by subjects, to wit: the inherent right to partake
in the government- The republics of the Old World were cities, and the
word citizen has been usually in human history only applied to
inhabitants of cities. As, (4) (1849) 7 How. (U. S.) 1.
however, states have in modern times arisen, and republics have been
established, in which the word subjects could not be properly applied,
the people of those republics, have been called citizens, for the simple
and obvious reason that their relation to the state was such an was the
relation of citizens to the city. They were a part of its sovereignty
- they were entitled to its privileges, its rights, immunities and
franchises. White v. Clements, (1896) 39 Ga. 232.
(5) Thomasson v. State, (1960) 15 Ind. 449; Amy v. Smith, (1822) 1 Litt.
(Ky.) 332.
(6) 6 Am. & Eng. Enc-ye. of Law, 15 and cases cited; Minor v.
Happersett, (1874) 21 Wall. U.S. 162; Lyons v. Cunningham, (1884) 66
Cal. 42; Blanck iv. pausch, (1885) 113 111. 60; Laurent v. State, (1863)
1 Kan. 313; Opinion of Justices, 44 Me. 507; Pomeroy's Municipal Law,
pt. 11, c. 2, p. 425; Dred Scott 9. Sandford, (1856) 19 How. U.S. 422;
U.S. v. Morris. (1903) 125 Fed. Rep. 325; Dorsey v. Brigham, (I898) 177
111. 258,69Am.St.Rep.232; Gougar v. Timberlake, (1897) 148 Ind. 41, 62
Am. St. Rep. 489.
(7) (1849) 7 How. U.S. 1.
(8) Inglis v. Sailor's Snug Harbour, (1830) 3 Pet. (U. S.) 121.
(9) The Federalist (Lodge, 1892), p. 86.
(10) The Federalist (Lodge, 1892), p. 137.
(11) Edition 1900.
(12) Lodge, 1902, p.231.
(13) See the text of ordinance in Vol. 8, Federal Statutes, Annotated,
p. 17.
(14) Every person, and every clan and description of persons, who were
at the time of the adoption of the Constitution recognized as citizens
in the several States, became also citizens of this new political body."
Dred Scott v. Sandford, (1856) 19 How. (U. S.) 406.
(15) "Whoever...was one of the people of either of these States when the
Constitution of the United States was adopted, become ipso facto a
citizen- a member of the nation created by its adoption. He was one of
the people associating together to form the nation, and was,
consequently, one of Its original citizens. And to this there has never
been a doubt. Disputes have arisen as to whether or not certain persona
or certain classes of persons were part of the people at the time, but
never as to their citizenship It they were." Minor v. Happersett, (1874)
21 Wall. (U. S.) 162.
(16) Prior to the 14th article of amendment to the Federal Constitution
no definition of the term "citizenship" was to be found in the
Constitution, nor had any attempt been made to define it by Act of
Congress. It had been the occasion of much discussion in the courts, by
the executive departments, and in the public journals.- Slaughter House
Cases, (1872) 16 Wall. (U. S.) 72.
(17) U.S. v. Wong Kim Ark, (I 897) 169 U. S. 654.
"The term 'citizen' was used In the Constitution as a word, the meaning
of which was already established and well understood. And the
Constitution itself contains a direct recognition of the subsisting
common-law principle, in the section which defines the qualification of
the President: 'No person except a natural born citizen, or a citizen
of the United States at the time of the adoption of this Constitution,
shall be eligible to the office of President.' etc. The only standard
which then existed of a natural born citizen was the rule of the common
law, and no different standard has been adopted since." Lynch v. Clarke,
(1844) 1 Sandf. Ch. (N. Y.) 656.
"The term 'citizen,' as understood in our law, is precisely analogous
to the term subject in the common law, and the change of phrase had
entirely resulted from the change of government. The sovereignty has
been transferred from one man to the collective body of the people - and
he who before was a subject of the king , is now a citizen of the
state."' State v. Manuel, (1838) 4 Dev. & B. L. (N. Car.) 26, quoted
U.S. v. Rhodes, (1866) 1 Abb. U.S. 39. 27 Fed. Cas. No. 16,151.
(18) Dred Scott v. Sandford, (1856) 19 How. (U. S.) 393.
(19) Citizenship, (1862) 10 0p. Atty.Gen. 382.
(20) Admission on an equal footing with the original States, In all
respects whatever, Involves equality of constitutional right and power,
which cannot afterwards he controlled, and it also involves the adoption
as citizens of the United States of those who Congress makes members of
the political community, and who are recognized as such in the formation
of the new State with the consent of Congress. Boyd v. Thayer, (1891)
143 U. S. 143.
(21) McCulloch v. Maryland. (1819) 4 Wheat U.S. 316; American Ins. Co.
v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511; U.S. v. Gratiot, (1840) 14
Pet. U.S. 526; U. S. v. Rogers, (1846) 4 How. U. S. 667; Crone V.
Harrison, (1853) 16 How. U.S. 164; U.S. v. Coxe. (1855) 18 How. U.S.
100; Gibson v. Chouteau, (1871) 13 Wall. U.S. 92; Clinton v.
Englebrecht, (1871) 13 Wall. U.S. 434; Beals 9. New Mexico, (1872) 16
Wall. U.S. 535.
"The Constitution of the United States (article four, section three)
provides, 'that Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory, or other
property, belonging to the United States.' The term territory, as here
used, in merely descriptive of one kind of property; and is equivalent
to the word lands. And Congress has the same power over it and over any
other property belonging to the United States; and this power is vested
In Congress without limitation; and has been considered the foundation
upon which the territorial governments rest." U.S. v. Gratiot, (1840)
14 Pet. U.S. 537.
The Constitution empowers Congress "to make all needful rules and
regulations. respecting the territory or other property belonging to the
United States; and perhaps the power of governing a territory belonging
to the United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from fact that it is
not within the jurisdiction of any particular State, and is within the
power and jurisdiction of the United States. The right to govern may be
the inevitable consequence of the right to acquire territory. Whichever
may be the source whence the power is derived, the possession of it is
unquestioned." Per Chief Justice Marshall in American Ins. Co. v. 356
Bales Cotton, (1828) 1 Pet. U.S. 511. To the same effect, Sere v. Pitot,
(1810) 6 Cranch U.S. 332.
(22) Gassies v. Ballon, (1832) 6Pet. U.S. 761; Dred Scott v. Sandford,
(1856) 19 How. U.S. 393; Minneapolis v. Reum, (C.C.A. 1893) 56 Fed. Rep.
580. See also the notes on the Constitution dealing with this subject
in Vol. 8, Federal Statutes, Annotated, p. 579.
"The Constitution declares that the citizens of each State shall be
entitled to all the privileges and immunities of citizens in the several
States....It made all alike, citizens of the newly organized nation,
and in this respect a homogeneous people. And the very necessity for
such a provision to bring all upon a common platform, exhibited in the
strongest light the absolute need of guarding against different and
discordant rules for establishing the right of citizenship in future.
We therefore find that one of the first powers conferred upon Congress
was "to establish an uniform rule of naturalization throughout the
United States." Lynch v. Clarke, (1844) 1 Sandf. Ch. (N. Y.) 841, 64?.
(23) Const, Art. IV, Sec. 3, Cl. 2; M'Culloch v. Maryland, (1819) 4
Wheat U.S. 316; American Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet.
U.S. 511; U. S. v. Gratist, (1840) 14 Pet. U.S 526; U. S. v. Rogers,
(1846) 4 How. U.S. 56T; Cross v. Harrison, (1853) 16 How. U.S. 164; U.S.
v. Coxe, (1855) 18 How. U.S. 100; Gibson v. Chouteau, (1871) 13 Wall.
U.S. 92; Clinton v. Englebrecht, (1871) 13 Wall. U.S. 434; Beall v. New
Mexico. (1872) 16 Wall. U.S. 535; Davis v. Beason, (1890) 133 U.S. 333;
Wisconsin Cent. R. Co. v. Price County, (1890) 133 U. S. 496; Cope v.
Cope, (1891 ) 137 U.S. 682; Church of Jesus Christ v. U.S., (1890) 136
U.S. 1; Dooley v. U.S., (1901) 192 U.S. 222; Downes v. Biowell, (1901)
182 U.S. 244; Dooley v. U.S., (1901) 183 U.S. 151.
(24) Const., Art. IV, Sec. 3, Cl. 1; American Ins. Co. v. 354 Bales
Cotton, (1828) 1 Pet. U.S. 511; Pollard v. Hagan, (1945) 3 How. U.S.
212; Crosis v. Harrison, (1853) 16 How. U.S. 164.
(25) Const., Art. IV, Sec. 2, Cl. 3; Prigg v. Pennsylvania, (1842) 16
Pet. U.S. 539; Jones v. Van Zandt, (1847) 5 How. U.S. 215; Strader v.
Graham, (1850) 10 How. U.S. 82; Moore v. Illinois, (1852) 14 How. U.S.
13; Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Ableman v. Booth,
(1858) 21 How. U.S. 516; Callan v. Wilson, (1888) 127 U.S. 540;
Nashville, etc-, R. Co. v. Alabama, (1888) 128 U.S. 96.
"Historically,, it is well known that the object of this clause was
to secure to the citizens of the slaveholding States the complete right
and title of ownership In their slaves, as property, in every State in
the Union Into which they might escape from the State where they were
held in servitude. The full recognition of this right and title was
indispensable to the security of this species of property in all the
slaveholding States; and, indeed, was so vital to the preservation of
their domestic interests and institutions, that it cannot not be doubted
that it constituted a fundamental article, without the adoption of which
the Union could not have been formed. Its true design was to guard
against the doctrine and principles prevalent in the non-slaveholding
States, by preventing them from inter-medling with, or obstructing. or
abolishing the rights of the owners of slaves? Prigg. v. Pennsylvania,
(1842) 16Pet. (U.S. 611.
(26) White iv. Hart, (1871) 13 Wall. U.S. 646; Osborn v. Nicholson,
(1871) 13 Wall. U.S. 654; Slaughter-House Cases. (1872) 16 Wall. U.S.
36; Strander v. West Virginia, (1879) 100 U.S. 303; Exp. Virginia,
(1879) 100 U.S. 339; Civil Rights Case, (1883) 109 U.S. 3; Plesey v.
Ferguson, (1896) 163 U.S. 537; Robertson 9. Baldwin, (1897) 165 U.D.
275.
"When the armies of freedom found themselves upon the soil of slavery
they could do nothing less than free the poor victims whose enforced
servitude was the foundation of the quarrel. . . . The proclamation of
President Lincoln expressed an accomplished fact and to a large portion
of the insurrectionary districts, when he declared slavery abolished in
them all. But the war being over, those who had succeeded in
re-establishing the authority of the Federal government were not content
to permit this great act of emancipation to rest on the actual results
of the contest or the proclamation of t@e Executive, both of which might
have been questioned in aftertimes, and they determined to place this
main and most valuable result in the Constitution of the restored Union
as one of its fundamental articles. Hence the thirteenth article of
amendment of that instrument." Slaughter-House Cases, (1872) 16 Wall.
U.S. 68.
(27) 13 Wall. 646.
(28) The power exercised in putting down the late rebellion is given
expressly by the Constitution to Congress. That body made the laws and
the President executed them. The granted power carried with it not only
the right to use requisite means, but it reached further and carried
with it also authority to guard against the renewal of the conflict, and
to remedy the evils arising from it in so far as that could be effected
by appropriate legislation. At no time were the rebellious States out
of the pale of the Union. Their rights under the Constitution were
suspended, but not destroyed. Their constitutional duties and
obligations were unaffected, and remained the same. White v. Hart,
(1871) 13 Wall. U.S. 651.
(29) Among the first acts of legislation adopted by several of the
States in the legislative bodies which claimed to be in their normal
relations with the Federal government, were laws which imposed upon the
colored race onerous disabilities and burdens, and curtailed their
rights in the pursuit of life, liberty, and property to such in extent
that their freedom was of little value, while they had the protection
which they had received from their former owners from motives both of
interest and humanity.... These circumstances, whatever of falsehood or
misconception may have been mingled with their presentation, forced upon
the statesmen who had conducted the Federal government in safety through
the rebellion, and who supposed that by the thirteenth article of
amendment they had secured the result of their labors, the conviction
that something more was necessary in the way of constitutional
protection to the unfortunate race who had suffered so much. They
accordingly passed through Congress the proposition for the fourteenth
amendment, and they declined to treat as restored to their full
participation in the government of the Union of the States which had
been in insurrection, until they ratified that article by a formal vote
of their legislative bodies Slaughter-House Cases, (1872) 16 Wall. U.S.
70.
(30) See the exhaustive collection of authorities in Vol. 9, Federal
Statutes, Annotated.
(31) Slaughter House Cases, (1872) 16 Wall. U.S. 73; to same effect see
Elk v. Wilkins, (1884) 112 U.S.101; U.S. v. Wong Kim Ark, (1898) 169
U.S. 676.
(32) U.S. v. Wong Kim Ark, (1898) 169 U.S. 682.
(33) Rassmussen v. U.S. (1905) 107 U. S. 516 U. S. Stat. at L., Vol. 30.
p. 1742.
(34) U.S. Stat. at Large, Vol. 30, p.1742.
(35) See U.S. Stat. at Large, Vol. 30, p. 1755, 7 Fed. Stat. Annot. 814.
(36) U.S. Stat. at Large, Vol. 31, p. 1842, 7 Fed. Stat. Annot. 819.
(37) U.S. Stat. at Large, Vol. 31. p. 1882, 7 Fed. Stat. Annot. 818.
(38) U.S. Stat. at Large, Vol. 30, p. 750, 3 Fed. Stat. Annot. 183.
(39) See title "Hawaiian Islands," in Vol. 3, Fed. Stat. Annot. 181.
(40) U.S. Stat. at Large, Vol. 31, p. 141, 3 Fed. Stat. Annot. 186.
(41) U.S. Stat. at Large,Vol. 31, p. 77, etc., 5 Fed. Stat. Annot.761.
(42) U.S. Stat. at large. Vol. 32. Part 1. p. 1011, 1198, 934.
(43) U.S. Stat. at large, Vol. 32 Part 2, p. 183.
(44) U. S. Stat. at large, Vol. 31, p. 910, 5 Fed. Stat. Annot. 711.
(45) U.S. Stat. at Large, Vol. 32, Part 1, p. 691, 5 Fed. Stat. Annot.
718.
(46) 5 Fed. Stat. Annot.719.
(47) 5 Fed. Stat. Annot.719.
(48) 5 Fed. Stat. Annot. 720.
(49) 5 Fed. Stat. Annot.720.
(50) (1901) 182 U.S. 1.
(51) (1901) 182 U.S. 345.
(52) Sere v. Pitot, (1910) 6 Cranch U.S. 332; American Ins. Co. v. 356
Bales Cotton, (1828) 1 Pet. U.S. 511; Dred Scott v. Sandford, (1856) 19
How. U.S. 393; Stewart V. Kahn, (1870) II.
(53)I. U.S. 5O7; Shivley v. Bowlby, (1894) 152U.S. 48; Delima v.
Bidwell, (1901) 182 U.S. 196; Downes v. Bidwell, (1901) U.S. 250;
U.S. v. Nelson, (1886) 29 Fed. Rep. 2024, (1887) Fed. Rep. 115; Gardiner
v. Miller, (1874) 47 Cal. 575; Franklin v. U.S. (1867) 1 Colo. 38.